Opinion
No. 05-04-00982-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F94-02725-QU. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD
OPINION
Appellant Alberto Juan Canales appeals the trial court's denial of his motion for post-verdict DNA testing. Canales argues the trial court erroneously (1) failed to require the State to deliver the evidence at issue to the trial court, (2) found that Canales did not show that identity was an issue, and (3) found that Canales failed to show that favorable DNA test results would have precluded his conviction or prosecution. For the reasons that follow, we affirm the trial court's order.
Background
Canales was charged with murdering his roommate, Danny Joe Jordan, in the course of committing robbery. Jordan called 911 and told the operator that he had been stabbed by his roommate. Police arrived within minutes of the telephone call and found Jordan near death. Jordan told the officers that he knew he was going to die and that his roommate, Canales, had stabbed him. Jordan died in the ambulance on the way to the hospital. Both paramedics testified that Jordan was alert and coherent when he stated that appellant was the person who stabbed him. Additionally, a neighbor placed appellant at the murder scene within seven minutes of Jordan's 911 telephone call and appellant was in possession of Jordan's truck, wallet, checkbook, and credit cards when arrested. The jury convicted Canales of capital murder, and he was sentenced to life in prison. In September 2001, Canales filed his motion for post-conviction DNA testing, and the State filed its response. The trial court signed an order denying Canales's motion on two grounds: Canales failed to show that identity was at issue during trial, and he failed to show that favorable DNA test results would have precluded his conviction or prosecution. This appeal followed.Standard of Review
We apply a bifurcated standard of review in this post-conviction DNA appeal. 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)). 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. Id.; see also Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.).Appellate Jurisdiction Under Article 64.02
Canales's first issue charges the trial court should have required the State to deliver to the court the evidence on which he sought testing. The law mandates that, on receipt of a motion for post-verdict DNA testing,the convicting court shall . . . require the Attorney representing the state to:
(A) deliver the evidence to the court, along with a description of the condition of the evidence; or
(B) explain in writing why the state cannot deliver the evidence to the court.Tex. Code Crim. Pro. art. 64.02(2) (Vernon Supp. 2004-05). In this instance, the trial court did order the State either to deliver to the court the evidence sought by Canales's motion or to explain in writing why the evidence could not be delivered. The State, in turn, located the evidence sought by Canales, and its response to the motion identified the evidence that actually contained biological material that could be subject to DNA testing. The State's response argued against allowing DNA testing on the two grounds the trial court ultimately adopted. The response also stated the State would — absent an order from the court — allow the evidence to remain where it had been held in order to "maintain the proper chain of custody and the integrity of the evidence" until the trial court ruled on the motion. The record contains no order requiring the State to take possession of and deliver the evidence to the court. Canales argues the trial court could not fully comply with its obligations under article 64.03 without taking possession of the evidence. This first issue raises a threshold concern. The law in effect when Canales filed his motion in September 2001, allowed an appeal of a finding made under either article 64.03 or article 64.04 of the code of criminal procedure. But the law made no provision for an appeal of conduct related to article 64.02. See Act of April 3, 2001, 77th Leg., R.S., ch. 3, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex. Code Crim. Pro. art 64.05). Accordingly, we have no jurisdiction to consider Canales's first issue.
Reasonable Probability of Precluding Prosecution or Conviction
Canales's third issue challenges the trial court's finding that Canales failed to establish that favorable DNA results would have precluded his conviction or prosecution. A convicting court may order post-conviction forensic DNA testing only if:(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testingAct of April 3, 2001, 77th Leg., R.S., ch. 3, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Pro. art 64.03). In Kutzner v. State, 75 S.W.3d 427, 437 (Tex.Crim.App. 2002), the court of criminal appeals decided the phrasing of this requirement was ambiguous. Thus, the court looked to the statute's legislative history to discern the intent of the legislature and concluded the legislature intended the language of former article 64.03(a)(2)(A) to mean "a reasonable probability exists that exculpatory DNA tests will prove a convicted person's innocence." Id. at 438. Although this interpretation does not require the convicted person to prove his innocence before the court could order testing, it does require the convicted person "to show a reasonable probability exists that exculpatory DNA tests would prove [his] innocence." Id. at 438-39. Canales relies upon the lack of physical evidence "conclusively showing" his guilt and upon his own explanations for his presence at the scene before and after the murder, his possession of the Jordan's truck, and his pawning of Jordan's property. Likewise, Canales relies on a statement by the paramedic that Jordan was in shock when he identified Canales as his attacker. Our concern here is not whether Canales can explain away the State's evidence. Instead, we focus on what DNA test results could establish in this case. We conclude the most "favorable" result Canales could hope for would establish that some other person was present at the scene. Such a result, however, would not establish that Canales was not there with that person. Thus, we conclude the trial court did not abuse its discretion in concluding that no reasonable probability exists that the requested DNA tests would prove Canales's innocence. See, e.g., Eubanks, 113 S.W.3d at 566 ("The prospect of casting doubt is clearly not enough to meet the burden of proof to show a reasonable probability of one's innocence."). We decide Canales's third issue against him.