Raymond Becerra v. State

Affirmed and Memorandum Opinion filed December 11, 2008 Affirmed and Memorandum Opinion filed December 11, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00774-CR ____________ RAYMOND BECERRA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 799376 M E M O R A N D U M   O P I N I O N Appellant, Raymond Becerra, challenges the trial court=s denial of his post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See Code Crim. Proc. Ann. art. 64.01- 64.05 (Vernon 2006). In three issues, appellant contends the trial court violated the Confrontation Clauses of the Texas and United States Constitutions and his State and federal due process rights by conducting a hearing without appellant present. The issues raised by appellant are well settled. Accordingly, we affirm the trial court=s order. Factual and Procedural History On January 13, 1999, Raymond Becerra, appellant, entered a plea of Aguilty@ to the offense of capital murder. See Tex. Penal Code Ann. ' 19.03 (Vernon 2003). The judge sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. On August, 14, 2003, appellant, by and through his appointed counsel, filed a post-conviction motion for DNA testing of evidence pursuant to chapter 64 of the Texas Code of Criminal Procedure. See Code Crim. Proc. Ann. art. 64.01- 64.05. The State responded with an affidavit, demonstrating the DNA results were unfavorable to appellant. On September 14, 2007, the trial court conducted a hearing on appellant=s motion. Since the presence of a court reporter was waived for the hearing, it is not clear from the record whether appellant was present at the hearing.[1] The trial court denied appellant=s motion. In three points of error, appellant contends the trial court violated his due process rights (1) under the United States Constitution by conducting a post-conviction DNA hearing in his absence, (2) under the United States Constitution by denying him the opportunity to confront and cross-examine the witnesses against him, and (3) under the Texas Constitution by conducting a post-conviction DNA hearing in his absence and denying him the opportunity to confront and cross-examine the witnesses against him. See U.S. Const. Amends. VI, XIV ' 1; Tex. Const. art. I, ' 10. Discussion In a factually analogous case, we previously rejected the argument that a movant for post-conviction DNA testing has a right either to be present or to cross-examine witnesses at a hearing on the motion. Thompson v. State, 123 S.W.3d 781, 784-85 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Specifically in regard to the movant=s absence, we stated: Unlike in a criminal trial, a chapter 64 proceeding such as this one does not implicate an appellant=s confrontation-clause rights because this type of proceeding does not necessarily involve any witnesses or accusations against the appellant. Rather, as set forth in chapter 64, the proceeding involves a motion made by the appellant followed by the State=s non-accusatory response required under the statute. This type of proceeding is analogous to a habeas corpus proceeding in that it is an independent, collateral inquiry into the validity of the conviction. Therefore, as in a post-conviction writ of habeas corpus proceeding, an applicant for a post-conviction DNA analysis enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing. Moreover, according to the record, appellant was represented by appointed counsel at the time of the hearing. Because it was not fundamentally unfair for the trial court to hold the post-conviction hearing in appellant=s absence when appellant was represented by counsel, we find no violation of appellant=s due-process rights. Therefore, the trial court did not violate appellant=s federal or state constitutional rights when it conducted a post-conviction hearing in appellant=s absence, if it indeed did so. Id. In regard to rights of confrontation and cross-examination, we stated that these rights do not apply in a post-conviction DNA proceeding for the same reasons that the right to be present did not apply. Id. at 785. Appellant does not distinguish Thompson from the case at hand, nor does he cite any authority that would undermine our decision in Thompson. Thus, we hold appellant does not have a constitutional right to confront his accusers or be present at a post-conviction DNA hearing. See id. at 784-85. Accordingly, we overrule appellant=s three issues on appeal. Conclusion Having overruled all of appellant=s issues, we affirm the order of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed December 11, 2008. Panel consists of Justices Anderson, Frost, and Senior Justice Hudson.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] Although the Court=s order on the motion states appellant was present for the hearing, we will still address the merits of appellant=s arguments. * Senior Justice J. Harvey Hudson sitting by assignment.