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

J UAN MOL I

NA, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00218- CR

Appea l from 290th District Court of B exar County , Texas (TC # 1987-CR-5143)

O P I N I O N
J uan Molina appea ls from the denial of his motion for post-conviction DNA testing pursuant to Article 64.03 of the Texas Code of Criminal Procedure . We dismi ss the appea l as moot.
F ACTUAL SUMMA RY Molina was char g ed with ag g rava ted sexual assault in 1987 a n d a ju r y c o nvicted him in 1988. Molina first filed a motion for DNA testing in 2001 but the trial court denied that motion. I n 2009, Molina filed a second motion for post-conviction DNA testing of a m ed i cal rape kit rela ted to an examination of the victim near the time of the offe nse. The State filed a response indicating that the
rape kit was no longe r in the possession of the Be x ar County For ensi c S ci ence Center but a bag containing “under g arme nts” wer e still maintained by the San Antonio Police Depa rtment Property
Room. The trial court order ed tes t i ng of the woman’s underw ear collecte d as evidenc e and

1
maintained at the SAPD Property Room. J ohn C am p a, an investiga tor with the Be x ar County

T h e t r i a l c o u r t d e t e r m i n e d , b a s e d o n e v i d e n c e p r e s e n t e d a t t h e h e a r i n g s o n M o l i n a ’ s m o t i o n , t h a t t h e r a p e k i t 1

c o u l d n o t b e t e s t e d b e c a u s e i t h a d b e e n d e s t r o y e d

. M o l i n a d o e s n o t r a i s e a n y i s s u e o n a p p e a l r e g a r d i n g t h i s d e t e r m i n a t i o n .District Attorney ’s Of fi ce , re moved the evidenc e bag containing the underw ear from the SAPD
proper ty room and delivered t he evidence to the TDP S crime laboratory in Austin on October 20,
2009. Ang ela Tanzil lo-Swarts, a DNA analy st with the TDPS crime labora tory , perf ormed “ tape lifting” on the underwea

r t o pick up “tra ce evidence ” such as “l o o s e h ai rs o r fibers.” She did not observe any visible trac e evidenc e on the tape lif t s. Tanzillo-Swarts followed the proce dure for
prese rving the tape lift, place d it inside of a manilla envelope , and seale d it. She did not subject the tape lift to additional testing beca use that task would be perf ormed by a differ ent analy st. TanzilloSwarts then examined the underw ear for body fluid, including semen, by apply ing an a lt e r n a ti v e light

source which could make a body fluid stain visible. Tanzillo-Swarts found three stains and applied acid phosphatase to detec t semen. The AP test was neg ative. Tanzillo-Swarts tested one discolored

are a on the underw ear for blood, but tha t te st w as neg ative. She also perf ormed a water extraction

on a stain which had rea cted to the alterna tive light source in order to extract any cellular materia l. Tanzillo-Swarts examined the extracted materia l using a microscope but she did not fin d t he
prese nce of sperm which would have been a positive indicator for semen. Her sear ch was neg ative. After completing the testing, Tanzillo-Sw ar ts returne d the evidenc e to its orig inal packa g ing,

rese aled it, and return ed i t t o t h e evidenc e vault. She did not perf orm any further testing on the underw ear and she did not see the evidenc e ag ain afte r placing it in the evidenc e vault. The TDPS crime labora tory place d the packa g e containing the underw ear in the mai l fo r return to the Be x ar County District Attorney ’s Off

ice. Rebec ca Vasque z, a fore nsic scientist employ ed by the TDPS crime labora tory , was assig ned the task of analy

zing the tape lift collecte d by Tanzillo-Swarts. She discovere d that the evidenc e had been mailed back to the Bexar County District Attorney ’s Offic e. After waiting for over a monthfor the evidenc e to be returne d for the trac e evidenc e analy s i s , Va s quez contac ted the District

Attorney ’s Offic e by telephone a n d Ru s s e ll Br andau advised her that they wer e looking for evidenc e. Vasque z made an inquiry with the U.S. Postal Service but the item could not be trac ed beca use more than six ty day s had elapse d since it was place d in the mail. The trial court conclude d that the packa g e had been lost in the mail and additional testin g o n t h e trac e evidenc e could not be perf ormed. Additionally , the court deter mined that no biologica l evidenc e, i ncluding semen, had been found which could be tested for compar ison with Molina’s DNA. The trial court subsequently denied Molina’s motion for f urther D NA testing

. P OST -CONVICTION DNA TES TING
I n his sole point of err or, Molina asserts that the State, acting throug h the TDPS c rime lab, failed to comply with the trial court’s order for DNA testing. Molina reque sts that we order the State and the TD PS cr ime lab to c omply with the order

. He additionally arg ues that the trial cour t erre d by not requiring additional testing on the evidenc e. Mootness Neither party has addres s ed whether the loss of the evidenc e Molina seeks to have tested rende rs t he appeal moot

