Mark Lomax v. State

Affirmed and Memorandum Opinion filed November 25, 2008 Affirmed and Memorandum Opinion filed November 25, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-07-00934-CR _______________ MARK LOMAX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 907028 M E M O R A N D U M   O P I N I O N Appellant Mark Lomax challenges the trial court=s denial of his motion for post-conviction DNA testing. He also complains that he received ineffective assistance of counsel at the hearing on his motion. We affirm. I. Background In 2003, appellant was convicted of felony murder and sentenced to 55 years= confinement in the Texas Department of Criminal Justice, Institutional Division. The felony murder offense was predicated on the felony offense of driving while intoxicated. His conviction was affirmed by the Tenth Court of Appeals. Lomax v. State, No. 10-03-00156-CR, 2006 WL 871723, at *1 (Tex. App.CWaco March 29, 2006), aff=d 233 S.W.3d 302 (Tex. Crim. App. 2007). In September 2007, he filed a motion requesting DNA testing of any evidence in the State=s possession containing biological material. The State filed a response opposing appellant=s motion, asserting that appellant failed to carry his burden to show that identity was or is an issue in the case and therefore did not meet the requirements of article 64.03 of the Texas Code of Criminal Procedure. The trial court denied appellant=s motion, finding that appellant failed to establish that (a) identity was or is an issue and (b) he would not have been convicted if exculpatory results had been obtained through DNA testing, as required by article 64.03. Appellant timely filed this appeal. II. Issues Presented In his first issue, appellant argues the trial court erred in finding that he failed to show a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. In his second issue, appellant complains that he received ineffective assistance of counsel at the hearing on his motion for DNA testing. III. Analysis A. Denial of Appellant=s Motion for DNA Testing We review a trial court=s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the trial court=s determination of issues of historical fact and the application of law to the fact issues that turn on an evaluation of credibility and demeanor. Id. But where, as here, the trial record and affidavit of appellant are the only sources of information supporting the motion, the trial court is in no better position than we are to make its decision, and we review the issues de novo.[1] See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). On the motion of a convicted person, a court may order forensic DNA testing of evidence only if the court finds (1) evidence, which has been subjected to a sufficient chain of custody to establish its integrity, exists in a condition making DNA testing possible; (2) identity was or is an issue in the case; and (3) the defendant establishes by a preponderance of the evidence that (a) he would not have been convicted if exculpatory results had been obtained through DNA testing, and (b) the request for DNA testing is not made to unreasonably delay the execution of his sentence or interfere with the administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2008). Such a motion must be accompanied by an affidavit containing facts in support of the motion. See id. art. 64.01(a). In his motion, appellant offered no facts regarding his conviction. Instead, his motion simply tracked the language of the statute. In his affidavit, appellant averred that he is innocent of the underlying offense without explaining how genetic evidence would exculpate him or otherwise providing facts in support of his motion.[2] See id. Appellant cites Smith v. State for the proposition that a claim of actual innocence, coupled with a judicially-noticed trial record, may be sufficient to meet the requirements of Chapter 64, thus warranting DNA testing. 165 S.W.3d 361, 364B65 (Tex. Crim. App. 2005). Smith, however, is distinguishable in several respects. First, as noted above, appellant made no factual assertions in his motion. In his affidavit, he averred that he was innocent and he Abelieved@ biological material had been collected in his case. In contrast, the appellant in Smith included numerous factual assertions in his affidavit, such as the fact that he was convicted of aggravated sexual assault and biological material secured by law enforcement officials existed that could be subjected to DNA testing. Id. at 362. Here, it is unclear what, if any,Abiological materials@ were collected in this case.[3] Appellant did not specify the Abiological materials@ he wished to have tested. Cf. Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (upholding the denial of appellant=s motion for DNA testing in part because it was unclear what evidence the appellant wanted tested and he did not provide any facts to clarify this issue). The only guidance provided is in appellant=s brief, in which he states, AApparently, the appellant is suggesting that he was not intoxicated, the results of the blood test were inaccurate and he did not cause the accident.@ But appellant has not explained how DNA testing of any biological material would show he was not intoxicated or that any blood test results from his original conviction were inaccurate.[4] In sum, appellant has not established, by a preponderance of the evidence, that he would not have been convicted if exculpatory results had been obtained through DNA testing.