Michael Toney v. State

Opinion issued

April 12, 2012

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-11-00375-CR

———————————

MICHAEL

SCOTT TONEY, Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the 208th

District Court

Harris County, Texas

Trial Court Case No. 9403369

MEMORANDUM

OPINION

Pro

se appellant, Michael Scott Toney, challenges the convicting court’s order

denying his motion for post-conviction DNA testing filed pursuant to Chapter 64

of the Code of Criminal Procedure. Appellant

identifies six issues on appeal. He

claims (1) in four issues that the convicting court erred by not ruling in his

favor at the Chapter 64 hearing on matters pertaining to appellant’s desire to

compel the testimony of an absent witness, who appellant claims has knowledge

regarding DNA testing previously completed in the case; (2) the convicting

court “testified” at the hearing; and (3) the convicting court erred by believing

the State’s witness and finding that no evidence containing biological material

is available for DNA testing.

We

affirm.

Background

In

1993, a jury found appellant guilty of burglary of a habitation with the intent

to commit the offense of aggravated assault and assessed his punishment at 40

years. This Court affirmed his

conviction on direct appeal. See Toney v. State , No. 01–94–00239–CR, 1996

WL 183411 (Tex. App. — Houston

[1st Dist.] Apr. 18, 1996, pet. dism’d untimely filed) (not designated for

publication).

In

2009, the convicting court granted appellant’s motion for appointment of

counsel to assist in filing a post-conviction motion for DNA testing. Appellant filed his motion in December

2009. In the motion, appellant requested

to examine “pertinent evidence or samples . . . taken from the scene of the

crime” that was not “previously subjected to DNA testing.”

The

convicting court granted appellant’s request for an evidentiary hearing on the

motion. The hearing was held on June 28,

2010. Appellant’s counsel and the

State’s counsel attended the conference with appellant attending via live video

feed.

At

the hearing, the State presented the testimony of Barbara Anderson, the

post-trial exhibit clerk for the Harris County District Clerk’s Office. Anderson testified that her office’s records

indicate that, following appellant’s trial, on March 1, 1994, a number of

physical, non-documentary, items, which had been admitted at appellant’s trial,

were received by the district clerk’s office from the court reporter. These items included a blue nylon bag, white

plastic flex grips, bathroom cleaner, a carpet knife, a hammer, a white nylon

cord, and waterproof tape.

Anderson

described the actions she took to locate the physical items for purposes of the

DNA hearing. She stated that, although

she searched for the items “very intensely,” she was unable to locate any of

them. She explained that before

2000, it was her office’s policy to permit destruction of such items. Anderson stated that she strongly believed

these items had been destroyed, pursuant to this policy, even though she did

not find any record of the destruction.

The

State also introduced the affidavits of the property-and-evidence records

custodians for the Harris County Sheriff’s Office, the Houston Police

Department, the HPD crime laboratory, and the HPD latent print laboratory. Each affiant testified that his or her

department possesses no evidence related to appellant’s case.

Appellant

did not call any witnesses at the hearing.

Appellant’s attorney informed the convicting court that he had issued a

subpoena to a person identified as “Sergeant G. Glenn” with the Houston Police

Department. Sergeant Glenn did not

appear at the hearing. Appellant’s counsel

stated that he did not know whether Sergeant Glenn had been served with the

subpoena. The court enquired why

Sergeant Glenn had been subpoenaed.

Appellant and his counsel explained to the convicting court that Sergeant

Glenn had been an investigating officer early in the case in 1993. Appellant stated that Sergeant Glenn

facilitated the taking of a blood sample from him at the police laboratory for the

purpose of DNA analysis. Although he was

aware of Sergeant Glenn’s involvement, appellant claimed that he did not know

Sergeant Glenn’s name at the time of the investigation. He claimed that neither Sergeant Glenn’s

identity nor the results of any DNA analysis on the blood samples were

disclosed to his trial counsel in 1993.

Rather, appellant claimed that he did not discover Sergeant Glenn’s

identity or confirm that DNA testing had been performed on the blood samples until

2007.

The

State’s attorney informed the court that he believed that the blood samples had

been taken from appellant as part of an investigation regarding another case

for which appellant was a suspect. In

other words, the samples and any DNA testing were not related to or useful to

the instant case.

Because

the video feed allowing appellant to participate was disconnected before the

end of the hearing, the convicting court continued the hearing until July 16,

2010. At the continuation, appellant and

his counsel informed the convicting court that appellant had filed a pro se

motion entitled “Motion to Confront and Question a Witness.” However, the motion does not appear in the

record. With respect to the motion,

appellant orally requested the convicting court to allow him to question

Sergeant Glenn regarding the blood samples taken from appellant and subjected

to DNA analysis in 1993. At the end of

the hearing, appellant’s counsel stated to the convicting court, “Just to make

sure the record is clear, that the Court is going to disallow the testimony of

that witness, that officer that I had subpoenaed at the first setting here?” The court responded in the affirmative.

Appellant

then reiterated to the convicting court that Sergeant Glenn had been an

investigating officer and had facilitated the taking of blood samples for DNA

analysis in this case, not another case.

Appellant indicated to the court that the complainant in this case had

scratched her attacker and that samples had been taken from him for comparison.

