Waters, Teresa Ann v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 3, 2007

Affirmed and Memorandum Opinion filed April 3, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00233-CR

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TERESA ANN WATERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 911887

M E M O R A N D U M   O P I N I O N

In five issues, appellant Teresa Ann Waters appeals from the trial court=s denial of her postconviction motion for DNA testing.  We affirm.

In November 2002, appellant pleaded guilty to aggravated sexual assault of a child and was sentenced to ten years= confinement in the Texas Department of Criminal Justice, Institutional Division.  Appellant thereafter filed a motion for postconviction DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure, urging DNA testing of all evidence secured in relation to the offense, which appellant contended was not previously subjected to DNA testing through no fault of her own.  See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon 2006).  The State filed a motion to deny DNA testing, claiming appellant failed to meet her burden to show that (1) evidence existed in a condition capable of DNA testing and (2) identity was an issue.  See id.  art. 64.03(a)(1)(A)(i), (a)(1)(B) (Vernon 2006).  In support of its contention that appellant failed to show the evidence existed, the State attached affidavits from the exhibits clerk at the Harris County District Clerk=s Office and records custodians at the Houston Police Department Crime Laboratory and Houston Police Department Property Room.  The exhibits clerk=s affidavit indicated the district clerk=s office possessed only a Aservice record@ from appellant=s case, and the records custodians= affidavits indicated the other entities retained no records from the case.  In support of its contention that appellant did not establish identity as an issue, the State attached a pre-sentence investigation report from appellant=s case indicating she never contested identity and admitted having a sexual relationship with the complainant.

The trial court subsequently held a hearing on the motion in appellant=s absence.  Appellant=s counsel objected in writing both to the Adeni[al]@ of appellant=s right to appear at the hearing as unconstitutional and to the State=s affidavits as containing hearsay.  After overruling the objections, the trial court denied appellant=s motion, and this appeal followed.

We review the trial court=s decision to deny DNA testing under a bifurcated standard of review.  See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004).  We defer to the 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.  Id. Employing this standard, we defer to a trial court=s finding as to whether the claimed DNA evidence exists and exists in a condition capable of testing.  Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

In issues one through four, appellant contends the trial court violated her federal constitutional rights to due process, and her state and federal constitutional rights to confrontation and cross-examination because she did not appear at the hearing and could not cross-examine the State=s affiants.  In issue five, appellant asserts that the trial court violated the Texas Rules of Evidence in admitting the affidavits and pre-sentence investigation report, which she claims contained inadmissible hearsay.  We and other courts have previously overruled these precise arguments under similar facts and, therefore, hold that appellant=s claims lack merit.  See Thompson v. State, 123 S.W.3d 781, 783B85 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see also Mearis v. State, 120 S.W.3d 20, 24B26 (Tex. App.CSan Antonio 2003, pet. ref=d); Cravin v. State, 95 S.W.3d 506, 508B11 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

We accordingly overrule appellant=s five issues and affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed April 3, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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