Collier, Darrell v. State ( 2004 )

Affirm and Memorandum Opinion filed March 25, 2004

Affirm and Memorandum Opinion filed March 25, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00498-CR

____________

DARRELL COLLIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 517,335

M E M O R A N D U M   O P I N I O N

Appellant Darrell Collier challenges the trial court=s denial of his post-conviction motion for DNA testing.  In three points of error, appellant claims (1) the trial court violated his federal and state constitutional rights by ruling on his motion for DNA testing in his absence; and (2) the trial court erred in considering the State=s affidavits submitted in response to appellant=s motion because they constitute inadmissible hearsay.  We affirm.

In 1989, appellant pleaded guilty to the offense of aggravated sexual assault, and the trial court sentenced him to sixteen years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant did not appeal his conviction. In October of 2003, appellant filed a pro se motion for DNA testing.  The trial court appointed counsel and appellant filed a second motion for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. arts. 64.01B64.05 (Vernon Pamph. 2004).  In his supporting affidavit, appellant sought DNA testing Aof any and all Biological Material Evidence that was secured in relation to the offense of which [he] was convicted of and that is in possession of the State.@  The State responded, attaching three affidavits, one each from the exhibits clerk of the Harris County District Clerk=s Office, the custodian for the Houston Police Department (AHPD@) Crime Lab, and the custodian for the HPD Property Room. The affidavits indicated that the State destroyed any evidence relating to appellant=s case in November of 1993.^[1]  Appellant filed no objections to the State=s evidence, and in April of 2003, the trial court denied appellant=s motion for post-conviction DNA testing and issued findings of fact and conclusions of law.

In his first and second points of error, appellant argues the trial court violated his federal and state constitutional right to confrontation and cross-examination by ruling on his post-conviction motion for DNA testing in his absence. Appellant has not made a distinction between the rights he is afforded under the federal Constitution and the Texas Constitution.  Hence, we address appellant=s points of error solely on the federal constitutional grounds. Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999) (declining to address appellant=s arguments regarding his state constitutional rights when appellant had not made a distinction between the federal Constitution and the Texas Constitution).

Article 64.01 of the Texas Code of Criminal Procedure allows a convicted person to submit to the convicting court a motion for DNA testing.  See Tex. Code Crim. Proc. Ann. art. 64.01(a).  The article requires the motion to be accompanied by a sworn affidavit Acontaining statements of fact in support of the motion.@  See id.  Upon receipt of the motion, the convicting court must provide the State=s attorney with a copy and require the State either to (1) deliver the evidence to the court or (2) explain why it cannot do so.  See Tex. Code Crim. Proc. Ann. art. 64.02(2)(A)‑(B).  The court may then order DNA testing upon certain findings set forth in article 64.03.  See Tex. Code Crim. Proc. Ann. art. 64.03. The Texas Court of Criminal Appeals, examining the language in chapter 64, has stated that nothing in article 64.03 requires a hearing to determine whether appellant is entitled to DNA testing.  See Rivera v. State, 89 S.W.3d 55, 58B59 (Tex. Crim. App. 2002) (contrasting article 64.03 with article 64.04, which specifically requires a hearing).

In this case, it does not appear the trial court held a hearing on appellant=s post-conviction motion for DNA testing.  The court=s order denying appellant=s motion indicates only that it considered the briefing of the parties.  Appellant contends that the confrontation clause of the federal Constitution requires that an accused have the right to confront the witness against him in all criminal prosecutions.  See U.S. Const. amend. VI.  Appellant argues that, because the DNA testing process in Texas relies primarily on the credibility of the State=s witnesses, he has a right to be present for the hearing and to assist with cross-examination of the State=s witnesses.