[5] We therefore overrule his first issue. B. Ineffective Assistance of Counsel In his second issue, appellant asserts that his counsel was ineffective for failing to request a court reporter to record the hearing on his DNA motion. But the record does not reflect that a hearing was conducted on appellant=s motion. Moreover, nothing in Chapter 64 requires the trial court to conduct a hearing to determine whether a defendant is entitled to DNA testing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). A hearing is only required after the trial court examines the results of any DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp. 2007). Counsel can hardly be considered ineffective for failing to request a court reporter for a hearing that did not occur.[6] Under these circumstances, we overrule appellant=s second issue. IV. Conclusion Having overruled appellant=s two issues, we affirm the trial court=s denial of appellant=s motion for post-conviction DNA testing. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed November 25, 2008. Panel consists of Chief Justice Hedges, Justices Guzman, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The reporter=s record from appellant=s trial has not been included in our appellate record, nor does the record reflect that the trial court was asked to take judicial notice of it. Neither appellant nor the State requested the inclusion of the reporter=s record in our appellate record. But as discussed infra, appellant=s failure to meet the requirements of Chapter 64 is apparent without reviewing the reporter=s record from appellant=s trial. [2] Appellant=s affidavit provides, in its entirety, as follows: My name is Mark Lomax, and I am the Defendant in cause number 907028, in the 232nd District Court of Harris County, Texas. I was convicted by a jury in this case, but I am innocent. I did not commit this crime. I believe that there was biological material collected in this case. If this evidence is properly compared to my DNA, then I will be able to prove my innocence since I did not commit this offense. If proper DNA testing would have been done on the evidence before my trial, the tests would have shown that I did not commit this crime. I feel that through proper DNA testing, I can now show that I am innocent. This is the first time I have requested that the evidence be tested for DNA purposes. [3] In his brief, appellant states, AClearly, if the appellant=s DNA [] did not match the DNA in the blood sample taken at the hospital, which revealed a blood alcohol level [of] .277, there would be insufficient proof that the appellant was intoxicated, and he would not have been convicted of Felony Murder with D.W.I. as the underlying felony.@ (emphasis added). But nothing in our record indicates that any blood sample taken by the hospital was in possession of the State during the trial of his offense. See Tex. Code Crim. Proc. Ann. art. 64.01(b) (AThe motion may request DNA testing only of evidence . . . that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the [S]tate during the trial of the offense . . . .@ (emphasis added)). [4] In this case, as in Smith, biological evidence was obtained after an offense. In Smith, however, the offense at issue was aggravated rape. 164 S.W.3d at 361. Biological evidence frequently is collected to provide genetic identification of the perpetrator in cases involving sexual assault. Here, however, appellant was convicted of felony murder in the course of driving while intoxicated. See Lomax, 2006 WL 871723, at *1. The nature of this offense, i.e. causing the death of an occupant of a vehicle by striking it with another vehicle while intoxicated, is one in which biological evidence may be collected to establish the presence and concentration of alcohol or drugs in the driver=s bloodstream. Although the present case and Smith both concern tests of biological evidence, the tests involved are readily distinguishable. Unlike the circumstances presented in Smith, the appellant in this case has not shown that his identity as the perpetrator of the offense is at issue such that genetic evidence gathered from biological samples might be exculpatory. Moreover, appellant has cited no evidence that blood drawn from him at the hospital after the accident was ever in the State=s possession. [5] Further, appellant=s motion and affidavit do not meet the requirements of article 64.01. See Tex. Code Crim. Proc. Ann. art 64.01(a) (AA convicted person may submit to the convicting court a motion for forensic testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.@ (emphasis added)). [6] Several other intermediate courts of appeals have concluded that a claim of ineffective assistance of counsel is not cognizable in Chapter 64 proceedings. See, e.g., Dixon v. State, 242 S.W.3d 929, 933 (Tex. App.CDallas 2008, no pet.) (concluding that such a claim is unavailable in a Chapter 64 DNA appeal); Hooks v. State, 203 S.W.3d 861, 864B65 (Tex. App.CTexarkana 2006, pet. ref=d) (same); Morris v. State, 110 S.W.3d 100, 103 (Tex. App.CEastland 2003, pet. ref=d) (same); In re Beasley, 107 S.W.3d 696, 697 (Tex. App.CAustin 2003, no pet.) (same). But see Ard v. State, 191 S.W.3d 342, 345B46 (Tex. App.CWaco 2006, pet. ref=d) (holding that ineffective assistance of counsel may be raised in Chapter 64 appeal, but concluding that appellant had not established he was prejudiced by any alleged ineffective assistance).