Opinion
No. 04-17-00647-CR
03-07-2018
Juan SANCHEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 1990CR0627
Honorable Kevin M. O'Connell, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Juan Sanchez was convicted of murder, and we affirmed his conviction on direct appeal in 1991. On June 19, 2017, Sanchez filed a motion for forensic DNA testing. Sanchez contends the trial court erred by: (1) entering its order denying his motion "sua sponte" before the State filed a response; (2) applying an erroneous standard in ruling on the motion; and (3) denying his request for the appointment of counsel. We affirm the trial court's order.
See Sanchez v. State, No. 04-91-00019-CR, slip op. at 1, 3 (Tex. App.—San Antonio Dec. 18, 1991, no pet.).
"SUA SPONTE" ORDER
In his first issue, Sanchez asserts the trial court erred in entering its order "sua sponte" before the State filed a response to his motion. When a motion is filed requesting DNA testing, article 64.02(a) of the Texas Code of Criminal Procedure requires the trial court to: (1) provide the attorney representing the state with a copy of the motion; and (2) require the attorney representing the state to either deliver the evidence the motion seeks to have tested to the court or explain why the evidence cannot be delivered no later than the 60th day after the motion is served on the state. TEX. CODE CRIM. PROC. ANN. art. 64.02(a) (West Supp. 2017). Article 64.02(b), however, allows the trial court to rule on the motion after the 60-day response period has expired "regardless of whether the attorney representing the state submitted a response." Id. at art. 64.02(b); see also Booker v. State, No. 05-11-01141-CR, 2012 WL 6635227, at *7 (Tex. App.—Dallas Dec. 21, 2012, pet. ref'd) (not designated for publication) (holding trial court did not err in ruling on motion requesting DNA testing without a response from the state); Sepeda v. State, 301 S.W.3d 372, 375 (Tex. App.—Amarillo 2009, pet. ref'd) (noting "the statute allows the trial court to proceed after the response period expires and regardless of whether the State filed a response"). Here, Sanchez filed his motion requesting DNA testing on June 19, 2017, and the trial court signed the order denying the request on September 14, 2017. Because the statute permits the trial court to rule on a motion requesting DNA testing after 60 days in the absence of a response by the State, Sanchez's first issue is overruled.
ERRONEOUS STANDARD
In his second issue, Sanchez asserts the trial court applied an erroneous standard in denying his motion. The trial court's order states the motion was denied based on the trial court's finding that "there was sufficient evidence and testimony that established Defendant's identity, such that identity was not and is not an issue in this case."
Article 64.03(a) of the Code gives the trial court the discretion to order DNA testing only if two requirements are met. TEX. CODE CRIM. PROC. ANN. art. 64.03(a). First, the trial court must make the following three findings: (1) the evidence still exists, is in a condition making DNA testing possible, and has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; (2) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (3) identity was or is an issue in the case. Id. at art. 64.03(a)(1); see also Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (noting three findings trial court must make before it may order DNA testing). Second, the convicted person must establish by a preponderance of the evidence that: (1) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and (2) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2); see also Whitaker, 160 S.W.3d at 8 (noting convicted person bears burden of showing "a reasonable probability exists that exculpatory test results would prove his innocence").
In the instant case, the trial court did not order DNA testing because it found identity was or is not an issue in the case. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(C). Sanchez never asserted in either his motion or his affidavit that identity was or is an issue in the case; therefore, Sanchez failed to provide any facts that would support the finding the trial court was required to make before ordering DNA testing. See Ford v. State, No. 08-14-00211-CR, 2017 WL 5826003, at *4 (Tex. App.—El Paso Nov. 29, 2017, no pet.) (not designated for publication) ("Because Appellant made only conclusory statements and failed to provide facts in support of his motion, he did not show that identity either was or is an issue in the case."); TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (noting motion must be accompanied by affidavit containing statements of fact in support of the motion). Although Sanchez contends the trial court erroneously applied a sufficiency of the evidence standard in evaluating his motion, Sanchez does not even contend in his brief that identity was or is an issue. Instead, Sanchez argues in his brief as he argued in his motion that DNA testing of a pocketknife his brother-in-law found while cleaning the home where the victim was murdered would prove his innocence because the indictment alleged he caused the victim's death by stabbing her with an object unknown to the grand jury. Sanchez contends that if the pocketknife is determined to be the murder weapon, the State could not prove the victim was stabbed with an unknown object. This court addressed this same contention on direct appeal concluding, "Although a pocketknife, its blade of unknown size, was found in the same room, at trial there was no evidence to show it was actually the instrument used or that the grand jury could ascertain it was used ." See Sanchez v. State, No. 04-91-00019-CR, slip op. at 8 (emphasis added). Even if DNA testing established the pocketknife was the murder weapon, Sanchez did not provide the trial court with any facts to show that such a finding would cause identity to be an issue. In addition, DNA test results showing the pocketknife was the murder weapon would not affect this court's prior holding that the grand jury used due diligence to ascertain the type of weapon used but could not determine the precise manner and means used to cause the victim's death. See id. at 8-9.
Sanchez cites Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007), to support his argument. Blacklock is distinguishable because it was a sexual assault case involving biological evidence deposited in and on the victim by the attacker, and the motion sought DNA testing of semen from the victim's vaginal smears and semen left on the victim's clothing. 235 S.W.3d at 232.
Sanchez's second issue is overruled.
APPOINTMENT OF COUNSEL
In his final issue, Sanchez contends the trial court erred in denying his request for the appointment of counsel. The trial court's order states the appointment of counsel was denied because the trial court did not find there were reasonable grounds for the motion requesting DNA testing to be filed.
Under article 64.01(c) of the Code, a convicted person who files a motion for DNA testing is only entitled to appointed counsel if the trial court finds reasonable grounds for the motion to be filed. TEX. CODE CRIM. PROC. ANN. art. 64.01(c). In this case, Sanchez filed his motion requesting the appointment of counsel on the same day he filed his motion requesting DNA testing. As previously noted, Sanchez never asserted in either his motion or his affidavit that identity was or is an issue in the case. Because the motion failed to meet a precondition for obtaining DNA testing, the trial court did not err in finding there were no reasonable grounds for the motion to be filed or in denying Sanchez's request for an attorney to be appointed. See Lewis v. State, 191 S.W.3d 225, 229 (Tex. App.—San Antonio 2005, pet. ref'd) (holding defendant not entitled to appointed counsel where motion failed to meet two preconditions to obtaining DNA testing); see also Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) ("Courts have found that reasonable grounds for testing are not present if ... identity was not or is not an issue.").
Sanchez's third issue is overruled.
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH