Coleman, Marvin v. State ( 2003 )

Affirmed and Memorandum Opinion filed November 20, 2003

Affirmed and Memorandum Opinion filed November 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01197-CR

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MARVIN COLEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 414,237

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M E M O R A N D U M   O P I N I O N

            Appellant Marvin Coleman appeals from the trial court’s denial of his post-conviction motion for DNA testing.  See Tex. Code Crim. Proc. art. 64.01, et seq.  In six issues, appellant contends (1) the trial court violated the Confrontation Clauses of the Texas and United States Constitutions and his federal due process rights by conducting a “final hearing” without appellant present; (2) the trial court considered inadmissible hearsay evidence; and (3) the State failed to establish there were no biological materials in its possession.  We affirm.

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Background Information

            In 1988, a jury convicted appellant of aggravated sexual assault of a person younger than fourteen years and sentenced him to confinement for fifty years.  Appellant’s conviction was affirmed by the First Court of Appeals in Coleman v. State, No. 01-86-00964-CR, 1988 WL 15150, at *3 (Tex. App.—Houston [1st Dist.] Feb. 25, 1988) (not designated for publication).  In February 2002, appellant filed a pro se motion for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. art. 64.01, et seq. Appellant failed to attach the required affidavit to his motion.  See Tex. Code Crim. Proc. art. 64.01.  Appellant’s attorney thereafter filed a new motion, with appellant’s affidavit attached, stating the victim’s rape kit and a light green shirt and short set were recovered during investigation of the offense and, if tested, would exculpate appellant.  The State filed a response to appellant’s motion, supported by affidavits, asserting there was no evidence in its possession to test.^[1]  The trial court denied appellant’s motion and adopted the State’s proposed findings of fact and conclusions of law.  In pertinent part, the Court held the following:

Findings of Fact . . .

7.         The Court, based on Defendant’s failure to meet the requirement of Article 64.03(a)(1), finds in the negative the issues listed in Article 64.03(a)(1).^[[2]]

8. The Court finds that, based on the lack of evidence, Defendant fails to show by a preponderance of the evidence, that a reasonable probability exists that Defendant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

9. The Court finds that Defendant fails to meet the requirement of Article 64.03(a)(2)^[[3]] of the Texas Code of Criminal Procedure concerning his burden of proof.

Conclusions of Law

1.         The Court, based on its negative findings on the issues listed in Article 64.03(a)(1) and its finding that Defendant failed to meet the burden of proof requirements under Article 64.03(a)(2), hereby DENIES the request for DNA testing in cause number 414237.

Discussion

            In appellant’s first two issues, he claims his federal constitutional right to due process and his state constitutional right to confrontation and cross-examination were violated when the trial court conducted a hearing in his absence. There is no evidence however to support appellant’s claim.  The only evidence in the record regarding a hearing on appellant’s motion reflects he was present at the hearing.^[4]  In appellant’s objections to the proceedings, appellant requested “that the record reflect that the State, the undersigned counsel, and the Movant [appellant] are before this Court.”  Appellant also requested the record reflect that “the purpose of this hearing is to finally adjudicate all issues in the trial court pursuant to Movant’s motion for DNA testing of biological materials.” The trial court’s order, denying appellant’s motion for DNA testing, specifically stated counsel for the State and Movant and the Movant himself were present.  Therefore, because the appellate record does not support appellant’s contention that he was absent, we conclude his first two issues are without merit.^[5]     Further, even if appellant had been absent at the hearing, neither the United States nor Texas Constitutions mandate an applicant’s presence at a post-conviction DNA testing proceeding.  Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  In Cravin, the First Court of Appeals considered this same issue and likened a post-conviction DNA proceeding to a post-conviction habeas corpus proceeding, a collateral proceeding that does not involve witnesses or accusations against a criminal defendant. Id.  We agree.  In both types of proceedings, an applicant enjoys neither a presumption of innocence nor a constitutional right to be present.  Id. (citing Ex Parte Mines, 26 S.W.3d 910, 914–15 (Tex. Crim. App. 2000)).  We overrule appellant’s first two issues.

            In appellant’s third and fourth issues, he contends his federal due process rights and state protected right to confrontation and cross-examination were violated when he was denied the opportunity to confront and cross-examine the witnesses against him.  Specifically, appellant contends he should have had the opportunity to confront the State’s witnesses, those affiants stating there was no evidence to be tested for DNA.  However, just as appellant has no constitutional right to be present at a post-conviction DNA proceeding, we hold, for the same reasons, that appellant does not have the right to confront and cross-examine witnesses at the proceeding. See id. 