. We raise t h e i s s u e s ua sponte beca use i t is a matter of j urisdiction. See
Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc. , 971 S.W .2d 439, 4 4 2 (Tex. 1998)(stating that the constitutional roots of justiciabilit y doctrines such as ripene ss, as well

as standing and mootness, lie in the prohibition on advisory opinions, whic h in tur n stem from the
separ ation of power s doctrine set forth in Article 2, Se ct i o n 1 of the Texas Constit ution); Texas Association of Business v. Texas Air Control Board , 852 S.W .2d 440, 444 (Tex. 1993) (explaining that the Texas Supreme Court has construed the separ ation of power s article to prohibit courts from issuing advisory opinions beca use such is the function o f t h e executive rathe r than the judicialdepar

tment). Courts do not have j u ri s d i ct ion to provide advisory opinions, or to decide case s on hy pothetical or conting ent fa cts. Valley Baptis t Medic al Center v. Gonzalez , 33 S.W .3d 821, 822 (Tex. 2000); Gene ral Land Office of the St ate of Texas v. OXY U.S.A., Inc. , 789 S.W .2d 569, 570 (Tex. 1990); Beltran v. Beltran , 324 S.W .3d 107, 110 (Tex.App.--El Paso 2 0 1 0, no pet.). The

mootness doctrine prec ludes a court from rende ring an advisory opinion. Camaren a v. Texas Employme nt Comm ission , 754 S.W .2d 149, 151 (Tex. 1988) ; Beltran , 324 S.W .3d at 110. A case is rende red moot when: (1) it appea rs that a party seeks to obtain a j u d gm ent upon some
controve rsy , when in rea lity none ex ists; or (2) a party seeks a ju d g ment upon some matter which

cannot have a prac tical leg al eff ect upon a then exis ting controve rsy . Beltran , 324 S.W .3d at 110. That is to say , when an actua l controve rsy no longe r exis ts betwee n the parties, “the decision of an appellate court would be a mer e ac ademic e x erc ise.” Beltran , 324 S.W .3d at 110, quoting Hanna v. Godwin , 876 S.W .2d 454, 457 (Tex.App.--El Paso 1994, no wr it). The evidenc e Molina seeks to have test ed i s no longe r in the State’s possession and the

rec ord supports the trial court’s deter mination that the evidenc e is lost in the U.S. mail. Assuming for the sake of arg ument that we ag ree with Molina and rule in his favor , our judgme nt requiring that the evidenc e be tested could not be enfor ced. As such, it could not have a prac tical leg al eff ect upon the controve rsy

and it would be conting ent on the evide nce be ing f ound. There are two exceptions to the mootness doctrine. The first exception occur s when a claim is “ca pable of repe tition , y et ev ad ing revie w.” Pharris v. State , 165 S.W .3d 681, 687-88 (Tex.Crim.App. 2005). This ex ception is limit ed to the situation where : (1) the challeng ed ac tion

was in its duration too short to be fully litigated prior to its cessa tion or expiration, and (2) there was

a rea sonable expectation that the same complaini ng party would be subjected to the same action
ag ain. Id

. at 688; W

illiams v. Lara , 52 S.W .3d 171, 184 (Tex. 2001). This exception does not applyto this appeal.

The second exception is ref err ed to as the collater al conseque nces exception. Gene ral Land Office , 789 S.W .2d at 571. The collater al conseque nces exception applies to sever ely prejudicia l events, the eff

ects of which continue to stigmatize helpless or hated individuals l o n g af t er the unconstitution al j u d gm ent has cea sed to opera te. Id. ; In re R.M. , 234 S.W .3d 103, 104-05 (Tex.App.--El Paso 2007, no pet.). The Texas Supreme Court applied the collater al conseque nces exception in Carril lo v. State , 480 S.W .2d 612, 616-17 (Tex. 1972) wher e a juvenile was discharg ed from probation while his case was on appea l. The Court held that the appea l was not moot beca use juvenile adjudi ca t i o ns car ry deleter ious collater al eff ects and leg al conseque nces including the stigma attache d to being adjudg ed a juve nile delinquent. Id. at 617. The S upreme Court based its decision on the premise that “a minor should have the rig ht to clea r himself by appea l” and this rig ht should not disappea

r when the sentenc e g iven is so short that it expires befor e the appellate proce ss is c ompleted. Id

. When f ace d with a simil ar issue in In re R.M. , this Court distinguished Carril lo and did not apply the collater al conseque nces exception in a case wher e the juvenile did not appea l the adjudication order and only challeng ed the order modify ing dispositi on. In re R.M., 234 S.W .3d

at 105. We rea soned that our resolution of the issues prese nted on appea l could not have any impact on the collater al ef

fec ts and leg al conse quence s of being adjudg ed a juve nile delinquent. Id.
I n the instant c ase, our judgme nt r equiring that the lost e vidence be subjec ted to additional testing would have no eff ect on Molina’s underly

ing convi ct i o n u n less the evidenc e is someday found and subjected to testing. Even assuming Molina is entitled to reve rsal of the trial court’s order deny ing additional DNA testing, our decision would not have the eff ect of clea ring Molina’s name

nor would it have any impact on the collater al eff ects and leg al conseque nces o f h i s underly ing conviction. We conclude that the collater al conseque nces exception does not apply in t h i s case .Acc ording ly , the appe al is dismis sed as moot.

November

9, 2011 A N N CR A WFORD McCL

U RE , Ch ie f Ju s ti c e Be fore McClure, C.J ., Rivera, a nd Antcliff, JJ

. (Do Not Publish)