NO. 07-03-0111-CR 07-03-0112-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D DECEMBER 16, 2004

______________________________ COURTNEY WEEDEN, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 181ST DISTRICT COURT OF RA NDALL COUNTY; NO. 7047- B, 7048-B ; HONORAB LE JOHN B . BOARD, JUDGE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
MEMORAND UM OPINION CourtneyWeeden brings compani on appea ls from or ders deny ing his requests pursuantto Chapter 64 of the Code of Criminal Procedure for DNA testing of evidence from his 1991 prosecution. We will dismiss the appeals.1 Unless other w ise noted, subsequent statutory references are to the version of Chapter 64 of the Code of Criminal Procedure in effect at the time of appell ant’s motions. -2- Appellant

was convicte d in January 19 91 of aggrava ted sexu al ass ault of his two daughters, each under the age of 14. The jury assessed punishment in each case at 99 years confine ment and a fi ne of $10,000. We affirmed both convictions on direct appeal
over assertions of error arising from specific pros ecutio n argumen ts. Weeden v . State , Nos. 07-9 1-032-CR , 07-91-0 33-CR (Tex.App.–A marillo August 7 , 1992, p et. denie d).
In 2001 the Legi slature a dded Cha pter 64 to the Codeof Crimi nal Procedure. See Actof April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Te x. Gen. Laws 2 (current version codified at Tex. Code Cri m. Proc. An n. art. 64.01 -.0 5 (Vernon Supp. 20 04)). 1 It authorizes
a convicte d person to move for forensic DNA testing of evidence in specific circumstances. The convicting court may o rde r forensic DNA testing only if it finds there ex ists evidence thatis possible to test, the evidence has been subjectto an adequate chain of custody, and identity was or i s an issu e in the case. See art. 64.0 3(a) (amended 2003). Under the version of article 64.03(a)(2)(A) in effect at the time of appellant’s motionshe also had to showby a preponderance of the evidence a reasonable probability he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA test ing. If testing is performed the trial court must hold a hearing and make a finding as to whether the results are favorable to t he mo vant. Art. 64.04. The statute does not authorize any further ac

tion by t he trial court.
In January 2002 appellantrequested appointment of counsel to represent him in presenting motions to obtain orders directing testing under Chapter 64. See art. 64.0 1(c).2 We note Allen’s affidavit states that at his request the Randall County Sh eriff’s

Departmentsearched for evid ence rel ated to “case numbe r 20-9006 04.” The tria l court cause numbers giving rise to appellant’s convictions were 7047-B and 7048-B. The af fi davit does not exp ressly state whether 20-900604 is a Department case number arising from the same events.

3 Our opinion on direct a ppeal al so recite d appell ant’s con fession i n open co urt. Weeden , slip op. at 3. -3- The court appointed counsel, who filed a motion in each case. Those motions alleged the State was in possession of biological material collected from appellant and his dau ghters in the course of its investigation of the offenses, that DNA from the samples had not been compar ed, and that

t he identity of the person who assaulted his daughters is an issue in the cases

. The trial court sig ned an o rder dire cting theState to deliver to the court the evidence
or explain why

it could not deliver the evidence. The State filed a response challengi ng two of the elem ents appe llant wa s obliga ted to establi sh under Chapter 6 4. It argu ed first, that
no biological material existed on wh ich to conduct testing, and second, that identity was not and is not an issue i n the cas e. The S tate attached the affidavit of investigator Craig Allen reciting his efforts to locate a ny exis ting bio logical samples which co uld be s ubject to testing, 2 and that no such material existed.
In support of its position that identity was and is not an issue in the case, the State pointed out that

appellant confessed and admitted his guilt during the punishment phase of his trial. It attached excerpts of the reporter’s record where app ell ant admit ted to molesting both daughters. 34 Appellant does not chal lenge th is rulin g. See Crav in v. Sta te , 95 S.W.3d 506, 509 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (holding that no evidentiary hearing is required in a pro ceeding under Ch apter 64)

. -4- The trial court denied appellant’s request for an evi dentiary hearing, 4 but hear d argumenton the mo tions for DNA test ing. Atthat hearing appellant presented no challeng e to the State’s evide nce thatany biological material had been d estroyed, but argued destruction of evidence collected during the inves t igation denied him his rights to equal protection and due process under the fed eral cons titution. The trial court denied the motions based on its dete rmination that no b iological materi al exis ted. See art. 64.0 3(a)(1). Atthe hearing the court expressed the opinion that on afinding no biol ogical m aterial exists “the court’s inquiry stop s there.” The court nevertheless went on to address appell ant’s constitutional arguments. It denied any relief on constitutional grounds, citing appellant’s judicial confession and the fact that Chapter 64 was enacted well after his conviction. The court issued findings of fact and conclusions of law to the effect that the State conclusively established no biological material existed on which to conduct forensic DNA testing, and appellant

was not entitled to a n evidentiar y hearing on that issue. Appellant timely perfected appeal from the o rder in e ach case

