No. 05-03-00621-CR
Opinion filed November 18, 2003 DO NOT PUBLISH, Tex.R.App.P. 47.2(b)
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F92-02379-U AFFIRMED
Before Justices MORRIS, O'NEILL, and LANG.
Opinion By Justice, DOUGLAS S. LANG.
Milton Lee Tarver was charged with aggravated sexual assault. Tarver entered a plea of not guilty and proceeded to trial by jury. Tarver was found guilty and sentenced to life confinement. This Court affirmed Tarver's conviction. See Tarver v. State, No. 05-98-01964-CR (Tex.App.-Dallas 2000, pet. ref'd, untimely filed) (mem. op.) (not designated for publication). Tarver filed a motion for post-conviction forensic DNA testing. See Tex. Code Crim. Proc. arts. 64.01- 64.05 (Vernon Supp. 2004). The convicting court denied Tarver's motion. In three issues, Tarver challenges the denial of his motion for post-conviction DNA testing.
Statement of Facts and Procedural Background
Tarver was convicted of assaulting Beulah Cook by penetrating her sexual organ with his tongue and using and exhibiting a knife. After his arrest, Tarver signed a voluntary, written statement in which he confessed to robbing and sexually assaulting Cook. The reporter's record from the original appeal shows that Tarver contradicted his written confession at trial. The record also shows that Cook was unpacking boxes in a duplex she shared with her boyfriend when she was confronted by a masked man with a butcher knife who called her by name, said her boyfriend owed him money, took Cook's money and ATM card, performed oral sex on her, ate a bowl of cereal, and then left. Cook could not identify her attacker in court. Tarver's photograph was taken at the ATM machine when he attempted to use the ATM card. Tarver's fingerprints were found inside Cook's apartment. Cook did not undergo a physical examination. The police officer in charge of collecting evidence at the scene, Detective Patrick Genovese, testified that no DNA evidence was collected during the investigation. Tarver filed a pro se motion for DNA testing, in which he referred to DNA testing of "the rape kit." Subsequently, Tarver's court-appointed counsel's motion for DNA testing requested testing of "biological material." In response, the State urged that Tarver's motion should be denied because there was no evidence to test for possible DNA. Specifically, the response referred to Genovese's testimony that no DNA evidence was collected, no hair or bodily fluids were collected, and no rape exam was performed. The response also contended that such evidence would not prove Tarver's innocence, in any case, and identity was not an issue in the case. The trial court's order denying the motion for DNA testing found that no biological evidence was collected in relation to the offense that may be subjected to DNA testing. The order also included findings that Tarver's motion failed to establish by a preponderance of the evidence that exculpatory DNA tests would prove his innocence and failed to prove that identity was an issue in his case. In his first point of error, Tarver contends the trial court erred in finding there was no biological evidence to test without first requiring the State to exercise diligence in searching. Applicable Law and Standard of Review
Article 64.01 of the code of criminal procedure provides that a convicted person may request forensic DNA testing only of evidence containing biological material "that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the [S]tate during the trial of the offense." Id. art. 64.01(b). The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. Id. art. 64.01(a). Upon receipt of the motion, the convicting court shall require the attorney representing the State to deliver the evidence to the court, along with a description of the condition of the evidence, or explain in writing to the court why the State cannot deliver the evidence to the court. Id. art. 64.02(2)(A)-(B). A convicting court may order forensic DNA testing under chapter 64 only if the court makes certain findings, which include that the evidence still exists and is in a condition making DNA testing possible. Id. art. 64.03(a)(1)(A)(i). An appeal of a finding under article 64.03 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals. Id. art. 64.05; Kutzner v. State, 75 S.W.3d 427, 432 (Tex.Crim.App. 2002). In reviewing the trial court's decision under chapter 64, we employ the familiar bifurcated standard of review articulated in Guzman v. State. 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. Under this standard, we review with deference to the trial court's findings whether the claimed DNA evidence exists and is in a condition to be tested. Id. Application of Law to Facts
Tarver argues that the State reviewed its own file in its response to his motion, but should have been required to ask the law enforcement agency that investigated the offense, or "those who do have such knowledge," if any biological evidence exists. First, we note that Tarver's motion for testing stated: "The defendant does not have access to all of the district attorney's files or the police files so a request to review all of the files to determine if biological evidence was collected as a result of the offense but unknown to the defendant at the time of trial is required." The State's response says, "The State has reviewed the DA file and the Dallas Police Department offense report from this case to determine what evidence was collected in relation to this offense. The State found no other evidence listed in the DA file or offense report apart from that discussed at trial." To the extent Tarver is complaining of the State's failure to inquire of any agency in addition to the district attorney's and police department files, he has failed to preserve that complaint for our review by not specifying the additional files to be reviewed. See Shannon v. State, 116 S.W.3d 52, 54-55 (Tex.Crim.App. 2003) (by failing to ask district court "to make inquiry of the State relating to the existence of such materials for testing, as well as an accounting of such in the possession of or within the knowledge of the State," appellant waived right to complain on appeal that district court erred in failing to make such an inquiry); Tex.R.App.P. 33.1(a). Second, Tarver contends that because the State's attorney did not assert that he had personal knowledge that no biological evidence was collected, he should have been required to ask "the law enforcement agency that investigated the offense" if any biological evidence exists. However, the State referred to the trial testimony of the police detective in charge of collecting physical evidence at the scene, who testified that no biological evidence exists. Tarver offers no evidence to the contrary. We conclude that the trial court could have reasonably concluded that no physical evidence pertaining to the offense presently exists. See Shannon, 116 S.W.3d at 55; Cravin v. State, 95 S.W.3d 506, 511 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (concluding State's written response, explaining that neither district clerk nor sheriff's department had record of evidence, sufficient for court to find no evidence exists). We decide Tarver's first issue adversely to him. In his second issue, Tarver contends the trial court erred by requiring him to prove his innocence. In his third issue, Tarver contends the trial court erred in finding that identity was not an issue. Because the trial court found no physical evidence exists, which we have concluded is reasonably supported by the record, we need not decide Tarver's second and third issues since they are moot. Conclusion
We affirm the trial court's order denying Tarver's motion for post-conviction DNA testing.