            Further, appellant’s contention that his due process rights were violated is also without merit.  The Fourteenth Amendment’s due process guarantee of fundamental fairness requires the State to conduct itself in a manner that assures criminal defendants have a fair opportunity to present their defense.  U.S. Const. amend. XIV.  However, there is no precedent that the Fourteenth Amendment assures the privilege of a defendant’s “presence when presence would be useless.”  Cravin, 95 S.W.3d at 510; see Snyder v. Massachusetts, 291 U.S. 97, 106–07 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 4–5

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(1964).  Here, appellant was represented by appointed counsel during the entire proceeding as provided by article 64.  See Tex. Code Crim. Proc. art. 64.01(c).  There is nothing fundamentally unfair about the procedures set forth in article 64 followed by the convicting court.  Cravin, 95 S.W.3d at 511.  Therefore, we hold appellant’s due process rights were not violated and overrule appellant’s third and fourth issues. 

            In appellant’s fifth issue, he claims the trial court erred in considering inadmissible hearsay affidavits submitted by the State.  However, the State is not required to file affidavits with its response to an applicant’s motion for DNA testing.  Id. at 509.  The trial court may reach a decision based solely on the convicted person’s motion and affidavit and the State’s response.  Id.  Therefore, the State’s affidavits were unnecessary to the trial court’s decision.  Hence, we overrule appellant’s fifth issue.

            In appellant’s sixth issue, he contends the trial court erred in denying his motion for DNA testing because “the State failed to establish that no such materials were still in possession of the State.”  We disagree. A court may order post-conviction DNA testing only if the court finds (1) the evidence still exists in a condition making DNA testing possible, and (2) there exists a reasonable probability the person would not have been convicted if exculpatory results had been obtained.  Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), (a)(2)(A).  In reviewing the trial court’s decision, we employ a bifurcated standard of review: “we afford almost total deference to a trial court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues.”  Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).  Thus, we review the trial court’s decision regarding whether the claimed DNA evidence exists and its condition to be tested deferentially.  Id.  However, the question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is reviewed de novo as it is an application-of-law-to-fact question that does not relate to credibility and demeanor.  Id. 

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            Here, the State responded to appellant’s motion for DNA testing, explaining that the requested materials were not in the possession of the Harris County Clerk’s office, the Houston Police Department Property Room, or the Houston Police Department Crime Lab.  The State further provided affidavits supporting its response.  We conclude the statements made by the State in its response were sufficient to enable the trial court to find the evidence did not exist.  Furthermore, appellant failed to meet his burden of proving that a reasonable probability existed that he would not have been convicted if exculpatory results had been obtained.  Appellant was convicted of aggravated sexual assault of a person younger than fourteen years.  The complainant in the case was appellant’s six-year-old daughter.  See Coleman v. State, No. 01-86-00964-CR, 1988 WL 15150, at *1 (Tex. App.—Houston [1st Dist.] Feb. 25, 1988) (not designated for publication). At trial, the complainant testified that in the presence of other adults, appellant sexually molested her. Id.  She further testified that each of the other adults engaged in similar conduct with her. Id.  Therefore, even assuming evidence existed that was available to test, any exculpatory evidence (which could have been the presence of the DNA of another adult that molested complainant) would not have precluded his conviction.  We overrule appellant’s sixth issue.

            Accordingly, the judgment of the trial court is affirmed.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed November 20, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  The State submitted sworn affidavits from an employee of the Houston Police Department (“HPD”) Property Room, an employee of the HPD Crime Lab, and an employee of the Harris County District Clerk’s office stating that these entities were not in possession of any property or evidence pertaining to appellant’s case. Significantly, the State was not required to preserve evidence containing biological materials until April 2001.  See Tex. Code. Crim. Proc. art. 38.39 (requiring the State to preserve evidence containing biological materials under certain circumstances, effective April 5, 2001).

            ^[2]  Under article 64.03(a)(1), the court may order DNA testing if it finds the evidence “still exists and is in a condition making DNA testing possible; and has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and identity was or is an issue in the case.”  Tex. Code Crim. Proc. art. 64.03(a)(1)(A)–(B).

            ^[3]  In addition to the provisions listed in article 64.03(a)(1), this subsection further requires that the convicted person establish by a preponderance of the evidence that “the person would not have been convicted if exculpatory results had been obtained through DNA testing; and the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.”  Tex. Code Crim. Proc. art. 64.03(a)(2)(A)–(B).

            ^[4]  Because both parties waived the presence of a court reporter, there is no record of the hearing. 

            ^[5]  An evidentiary hearing is not required on a motion for DNA testing under article 64. See Tex. Code Crim. Proc. art 64.01–.04; Rivera v. State, 89 S.W.3d 55, 58–59 (Tex. Crim. App. 2002).  The only hearing that is provided for in article 64 is after DNA testing is ordered.  Rivera, 89 S.W.3d at 59.  At that time, the Code provides that the convicting court “shall hold a hearing and make a finding as to whether had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Tex. Code Crim. Proc. art. 64.04.