Daniel Miguel Alvarez v. State ( 2009 )

 Affirmed and Memorandum Opinion filed September 17, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00792-CR

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DANIEL MIGUEL ALVAREZ, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 912,610

M E M O R A N D U M  O P I N I O N

Appellant, Daniel Miguel Alvarez, challenges the trial court=s denial of his post-conviction motion for DNA testing.  Finding no reversible error by the trial court, we affirm.

Background

On June 11, 2002, appellant was indicted for aggravated robbery.  On November 15, 2002, he pleaded Aguilty@ to the offense charged and was sentenced to eighteen years= imprisonment.  On September 8, 2006, appellant filed a pro se request for appointment of counsel to assist him in obtaining an order for DNA testing.  The court appointed counsel and appellant filed a motion for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. arts. 64.01B64.05 (Vernon 2006 & Supp. 2008).

In the motion and appellant=s supporting affidavit, he asked the trial court to order the State to conduct DNA testing of evidence containing biological material discovered during the investigation of the case.  Appellant claimed that the testing would prove that he had not committed the aggravated robbery.  In its response, the State argued that it was not in possession of any evidence containing biological material related to appellant=s case, and attached affidavits to that effect from the property and evidence records custodian for the Houston Police Department, the custodian for the crime lab, and the custodian for the latent print lab.

Prior to the hearing on the motion, appellant objected in writing to the proceedings and evidence on the grounds that he was denied his constitutional right to be present during the hearing.  He also argued that, if based solely on affidavits, the trial court=s decision would deprive him of the constitutional right to confront and cross-examine witnesses.^[1]

           The trial court denied appellant=s objections and motion on June 17, 2008.  The court also issued findings of fact.  In two issues, appellant claims he was deprived of his federal and state constitutional rights to be present and confront witnesses at the hearing on the motion.^[2]

Analysis

 This court has previously addressed the issues presented here and determined that a criminal defendant has no constitutional right to be present and confront and cross-examine witnesses at a hearing on a post-conviction DNA testing motion.  See Thompson v. State, 123 S.W.3d 781, 785 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). 

Article 64.01 of the Texas Code of Criminal Procedure allows a convicted person to submit a motion for DNA testing to the convicting court.  See Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2008).  The motion must be accompanied by a sworn affidavit Acontaining statements of fact in support of the motion.@  See id.  Upon receipt of the motion, the convicting court must provide the State=s attorney with a copy and require the State to either (1) deliver the evidence to the court, or (2) explain why it cannot do so.  See Tex. Code Crim. Proc. Ann. art. 64.02(a) (Vernon Supp. 2008).

The court may then order DNA testing upon certain findings set forth in article 64.03.  See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2008).  However, nothing in article 64.03 requires the trial court to conduct an actual hearing in order to determine whether appellant is entitled to DNA testing.  See Thompson, 123 S.W.3d at 784 (citing Rivera v. State, 89 S.W.3d 55, 58B59 (Tex. Crim. App. 2002)).

Unlike a criminal trial, a chapter 64 proceeding does not implicate an appellant=s federal or state confrontation clause rights because this type of proceeding does not necessarily involve any witnesses or accusations against the appellant.  See id.  Rather, the proceeding involves a motion made by the applicant followed by the State=s non-accusatory response required by the statute.  See Tex. Code Crim. Proc. Ann. arts. 64.01, 64.02; Thompson, 123 S.W.3d at 784. 

In appellant=s first issue, he argues that the trial court violated his federal constitutional right to due process and his state constitutional right to confrontation and cross-examination by conducting a hearing on his post-conviction DNA testing motion in his absence.  However, this type of proceeding, like a habeas-corpus proceeding, is an independent, collateral inquiry into the validity of the conviction.  See Thompson, 123 S.W.3d at 784 (citing Cravin v. State, 95 S.W.3d 506, 509B10 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d)).  Therefore, as in a post-conviction habeas-corpus proceeding, an applicant for a post-conviction DNA analysis does not enjoy a constitutional right to be present at a hearing. Id.  We overrule appellant=s first issue.

In his second issue, appellant argues that the trial court violated his federal constitutional due process right to confrontation and cross-examination by allowing testimony by affidavit.  Having held that appellant does not have a constitutional right to be present at the post-conviction DNA hearing, we hold, for the same reasons noted above, that appellant does not have the right to confront and cross-examine witnesses.  See id. at 785.  We overrule appellant=s second issue. 

Conclusion

Accordingly, the judgment of the trial court is affirmed.

/s/        Kent C. Sullivan

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           Appellant also objected to the State=s affidavits as inadmissible hearsay.  We do not address this issue because it has not been adequately briefed.  See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). 

^[2]           Although appellant=s brief presents three issues, we address them as two because we conclude it is unnecessary to address appellant=s arguments regarding his federal and state constitutional right to be present as separate issues.