Humberto Lara v. State

Affirmed and Memorandum Opinion filed June 24, 2008 Affirmed and Memorandum Opinion filed June 24, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-07-00975-CR _______________ HUMBERTO LARA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 821151 M E M O R A N D U M  O P I N I O N This is an appeal from a post-conviction DNA hearing. In 1999, appellant, Humberto Lara, was convicted of aggravated sexual assault of a child and sentenced to 35 years confinement. In 2005, appellant filed a post-conviction motion for DNA testing of evidence pursuant to chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006 & Supp. 2007). The State responded and included affidavits attesting that appellant failed to establish that (1) evidence still exists; and (2) this evidence is in condition making DNA testing possible. The trial court denied appellant=s motion. In his three issues on appeal, appellant contends that the trial court violated his rights under the United States Constitution and Texas Constitution by (1) conducting a hearing on his motion for DNA testing in his absence; and (2) 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. We affirm. Analysis A trial court may order DNA testing under chapter 64 if it finds that (1) the evidence still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected to a chain of custody; and (3) identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1). Additionally, the movant must establish by preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing and that the request for testing is not made to unreasonably delay the sentence. Id. art. 64.03(a)(2). In a similar case, this court rejected arguments that a movant for post-conviction DNA testing has a right to be present and confront and 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). In regard to the movant=s absence,[1] we explained: Unlike 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 applicant 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. 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. Id. (citations omitted). Further, with regard to a movant=s rights to confrontation and cross-examination, we stated that these rights did not apply in a post-conviction DNA proceeding for the same reasons that the right to be present did not apply. Id. at 785. In light of our holding in Thompson, we reject appellant=s arguments and hold that the trial court did not violate his federal or state constitutional rights when it conducted a post-conviction hearing in appellant=s absence, if indeed it did so. Accordingly, we affirm the trial court=s judgment. /s/ William J. Boyce Justice Judgment rendered and Memorandum Opinion filed June 24, 2008. Panel consists of Chief Justice Hedges, Justice Boyce and Senior Justice Price.* Do not publish C Tex. R. App. P. 47.2(b). [1] We note that the trial court=s order addressing appellant=s objections to proceedings and evidence in post-conviction motion states: AThe Court further finds that counsel for the State and Movant are present. The Movant is also present.@ * Senior Justice Frank C. Price sitting by assignment.