No. 05-06-00034-CR.
Opinion issued December 8, 2006. DO NOT PUBLISH, Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas. Trial Court Cause No. F77-04927-J
Before Justices MORRIS, WHITTINGTON, and RICHTER.
JOSEPH B. MORRIS, JUSTICE.
OPINION
In this appeal, appellant challenges the trial court's denial of his motion for post-conviction DNA testing. He first complains the trial court denied his due process rights by failing to require the State to explain its "lack of inquiry into other appropriate agencies" in its search for the biological evidence. Next, he complains that if no DNA evidence currently exists in the case, then the evidence was destroyed in violation of article 38.43 of the Texas Code of Criminal Procedure and his due process rights. We affirm the trial court's order. In 1977, appellant pleaded guilty and was convicted of aggravated rape. He filed a motion for post-conviction DNA testing in 2005, requesting DNA testing of biological evidence that had been collected from the complaining witness at Parkland Hospital after the rape. The State filed a written response asserting that the evidence no longer existed. With its response, the State submitted letters from the various agencies it had contacted in an effort to locate the previously collected biological evidence. Without a hearing, the trial court denied appellant's motion for post-conviction DNA testing, finding that no biological evidence existed in the case. In his first issue, appellant complains the trial court erred in finding that no biological evidence existed. He specifically argues the trial court denied his due process rights by failing to require the State to search more diligently for the biological evidence. When a convicted person files a motion for post-conviction DNA testing, the convicting court must require the attorney representing the State to deliver the evidence to the court or "explain in writing to the court why the state cannot deliver the evidence to the court." Tex. Code Crim. Proc. Ann. art. 64.02(2) (Vernon Supp. 2006). The court may order DNA testing only if it finds the evidence still exists and is in a condition making DNA testing possible. Id. art. 64.03(a)(1)(A)(i). Here, the State was trying to locate biological evidence that was over twenty-five years old. The State contacted the Southwestern Institute of Forensic Sciences, the Addison Police Department, and the Dallas County District Clerk's Office, but none of the agencies could locate the biological evidence. The district clerk's office gratuitously suggested, without indicating the basis for the suggestion, that the court reporter in the case may have disposed of the 1977 evidence or failed to turn it over to the clerk's office in 1989, when that office became the custodian of all existing felony evidence. Based on the record before us, we conclude the State met its burden of explaining to the convicting court why it could not deliver the evidence to the court. We further conclude the trial court did not err in finding, based on the State's response provided it, that the biological evidence no longer existed. We resolve appellant's first issue against him. In his second issue, appellant complains that "if it is true that no evidence currently exists in this case that can be tested for DNA evidence, then the evidence was destroyed in violation of Article 38.43 of the Texas Code of Criminal Procedure." Under article 38.43, an attorney representing the state, a clerk, or another officer in possession of evidence that was in the possession of the State during the prosecution of a criminal case may destroy the evidence, but "only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk or officer from the defendant, attorney of record, or court" by a specified deadline. Id. art. 38.43(d) (Vernon Supp. 2006). Appellant additionally claims the destruction of the biological evidence violated his constitutional right to due process. We have no jurisdiction to address this complaint because the relief appellant seeks is outside the scope of an appeal from the denial of a motion for post-conviction DNA testing. See Watson v. State, 96 S.W.3d 497, 500 (Tex.App.-Amarillo 2002, pet. ref'd). Chapter 64 of the code of criminal procedure authorizes the convicting court to order DNA testing, but nothing more. Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App. 2003). Appellant's claim that the State violated his due process rights and article 38.43 does not attack the trial court's finding that no biological evidence exists in the case. See Chavez v. State, 132 S.W.3d 509, 510 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Thus, his complaint is not valid as an appeal from the denial of a motion for DNA testing under article 64. See id. We resolve appellant's second issue against him. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.