No. 14-07-00255-CR
Opinion filed August 28, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 570380.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
Appellant Manuel Cuellar, III challenges the trial court's denial of his post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. In three issues, appellant contends 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. The issues raised by appellant are well settled; we therefore issue this memorandum opinion and affirm the trial court's order.
See Jones v. State, No. 14-06-00045-CR, 2007 WL 1215569 (Tex.App. Houston [14th Dist.] Apr. 26, 2007, no pet.) (not designated for publication); Mimms v.State, No. 14-02-01196-CR, 2003 WL 21543499 (Tex.App. Houston [14th Dist.] July 10, 2003, pet. ref'd) (not designated for publication); see also Coleman v. State, No. 14-02-01197-CR, 2003 WL 22724756 (Tex.App. Houston [14th Dist.] Nov. 20, 2003, pet. ref'd) (not designated for publication).
I. BACKGROUND
In 1990, appellant pleaded "guilty" to sexual assault and was sentenced to ten years confinement in the Texas Department of Criminal Justice, Institutional Division. In October 2003, appellant filed a post-conviction motion requesting DNA testing of any evidence containing biological material in the State's possession from his 1990 conviction. The State filed a response opposing appellant's motion on March 8, 2007, with supporting affidavits that established the Houston Police Department Crime Lab retained biological material related to appellant's 1990 offense. In this motion, the State asserted that appellant's identity was not an issue in his felony conviction because (a) the complainant identified appellant as the person who had sexually assaulted her; (b) appellant was stopped by police while driving the vehicle with the complainant in it; and (c) appellant "stated [to police] that the complainant was very drunk and cooperative and indicated that she wanted to have sex with [appellant]; however, [appellant] refused [but] claimed that the complainant willingly had sex with his co-defendant, Terrance." On March 8, 2007, the trial court denied appellant's request for DNA testing. The court found that appellant failed to meet the requirement of article 64.03(a)(1) of the Texas Code of Criminal Procedure, requiring that appellant demonstrate that identity was or is an issue in the instant case. Appellant timely filed this appeal. II. ISSUES PRESENTED
In his first and second issues, appellant asserts that his federal due process rights were violated because the trial court found he did not have a right to be present and confront and cross-examine witnesses at the final hearing on his post-conviction DNA motion. In his third issue, appellant contends his state constitutional right to confrontation and cross-examination was violated because the trial court found he did not have a right to be present at this hearing. We consider appellant's three issues together. III. ANALYSIS
After a defendant files a motion for post-conviction forensic DNA testing, the trial court may order DNA testing if, as is relevant here, the court finds that identity was or is an issue in the case. TEX. CODE. CRIM. PROC. ANN. art. 64.03(a)(1)(B) (Vernon Supp. 2007). The Court of Criminal Appeals has determined that nothing in Chapter 64 requires the trial court to conduct a hearing to determine whether a defendant is entitled to DNA testing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004); Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App. 2002). Thus, the trial court is not required to hold an evidentiary hearing to determine whether to order DNA testing, but may rely on the motion and the State's written response, as the trial court did here. See Thompson v. State, 123 S.W.3d 781, 784-85 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Mearis v. State, 120 S.W.3d 20, 23-24 (Tex.App.-San Antonio 2003, pet. ref'd); Cravin v. State, 95 S.W.3d 506, 509 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Further, even if appellant were absent at the hearing, neither the United States nor Texas Constitutions mandate an applicant's presence at a post-conviction DNA testing proceeding. Thompson, 123 S.W.3d at 784-85; Cravin, 95 S.W.3d at 510. Instead, this type of proceeding is similar to a habeas corpus proceeding because it is an independent, collateral inquiry into the validity of a conviction. Thompson, 123 S.W.3d at 784. Thus, like an applicant for post-conviction writ of habeas corpus, an applicant for a post-conviction DNA testing such as appellant enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing. Id. And for the same reasons that appellant has no right to be present at such a hearing, appellant does not have the right to cross-examine witnesses. Id. at 785. Accordingly, we overrule appellant's three issues and affirm the trial court's order.