Jack Marion Smith v. State ( 2004 )

NUMBER 13-02-573-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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JACK MARION SMITH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 105th District Court of Nueces County, Texas.

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Baird ⁽¹⁾ Opinion by Justice Baird

   Petitioner was convicted of the offense of murder and sentenced to ninety-nine years confinement in the Texas Department of Criminal Justice-Institutional Division. We affirmed the judgment of the trial court. Smith v. State, 842 S.W.2d 367 (Tex. App.-Corpus Christi 1992, pet. ref'd). Petitioner subsequently filed a motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. § 64.03(a) (Vernon Supp. 2004). After hearing the argument of counsel, the trial judge denied the motion, and petitioner appealed. We affirm.

I. Statutory Requirements and Standard of Appellate Review.

To obtain DNA testing under chapter 64, several requirements must be met. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); ); Lopez v. State, 114 S.W.3d 711, 715-16 (Tex. App.-Corpus Christi 2003, no pet.); see Tex. Code Crim. Proc. Ann. § 64.03(a) (Vernon Supp. 2004). The requirements relevant to this case are: (1) "the evidence . . . still exists and is in a condition making DNA testing possible;" and (2) "the convicted person establishes by a preponderance of the evidence that . . . a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Tex. Code Crim. Proc. Ann. § 64.03(a). The petitioner must provide facts in support of his motion. Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). To establish the "reasonable probability" requirement, the movant must show "a reasonable probability exists that exculpatory DNA tests would prove their innocence." Rivera, 89 S.W.3d at 59 (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002)). A trial judge is not required to grant a convicted person's request for testing absent this particular showing. Dinkins, 84 S.W.3d at 643.

When reviewing the trial judge's decision, appellate courts employ the standard of review articulated in Guzman v. State, 955 S.W.2d 85 (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. Rivera, 89 S.W.3d at 59; Lopez, 114 S.W.3d at 716. Under this standard, whether the claimed DNA evidence exists and is in a condition to be tested is reviewed with deference to the trial court's findings. Rivera, 89 S.W.3d at 59. Although there may be subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application of law-to-fact question that does not turn on credibility and demeanor and is reviewed de novo. Id.

II. Contentions.

Petitioner raises two points of error contending the trial judge erred in denying the motion for DNA testing. We will address these points in reverse order. The second point of error contends the trial judge erred in finding that petitioner failed to prove, by a preponderance of the evidence, that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

We reject this point for two reasons. First, petitioner offered no evidence at the hearing on his motion, but instead offered only the argument of counsel. Therefore, petitioner did not provide facts in support of his motion. Dinkins, 84 S.W.3d at 642. Second, even if we accepted the argument of counsel as evidence, that argument did not establish a reasonable probability that petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Defense counsel argued "the particular facts of the case may raise some doubt about whether the Defendant is, in fact, guilty of the offense if the DNA does come back as not matching the Defendant" (emphasis added). However, the mere possibility that the DNA testing could raise some doubt fails to establish a reasonable probability. Rivera, 89 S.W.3d at 59 (reasonable probability showing has not been made if exculpatory test results would "merely muddy the waters"). More importantly, there is no showing that petitioner would not have been prosecuted or convicted when we consider the inculpatory evidence from petitioner's trial unrelated to and independent from the four exhibits which are the subject of this appeal. See Smith, 842 S.W.2d at 368. Specifically, the State offered a portion of appellant's confession wherein he admitted burglarizing the complainant's home and assaulting her. See id. Additionally, the State offered evidence of appellant's fingerprints on the window frame, and evidence from appellant's shorts consistent with breaking and entering the complainant's residence through a broken window. Id. Consequently, we hold the trial judge did not err in finding the evidence was insufficient to prove by a preponderance that petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). The second point of error is overruled.

The first point of error deals with the requirement of article 64.02 that the State, upon receiving the petitioner's motion for forensic DNA testing deliver the evidence to the court, along with a description of the condition of the evidence. Tex. Code Crim. Proc. Ann. art. 64.02(2)(A). In the instant case, the State submitted State's exhibits 34, 46, 48, and 49 which were items admitted during the 1991 trial of this case. The trial judge asked the State if these items were susceptible to DNA testing; the State did not know because the State had not asked the DPS lab that question. The prosecutor stated that these four exhibits were the only exhibits of the "more than 49 exhibits admitted into trial" that could be used for DNA testing. At the conclusion of the hearing, the trial judge found "that it has not been established that the remaining items of evidence are in a condition making DNA testing possible."

Petitioner argues the trial judge erred in not requiring the State to provide a description of the condition of the evidence. Our resolution of the second point of error renders this point of error moot. Assuming arguendo that the trial judge erred, the trial judge nevertheless correctly found the evidence, regardless of its condition, would not render exculpatory evidence sufficient to establish petitioner would not have been prosecuted or convicted of the instant offense. In other words, even if the evidence was in a condition to be genetically tested, that testing would not have produced evidence which would have prevented appellant's prosecution and conviction. Consequently, we overrule the second point.

The judgment of the trial court is affirmed.

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CHARLES BAIRD,

Justice

Do not Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 18th day of March, 2004.

1. Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon Supp. 2004).