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. See Thompson v. State, 123 S.W.3d 781, 784B85 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  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.  See Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); Tex. Code Crim. Proc. Ann. arts. 64.01B64.02.  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.  See Cravin, 95 S.W.3d at 509B10.  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.  Id. at 510 (citing Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000)).^[2]  Moreover, appellant was represented by appointed counsel at the time of the ruling. Because it was not fundamentally unfair for the trial court to rule on appellant=s post‑conviction motion in his absence when appellant was represented by counsel, we find no violation of appellant=s due‑process rights.  See id. at 511.  Therefore, the trial court did not violate appellant=s constitutional rights when it ruled on appellant=s post‑conviction motion for DNA testing in his absence.  See id.  Accordingly, we overrule appellant=s first two points of error.

In his third point of error, appellant contends the trial court erred in considering the State=s affidavits because the documents constitute inadmissible hearsay in violation of the Texas Rules of Evidence.  However, before he may complain on appeal, appellant is required to first preserve that error by the appropriate means at the trial level. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  To preserve error for appellate review, an appellant must make a complaint to the trial court by a timely request, objection, or motion that states the ground for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.  Tex. R. App. P. 33.1(a)(1)(A).  In this case, the State filed its response to appellant=s motion for DNA testing on January 28, 2003; the complained-of affidavits were attached to that motion.  The motion states that the State served appellant with a copy of the motion. Nothing in the record indicates that appellant filed an objection to the trial court=s consideration of the affidavits as hearsay.  Thus, appellant waived any objection to consideration of the affidavits. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).

Even if appellant had not waived his complaint regarding the affidavits, appellant=s argument presumes the rules of evidence apply to an article 64.03 proceeding.  However, this article does not require an evidentiary hearing to determine whether DNA evidence exists.  See Rivera, 89 S.W.3d at 59.  Therefore, the rules of evidence are not necessarily implicated.  Mearis v. State, 120 S.W.3d 20, 25 (Tex. AppCSan Antonio 2003, pet. ref=d).  Further, under the procedures set forth in article 64.02, the State is not required to include affidavits with its response in a post‑conviction DNA inquiry.  See Tex. Code Crim. Proc. Ann. art. 64.02(2)(B). Although an applicant=s motion for DNA testing must be accompanied by a sworn affidavit, the language in the statute requires only a written response from the State.  See id.  The trial court may then reach a decision based on these documents without holding a hearing.  Cravin, 95 S.W.3d at 509.  The State attached affidavits as part of its required written response, and the trial court did not err when it considered them. Accordingly, appellant=s third point of error is overruled.

Having overruled all of appellant=s points of error, we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 25, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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

---

^[1]  Appellant contends that evidence in his case was received by the HPD Property Room under two cause numbers: 87938088 and 87938086. Appellant asserts the affidavits submitted by the State indicating that no evidence is in the State=s possession only refer to the 87938088 cause number.  Appellant thus argues that there may be evidence under the other cause number still in the State=s possession. To support his argument, appellant points to one page of an exhibit submitted by the State, which arguably bears the 87938086 cause number.  The page is a poor quality reproduction of a records report.  A better copy of the same page of the records report appears elsewhere in the State=s evidence.  A review of the better copy shows the cause number on the report is 87938088, not 87938086.  Accordingly, we find no evidence that the property room received evidence under the 87938086 cause number.

^[2]  Appellant acknowledges he is aware of the Cravin case issued by the First Court of Appeals, and of our court=s adherence to the reasoning in that case.  See Thompson, 123 S.W.3d at 784B85 (adopting the reasoning in the Cravin case); Mimms v. State, No. 14-02-01196-CR, 2003 WL 21543499, at *2 (Tex. App.CHouston [14th Dist.] July 10, 2003, no pet.) (not designated for publication) (same).  Nonetheless, appellant asks this court to reconsider our position because he argues that the Cravin case was wrongly decided.  Because we find the reasoning of the Cravin case correct, we decline to do so.  Moreover, the Court of Criminal Appeals has cited the Cravin case approvingly for other points of law.  Whitaker v. State, C S.W.3d C, No. 74612, 2004 WL 63981, at *3 (Tex. Crim. App. Jan. 14, 2004) (AWe agree with the First Court of Appeals that >no evidentiary hearing is required, and the state is not required to accompany its response with affidavits.=@).