Parker, Joe Rogers v. State

Affirmed and Memorandum Opinion filed September 28, 2006 Affirmed and Memorandum Opinion filed September 28, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00873-CR ____________ JOE ROGERS PARKER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 829249 M E M O R A N D U M   O P I N I O N Appellant, Joe Rogers Parker, appeals from the trial court=s denial of his motion for post-conviction DNA testing. In six points of error, appellant complains the conducting of the hearing on his motion without his presence violated federal and state constitutional rights, the affidavits submitted by the State constitute inadmissible hearsay, and the State failed to establish that no biological materials were in its possession. We affirm. Appellant was convicted of aggravated sexual assault of a child and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. The First Court of Appeals affirmed appellant=s conviction and sentence. Parker v. State, No. 01-00-01007-CR, 2001 WL 953198 (Tex. App.CHouston [1st Dist.] Aug. 23, 2001, pet. ref=d) (not designated for publication). On September 3, 2002, and December 1, 2003, appellant filed two pro se motions for post-conviction DNA testing.[1] See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005) (providing procedure for convicted person to submit to convicting court motion for forensic DNA testing of evidence containing biological material). On March 22, 2004, the State filed a motion requesting the denial of DNA testing, with supporting affidavits asserting that the Houston Police Department (AHPD@) Property Room, the HPD Crime Lab, the Children=s Assessment Center, and the District Clerk=s Office were not in possession of such evidence. See id. Tex Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. 2005) (requiring State to deliver evidence to the court, with description of evidence, or explain why it cannot deliver such evidence to the court). Appellant filed written objections that the State had failed to deliver the evidence or explain why it could not deliver the evidence, he had been denied the right to be present at the hearing on his motion in violation of his rights to due process and confrontation and cross-examination, the issues were being decided on affidavits in violation of his right to confrontation and cross-examination, and the affidavits constituted inadmissible hearsay. On August 19, 2004, the trial court denied appellant=s motions and issued findings of fact and conclusions of law, finding that, based on the Acredible affidavits@ submitted by the State, appellant failed to meet the requirements of Article 64.03(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2005) (setting forth requirements that must be satisfied before the convicting court may order forensic DNA testing). In his first through fourth points of error, appellant contends the hearing on his motions for post-conviction DNA testing violated his federal right to due process of law and his federal and state rights to confront and cross examine witnesses because he was not present. The trial court=s order denying appellant=s motion states that counsel for the State and appellant were present, but appellant was not. Appellant argues that his Apresence would be required at any hearing making a final determination of [his] rights.@ Contrary to appellant=s assumption that chapter 64 requires the convicting court to conduct an evidentiary hearing on a motion for DNA testing, A[n]othing in article 64.03 requires a hearing of any sort concerning the trial court=s determination of whether a defendant is entitled to DNA testing.@ Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002). Rather, the convicting court may reach a decision on whether evidence exists based on the sufficiency of the State=s written explanation. Mearis v. State, 120 S.W.3d 20, 24 (Tex. App.CSan Antonio 2003, pet. ref=d); Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Thus, no evidentiary hearing is required. Mearis, 120 S.W.3d at 24; Cravin, 95 S.W.3d at 509. Even if the court holds a hearing on a convicted person=s motion for DNA testing, the applicant is not entitled to be present at the hearing. Appellant contends the statutory procedure for requesting DNA testing is similar in nature to a post trial motion for new trial and, therefore, he has the right to be present at the DNA hearing. See Ruiz v. State, 92 Tex. Crim. 73, 242 S.W. 231, 232 (1922) (holding the Texas Constitution requires the defendant=s presence when the trial court acts on the motion for new trial). To the contrary, a post conviction DNA proceeding is more like a habeas corpus proceeding. Unlike a criminal trial in which the guilt of the defendant is at issue and the Sixth Amendment requires his presence, a habeas corpus proceeding is an independent proceeding that makes a collateral inquiry into the validity of the conviction. Mearis, 120 S.W.3d at 25 (citing United States v. Hayman, 342 U.S. 205, 222B23 (1952); Ex parte Mines, 26 S.W.3d 910, 914B15 (Tex. Crim. App. 2000)). Like a habeas corpus proceeding, a post-conviction DNA testing proceeding is an independent proceeding that makes a collateral inquiry into the validity of the conviction. Id. Thus, appellant was not entitled to be present at any hearing held by the court on his motion for DNA testing. See Cravin, 95 S.W.2d at 510 (holding applicant for post-conviction DNA proceeding enjoys neither presumption of innocence nor constitutional right to be present at a hearing). Finally, because neither the United States nor the Texas Constitution provides appellant the right to be physically present at a post-conviction DNA proceeding, he does not have the right to cross examine witnesses. Mearis, 120 S.W.3d at 25; Cravin, 95 S.W.3d at 510. Because the post-conviction DNA proceeding did not implicate appellant=s due process and confrontation rights, his first through fourth points of error are overruled. In his fifth point of error, appellant contends the trial court erred in considering affidavits submitted in support of the State=s motion to deny DNA testing because they constituted inadmissible hearsay in violation of the Texas Rules of Evidence. No evidentiary hearing is required and the State is not required to accompany its response with affidavits; instead, the convicting court may reach a decision on whether evidence exists based on the sufficiency of the State=s written explanation. Mearis, 120 S.W.3d at 24; Cravin, 95 S.W.3d at 509. Therefore, the rules of evidence are not implicated and appellant=s fifth point of error is overruled. In his sixth point of error, appellant contends the trial court erred in denying his motions for DNA testing of biological materials because the State failed to establish that no such materials were still in its possession. Appellant asserts that although the State provided affidavits from the custodians of the HPD Property Room, the HPD Crime Lab, the Child=s Assessment Center, and the Harris County District Clerk=s Office, each attesting that no biological evidence related to appellant=s case was in its possession, the State offered no evidence to show that no other police agency had seized evidence related to his case or that such evidence would not still be in that law enforcement agency=s possession. Appellant, however, has waived this complaint on appeal by failing to raise it in the trial court. Tex. R. App. P. 33.1. In any event, we conclude the State established that it had no biological evidence in its possession. We defer to the trial court=s determination of issues of historical fact and the application of law-to-fact issues that turn on credibility or demeanor, but review de novo other application of law-to-fact issues. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 864 (2004). First, chapter 64 does not require the State to obtain an affidavit of no testable evidence from every lab or law enforcement agency in the region. Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). Second, the State was not required to submit affidavits with its motion to deny DNA testing and, in determining whether evidence exists, the trial court could make the determination based on the sufficiency of the State=s written response. Mearis, 120 S.W.3d at 24; Cravin, 95 S.W.3d at 511. The State=s motion requesting the denial of DNA testing explained there was no evidence to test because the records of the HPD Property Room, the HPD Crime Lab, the Children=s Assessment Center, and the Harris County District Clerk=s Office show these respective agencies were not in possession of any DNA-testable material. Appellant=s sixth point of error is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed September 28, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The trial court apparently appointed counsel to represent appellant.