COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

ROBERT A. A L L EN, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-07-00301- CR

Appea l from the 243rd District Court of El Paso County , Texas (TC# 33813)

O P I N I O N This is a pro se a

ppeal f rom the trial cour

t’s denial of his motion for post-convic tion DNA testing . We find no course other than to a ffirm. Appellant wa s convicted of ag g ravated kidnapping , and sente nced to life in prison on J anuar y 4, 1979. In Dec ember

2005, throug h his appointed attorney , Appellant filed a motion for post-conviction DNA te sting pursua nt to Article 64 of the T exas Code of Criminal Procedure
. Appellant soug ht testing of biolog ical mater ial collecte d duringthe victim’s medical e x amination following the alleg ed incident. On F ebrua ry 23, 2006, the trial cour

t held an evide ntiary

hear ing duringwhich the State pr esente d the followingwitnesses: Mike Martinez, the custodian of evidenc e in the El Paso District Clerk’s Of fice ; Ann Marie F alknor, a supervisingfore nsic scientist with the Texas Depar tment of Public Safety

crime la boratory ; and B onnie Prieto, the administrator for

rec ords manag ement for

El Paso County . Serg eant Eddie Smit h, the Evidenc e Custodian for the El Paso Police Depa rtment testified by

aff idavit.Mr. Martinez testified that he se arc hed the District Clerk’ s evidenc e off ice in the El Paso County Courthouse, the District Clerk’s e x terna l storag e fa cility , his office ’s ar chives depar tment, and the El Paso County Sheriff’ s Depa

rtment for e vidence and re cords r elated to Appellant’s c riminal trial but was unable to locate a ny thing. Ms. F alknor testified that she
sear ched he r off

ice’ s rec ords and the e vidence storag e vaults, but was una ble to locate a

ny evidenc e re lated to Appellant’ s case . Ms. Prieto, testified that her of fice was re sponsible for storag e and r etention of a ll recor ds g ener ated by the County , including those g ener ated by the district attorney ’s offic e and the county cler k. The County

office does not handle the storag e and maintenanc e of biolog ical evide nce. A ccor ding to Ms. Prieto, the doc umentary rec ord in Appellant’s c ase w as destroyed ac cording to the County ’s re tention schedule in De cembe r of 1999. Sarg ent Smith’s affidavit states that he se arc hed the El Paso Police De partment’s r ecor ds for a ny evidenc e, includingbiologica l material re lated to Appellant’ s criminal trial. The se rg eant testified that he did not find any evidenc e in the depa

rtment’s possession. Appellant did not prese nt any

evidenc e at the he aring . At the close of evidenc e, the tria l court dete rmined there
was no e vidence available for DNA testing , and denie d Appellant’s motion. Appellant chose to proce ed pro se on appea l. Appellant’s br ief ra ises three issues challeng ing the destruction of the trial rec ord and evidenc e re lated to his criminal conviction. Appe llant argues the de struction of evide nce ha s violated his due proc ess rig hts, his right to a fa ir trial, and his ability to present a

n adequate brief on appea l. Appellant also ar g ues that due to the de struction of the e vidence , he is entitled to a new tria l. Be cause we do not have jurisdiction to consider these a rguments, we must overr

ule all three issues.
-2-J urisdiction must be vested in a cour t by constitution or statute. State v. Robe rts , 940 S.W .2d 655, 657 (Tex.Crim.App. 1996). Article V, se ction 6 of the Te x as Constitut ion provides that courts of a

ppeals shall, “ha

ve orig inal or appe llate jurisdiction, under such r estrictions and regulations as may

be pre scribed by

law.” T E X .C O N S T . art. V, § 6. When the issue is the prese rvation of e vidence containingbiologica l material, the Code of Criminal Procedure does not provide for

any relief by the lower court, nor doe s it authorize a regular a ppeal. T E X .C O D E C R I M . P R O C .AN N . art. 38.39 (V ernon 2005) . In a non-c apital ca se, an a ppeal f rom the denia l of a motion for post-conviction DNA te sting, is limited to review of the trial court’ s findings. See T E X .C O D E C R I M .P R O C .AN N . art. 64 (V ernon Supp. 2009); W atson v. State , 96 S.W .3d 497, 500 (Tex.App.--Ama

rillo 2002, pet. ref

’d). Appellant’s c omplaints reg ardingthe State’s destruc tion of biologica l evidence , are not valid in an appe al from the de nial of a motion for D NA testing
. Chavez v. State , 132 S.W .3d 509, 510 (Tex.App.--Houston [1st Dist.] 2004, no pet.). Appe llant’s issues are eff ectively reque sts for habe as re lief, over which an a

ppellate c ourt has no jurisdiction. SeeT E X .G O V T . C O D E AN N . § 22.221 (Ve rnon 2004); W atson , 96 S.W .3d at 500. Acc ording ly , we ove rrule I ssues One, Tw o and Thre e. In the intere sts of justice, we will consider the trial cour

t’s deter mination that testable evidenc e does not e x ist in t his case. When r eviewinga trial c ourt’s dec ision reg ardinga postconviction motion for DNA, w e ar e re quired to af ford ne ar total de fer ence to the court’s deter mination of historical fac ts, and application-of-law -to-fa ct issues which turn on e valuation of cr edibility

and deme anor. See R ivera v . State , 89 S.W .3d 55, 59 (Tex.Crim.App. 2002). Only questions of law a

re subjec t to de novo revie w. Id
. -3-Under Article 64.01( b), a de fenda nt may reque st the convictingcourt to per mit forensic DNA testingof evide nce c ontaining biolog ical mater ial that was in the State’s posse ssion during trial, if that evidenc e: (1) w as not previously subject to DNA te sting be cause DNA testingwas not available; ( 2) wa s not previously subjected to DN A testing beca use DNAtesting w as available but not technolog ically capa ble of providingprobative r esults; (3) was not pre viously subjected to DN A testing , throug h no fault of the c onvicted per son, for re asons that ar e of a nature such that the intere sts of justice require DNA testing ; or (4) w as pre viously subjected to DNA testing , but can be subjected to testingwith newer testing te chniques that provide a
rea sonable likelihood of re sults that are more acc urate and probative than the re sults of the previous test. SeeT E X .C O D E C R I M .P R O C .AN N . art. 64.01 (V ernon Supp. 2009). The defe ndant must also demonstrate by a pre pondera

nce of the evidenc e that: (1) he would not have be en convicted if

exculpatory

results had be en obtained thr oug h DNA testing ; and (2) the reque st for the proposed D NA testingis not made to unrea sonably delay the execution of sentenc e or administration of justice. See T E X .C O D E C R I M .P R O C .AN N . art. 64.03(a )(2) (Ve rnon Supp. 2009); Hooks v . State , 203 S.W .3d 861, 863 (Tex.App.--Te x arka na 2006, pet. r ef’ d). A trial c ourt ca n only order fore nsic DNA te sting if the statutory require ments are met. Bell v. State , 90 S.W .3d 301, 306 (Tex.Crim.App. 2002). Given the de fer ence aff

orded to the tria l court’s de termination, and the qua ntum of evidenc e introduce d establishing the non-existence of biolog ical mater ial in this case, the only conclusion left f

or us is that the court did not er r in deny ing A ppellant’s motion for DNAtesting. Havingoverr

uled all of Appe llants issues and havingconclude d the trial cour t’s deter mination was not in error , we a ffirm the or der de nying A ppellant’s motion for post-
-4-conviction DNA te sting.

Fe bruar y 26, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., Rivera, J., and Garc ia, J udg e Gar cia, Judge (Sitti ng by

Assignme nt) (Do Not Publish)

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