Will Rogers Bossette v. State

Affirmed and Memorandum Opinion filed July 13, 2006 Affirmed and Memorandum Opinion filed July 13, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00853-CR ____________ WILL ROGERS BOSSETTE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 636978 M E M O R A N D U M   O P I N I O N Appellant Will Rogers Bossette appeals the trial court=s denial of his post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. In 1993, a jury convicted appellant of attempted murder and assessed punishment at sixty years= imprisonment, and this court affirmed his conviction.[1] In 2003, appellant filed a motion for post-conviction DNA testing. The State opposed the motion on the basis that it possessed no testable biological material. See Tex. Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. 2005). The trial court appointed counsel for appellant and held a hearing in appellant=s absence. The State presented affidavits from the exhibits clerk at the Harris County District Clerk=s Office and the records custodians at the Houston Police Department=s crime laboratory and property room showing it possessed no testable biological material, and the trial court denied appellant=s motion on this basis. Appellant raises six issues in this appeal. In his first two issues, appellant argues that the trial court violated his state and federal constitutional rights by holding the hearing he requested in his absence. In his second two issues, appellant contends the trial court again violated his state and federal constitutional rights by denying him the opportunity to confront and cross-examine the State=s witnesses (the affiants). In his fifth issue, appellant claims the State=s affidavits contained inadmissible hearsay. Finally, appellant complains the State failed to establish that it possessed no testable biological materials because it did not submit additional evidence from all police and other law enforcement agencies in Harris County or Aany number of additional outside laboratories or agencies.@ We previously examined and rejected these same six issues in Thompson v. State, 123 S.W.3d 781 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see also Enard v. State, No. 14-05-00311-CR, 2006 WL 1752336 (Tex. App.CHouston [14th Dist.] Mar. 21, 2006, pet. ref=d) (not designated for publication). We continue to follow this analysis, as have other courts considering post-conviction motions for DNA testing.[2] We overrule appellant=s six issues and affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed July 13, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Bossette v. State, No. 14-93-00356-CR, 1997 WL 23266 (Tex. App.CHouston [14th Dist.] Jan. 23, 1997, no pet.). [2] See, e.g., Mearis v. State, 120 S.W.3d 20 (Tex. App.CSan Antonio 2003, pet. ref=d); Cravin v. State, 95 S.W.3d 506 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); see also Whitaker v. State, 160 S.W.3d 5, 8B9 (Tex. Crim. App.) (holding that no evidentiary hearing is required in response to a post-conviction motion for DNA testing), cert. denied, 543 U.S. 864 (2004); Shannon v. State, 116 S.W.3d 52, 54 & n.5 (Tex. Crim. App. 2003) (noting that affidavit evidence from the State Ais perfectly acceptable@ in response to a post-conviction motion for DNA testing).