. Appellant

presents two points of error on appeal. He first argues th e State’s

failure to make any effort to preserve biologica l ma terial ga thered as evidence during its investigation denied appellant his right to test his conviction under Chapter 64 of the Code of Criminal Procedure, thereby denying him equal protection and due process. Appe llant’s second pointasserts the State’s failure to give him any notice of its intention to dispose of the biological material has denied him due process of law. Appellant’s supp o rting5 Concerning the convicted person’s entitlement to testing.
6 Concerni ng wheth er the res ults of te sting arefavorabl e to the m ovant.
7 The Legisla ture has s ince ame nded arti cle 64.0 5. See Act of May 9, 2003, 78 th Leg., R.S., ch. 13, § 5, 2003 Tex.Gen.Laws 16, 17. The current version states: An appeal under this chapter is to a court

of appeals in the same manner as an appeal of any oth er crimi nal matte r, except that if the convicted person was co nvicted in a capital case and was se ntenced to death, the appeal is a direct appeal to the court of criminal appeals. Tex.Code Crim.Proc. Ann. art. 64.05 (Vernon Pamph. 2004). The amendments to Chap ter -5- argum ent s do not contend the trial court erred in applying Chapter 64 to the facts of his
cases. His arguments address only the denial of his rights to due process and equal protectio n of the l aw under the fede ral const itution.
In support, appellant points to the requirement of article 38.39 requiring preservation of biologica l materia l. Tex.Code Crim.Proc. Ann. art. 38.39 (Vernon pamph 2004). While acknowledging the inapplicability of that statute here becauseit was not adopted until 2001, appellant

seeks to apply, by analogy, the common law d octrine of spoliation of evidence. His argument

concludes “his cases should be reversed and rendered in all things” an d he prays for reversal and rend ition, or remand to

the trial court.
The State in itially

challen ges our ju risdicti on over th is appea l. Its challenge is based
on the lan guage of artic le 64.05 in effect at the time appellant filed h is motions. In July 2002 the statute provided:
An appeal of

a finding under Article 64.03 5 or 64.04 6 is to a court of appeals, exceptthat 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. 764 apply o nly to mo tions fil ed after t he effecti ve date of Septemb er 1, 200 3. The prior law

continue s in effe ct for moti ons file d prior to that date

. -6- Acts of April 5, 2001, 77th Leg. R.S., ch. 2, § 2, 200 1 Tex. Gen. Laws 2, 4.
The State argues article 64.05 does not authorize this appeal because articles 64.03
or 64.04 do not authorize findings on the State’s destruction of evidence or failure to give notice of such destruction, thus appellant’s points of error do no tchallenge findings under those articles. From that it concludes we have no jurisdict ion over the appe al. In suppo rt, the State cites Wolfe v. State , 120 S.W. 3d 368 (T ex.Crim. App. 200 3) (o ri g. procee ding), Kutzner v. State , 75 S.W.3d 427 (Tex.Crim.App. 2002), and our opinion i n Watson v. State , 96 S.W.3 d 497 (Tex.App.–A marillo 2002, pe t. ref’d).
Wolfeand Kutzner

clearlystand for the proposi tion that , before i ts 2003 a mendment, article 64.05 did not

authorize appeal of findings under any article of Chapter 64 but 64.03 and 64.04. Wolfe , 120 S.W. 3d at 371 ; Kutzner , 75 S.W.3 d at 434. As the Court of Criminal Appeals recently noted in Bayless v. State , 91 S.W.3d 801, 803 n.2 (Tex.Cri m.App. 20 02), there is a dis ti nction t o be drawn between a court of appeals’ jurisdiction over an appeal and its powe r to addre ss the mer its of an appella nt’s cla ims. Observing thatdistinction, we cannotagree with the State that we lack jurisdiction over this appeal

. Nonetheless, we
a gree th at the points of error appellant presents must be dismissed. Th e language in forme r article 64.05 referring to appeal of findings under articles 64.03 and 64.04 is reflective of the limited actions a trial court can take in a Chapter 64 proce eding. As this court recognized in Watson , Chapter 64 does not authorize a trial court to render an order releasing a convicted person. 96 S.W.3d at 500. Likewise, our review of the trial court’s-7-

action is limited to the matters the trial court was authorized to con sider

. Id. In W atson , the appella nt presen ted chal lenges to a findi ng under arti cle 64.03, and argued that the failureto preserve evidence denied him due process of law. Id. at 498. We considered his firstissue, holding the evidence supported the trial cou rt’s finding there was no testable biologi cal mater ial. Id. at 500.
With regard to Watson’s due process claims, we initial ly noted that, eve n if it were applicable, article 38.39 provides no remedy, from a convicting court or otherwise, for the failureto preserve biological material. Id. at 500. Unlike C hapter 64 , there is no trial court proceeding under

article 38.39 so there can be no judgment or order from which an appeal
can be brought. We also recognized that the only final relief authorized by Chapter 64 is rendition of a findin g on whether results of DNA testing are favorable to the convicted person. Art. 64.04. Because Watson sought release from custody on the basis of alleged deprivation of

constitutional rights, his request “amounts to a request for habeas [corpus] relief.” Id. at 500. Noting this court’s jurisdiction does not extend to writs of habeas corpus,
we dismissed those points of error for want of jurisdiction, and affirmed the judgment of the trial cou rt. Id.
Like Watson, appellant alleges deprivation of his constitutional right to due process. He seeks reversa l, not of the order from which he brings this appeal , but of his original convictions. Also like Watson, appellant cites no authority showing we may consider the issues he presents. Id. Because his po ints of e rror do not present challenges to findings of the trial c ourt made under articles 64.03 or 64.04 but instead seek relief we are not8 See Phynes v . State , 828 S.W.2d 1 (Te x.Cr im.App. 1 992); Gray v. Sta te , 134 S.W.3d 471 (Tex.App.–Waco 2004, no pet.) (noting difference between dismissal of appeal and affir mance of j udgment). -8- authorized to give, we may not consider either of appellant’s points, and we dismiss them both. Having dismissed the points of error appellant presents, we dismiss the appeals. 8 James T. Campbell Justice
Do not publish.