Leon Harrison v. State

Affirmed and Memorandum Opinion filed January 29, 2008 Affirmed and Memorandum Opinion filed January 29, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00287-CR ____________ LEON HARRISON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 635921 M E M O R A N D U M   O P I N I O N Appellant was convicted of sexual assault and sentenced to confinement for two years in the Texas Department of Criminal Justice, Institutional Division. In a single issue, Appellant challenges the trial court=s denial of his second motion for post-conviction forensic DNA testing. We affirm. I. Factual and Procedural Background The complainant, a 15-year-old female, alleged that on February 9, 1992, she was raped by several men, including Appellant. Two of the accused men provided written confessions to the sexual assault; both implicating Appellant as an additional assailant. A fourth man was investigated, but released after the complainant did not identify him in a line-up. Instead, the complainant identified Appellant in the line-up. Appellant signed a written confession and entered a plea of guilty. On September 19, 1992, Appellant was convicted of sexual assault and sentenced to confinement for two years in the Texas Department of Criminal Justice, Institutional Division. Appellant subsequently filed a motion for post-conviction forensic DNA testing pursuant to Chapter 64 of the Code of Criminal Procedure. The trial court denied the motion, the denial was affirmed by this court, and mandate was issued. Appellant, acting pro se, filed a second motion for post-conviction forensic DNA testing. In this motion, Appellant admitted that the complainant identified him at a line-up procedure as one of the men who Agang raped@ her. However, Appellant claimed that he pleaded guilty because his attorney advised him that he would not win at trial. Appellant claimed that he helped transport the complainant to the house where the incident occurred, but that he was in the living room on the phone during the incident. Appellant gave a statement regarding this incident at the police station, but claimed that the police officer misquoted Appellant=s story when taking his statement. He further alleged that the officer failed to fix the mistake even after Appellant brought it to his attention. Finally, Appellant asserted that the Houston Police Department is in possession of the following three items, and that he is entitled to DNA testing on those three items: (1) a vaginal swab, (2) a blood sample, and (3) a pair of panties. Appellant argued that a negative test result showing that his DNA was not present would tend to show his innocence, especially in light of his recantation of his confession and his allegation that authorities coerced his confession. This motion was also denied. Appellant timely filed notice of appeal. We affirm. II. Issues and Analysis In three issues, Appellant contends that the trial court erred by refusing to hold a hearing on his second request for post-conviction forensic DNA testing. Appellant specifically asserts that he: (1) established that the State was in possession of evidence which could have been subjected to DNA testing, (2) brought new supporting evidence and was denied the right to represent himself at the hearing, and (3) was denied the opportunity to challenge an inaccurate statement used against him during the first DNA hearing. A. Appellant was not entitled to a hearing. We first address Appellant=s second and third issues, in which Appellant claims he was denied a hearing on his motion. An appellant is not automatically entitled to a hearing on a motion for DNA testing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (concluding that Chapter 64 does not require the trial court to conduct a hearing); Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002) (holding that applicants for post conviction DNA forensic testing under 64.03 are not entitled to an evidentiary hearing with live testimony). Nothing in article 64.03 requires a hearing concerning whether a defendant is entitled to DNA testing; however, the Legislature has provided for a hearing under article 64.04 after a convicted person has obtained DNA testing under article 64.03. Tex. Code Crim. Proc. Ann. art. 64.03, 64.04 (Vernon 2006); Rivera, 89 S.W.3d at 58-59. Because Appellant has not already obtained DNA testing pursuant to article 64.03, the trial court did not err in refusing to conduct a hearing under article 64.03. See Rivera, 89 S.W.3d at 59. Further, Appellant=s motion does not satisfy the requirements of Article 64.01(b). Appellant=s motion was therefore insufficient to restore jurisdiction to the trial court. See Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon 2006). Article 64.01(b) states: The motion may request forensic DNA testing only of evidence described by Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but: (1) was not previously subjected to DNA testing: (A) because DNA testing was: (i) not available; or (ii) available, but not technologically capable of providing probative results; or (B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. Id. (emphasis added). Appellant=s second motion for post-conviction forensic DNA testing does not identify how this case satisfies the requirements of article 64.01(b). Construing Appellant=s pro se pleadings liberally, even if we were to determine that the trial court had jurisdiction to hear the motion under article 64.01(b), Appellant was not entitled to a hearing on the motion. B. Appellant was not entitled to DNA testing under Article 64.03. In addressing Appellant=s first point of error we conclude that the trial court did not err in denying the motion. To obtain post-conviction forensic DNA testing, an Appellant must show that: (1) evidence still exists and is in a condition such that DNA testing is possible, (2) the evidence has been subjected to a sufficient chain of custody to establish that it has not been materially altered, (3) identity is or was an issue. Id. art 64.03(a)(1). Additionally, the convicted person satisfy a fourth requirement and establish by a preponderance of the evidence that Athe person would not have been convicted if exculpatory results had been obtained through DNA testing@ and Athe request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or the administration of justice.@ Id. art 64.03(a)(2). Appellate courts review a trial court=s decision to deny forensic DNA testing under article 64.03 by using the bifurcated Guzman standard: almost total deference is afforded to the trial court=s determination of the fact issues and application of law to facts which turn on credibility or demeanor, but the court reviews other application of law to fact issues de novo. Rivera, 89 S.W.3d at 59 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Under this standard, the following issues are reviewed with deference to the trial court: (1) the credibility of Appellant=s recantation, (2) the credibility of Appellant=s claim that authorities coerced his confession, (3) the credibility of the witness=s letters to Appellant that Appellant claimed promote his innocence, and (4) whether the DNA evidence identified by Appellant exists and is in a condition to be tested. See id. at 60. AAlthough there may be subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.@ Id. Absent express findings, a trial court=s ruling must be sustained if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court=s ruling in the present case can be supported on the theory that Appellant did not satisfy the requirements necessary to obtain post-conviction DNA testing pursuant to Chapter 64. The trial court may have found that Appellant failed to satisfy the fourth requirement by showing by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through forensic DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2). The complainant identified Appellant in a line-up, Appellant confessed in 1992, and two additional assailants confessed in 1992, both implicating Appellant as an additional assailant. Even if the trial court concluded that negative DNA test results supplied an exculpatory inference, it is possible that the trial court determined that such an inference was outweighed by other evidence in the case. Not only did Appellant admit to the sexual assault, his admissions were also corroborated by the confessions of two additional assailants and identification by the complainant. Further, because there were multiple assailants, a negative result in the post-conviction DNA test would not conclusively exonerate Appellant. Even if negative test results were to supply an exculpatory inference, such an inference would not conclusively outweigh the other evidence of Appellant=s guilt. See Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.CHouston[1st Dist.] 2002, pet. ref=d). Alternatively, the absence of DNA evidence could simply mean that no forensic evidence was left in the complainant by Appellant during the sexual assault. See Rivera v. State, 89 S.W.3d 55, 60 n. 20 (Tex. Crim. App. 2002). Consequently, we conclude that the trial court did not err in denying Appellant a post-conviction DNA testing under Chapter 64. III. Conclusion Based on the foregoing, the trial court did not err in denying Appellant a hearing on his motion for post-conviction forensic DNA testing or in denying the motion. Therefore, we affirm he trial court=s order. /s/ Frank Price Senior Justice* Judgment rendered and Memorandum Opinion filed January 29, 2008. Panel consists of Justices Yates, Guzman, and Price. Do not publish C Tex. R. App. P. 47.2(b). * Senior Justice Frank Price sitting by assignment.