The

convicting court signed an order denying appellant’s motion for DNA

testing. The convicting court made clear

at the hearing that it would have granted appellant’s motion for DNA testing if

there had been biological material available for testing. The court stated that it denied the motion

because no evidence for biological testing was located.

In

support of its denial, the convicting court adopted the proposed findings of

fact and conclusions of law offered by the State. Among the findings is the following:

The Court finds, based on the credible hearing testimony

of Barbara Anderson [ post-trial exhibit clerk for the Harris County District Clerk’s Office]

and the credible affidavits of [records custodians] Glenda Adkins, Vanessa

Alvarez, Cheryl C. Hurts, and Q. Thigpen, that Defendant fails to meet the

requirement of Article 64.03(a )( 1) of the Texas Code

of Criminal Procedure by showing that evidence containing biological material

still exists and is in a condition making DNA testing possible.

Appellant

now appeals the convicting court’s order denying his motion for DNA testing. Appellant presents six issues.

Purpose of Chapter 64

Appellant’s first, second, and

third issues pertain to appellant’s desire to question Sergeant Glenn regarding

appellant’s claim that, in 1993, Sergeant Glenn directed that blood samples be

taken from appellant and subjected to DNA analysis in this case. Appellant asserts that the convicting court

erred when it (1) denied his pro se motion to “confront and to question”

Sergeant Glenn; (2) determined that a Chapter 64 hearing is not “the proper

proceeding to admit documental evidence that may prove that DNA tests were

performed in this case in the past”; and (3) concluded that Sergeant Glenn’s

“testimony concerning his past involvement in the forensic investigation of

this case was not relevant to the current Article 64.01 proceedings.” Underpinning all of these issues is whether a

motion filed pursuant to article 64.01 of the Code of Criminal Procedure is the

proper procedural vehicle to obtain possibly exculpatory evidence, regarding previously

performed DNA testing, not disclosed to appellant at the time of his trial.

Appellant

does not contend that the blood or other biological samples obtained at

Sergeant Glenn’s direction are still available for testing. To the contrary, such claim was refuted by

the testimony of Barbara Anderson and the affidavits of the records custodians,

which show that no biological evidence has been located for testing in this

case and which the trial court found to be credible. As briefed on appeal, appellant appears to be

seeking evidence relating to the test results of the DNA analysis he claims was

performed in 1993.

The

Court of Criminal Appeals has stated, “Chapter 64 authorizes the convicting

court to order DNA testing, and no more.”

Wolfe v. State , 120 S.W.3d

368, 372 (Tex. Crim. App. 2003); see Ex

parte Tuley , 109 S.W.3d 388, 391 (Tex. Crim. App.

2002) (explaining the limited purpose of Chapter 64). To be entitled to post-conviction DNA

testing, a convicted person must meet the requirements of articles 64.01 and

64.03. [1]

As it

existed in at the time appellant filed his motion, article 64.01(b)(1) provided

that a person could request the convicting court to permit forensic DNA testing

of previously untested evidence

containing biological material that was in the State’s possession during trial

of the offense if he could show that the evidence was not previously subjected

to DNA testing: (A) because DNA testing was ( i ) not

available; or (ii) available, but not technologically capable of providing

probative results; or (B) through no fault of the convicted person, for reasons

that are of a nature such that the interests of justice require DNA testing. See Act

of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001

Tex. Gen. Laws 2 , 2–4 (amended 2011) (current version at Tex. Code Crim. Proc. Ann . art. 64.01(b )( 1) (Vernon Supp. 2011)).

The

convicted person also could seek to re-test biological evidence previously

subjected to DNA testing if he could establish that it could be “subjected to

testing with newer testing techniques that provide a reasonable likelihood of

results that are more accurate and probative than the results of the previous

test.” See id. art . 64.01(b )( 2)

(Vernon Supp. 2011). If one or more of

the items that an appellant seeks to subject to post-conviction DNA testing meet

any of these criteria, the trial court could order testing—but only if other

statutory predicates are also met, such as a finding by the convicting court

that the evidence “still exists and is in a condition making DNA testing

possible.” See id . art . 64.03(a )( 1)(A)( i ) (Vernon Supp. 2011).

Given

the purpose, scope, and plain language of the statute, Chapter 64 does not

provide a procedural vehicle for obtaining potentially exculpatory evidence

pertaining to DNA test results, from an earlier performed DNA analysis, that

were not previously disclosed to appellant.

As stated, “Chapter 64 authorizes the convicting court to order DNA

testing, and no more.” See Wolfe , 120 S.W.3d at

372 . Appellant has not shown that

the convicting court erred with respect to its rulings related to the evidence

appellant sought to obtain through Sergeant Glenn. [2]

We

overrule appellant’s first, second, and third issues.

Compelling Sergeant Glenn’s

Testimony

In his fifth issue,

appellant asserts that the convicting court erred “by refusing to force [Sergeant

Glenn] to honor the issued subpoena and present for inspection the documents

and files that were requested in the subpoena.” [3] The Code of Criminal Procedure requires a

defendant to file an application for a subpoena with the trial court’s clerk if

the defendant wants to ensure the witness’s presence. Tex. Code Crim. Proc.Code Ann . art. 24.03(a)

(Vernon 2009). The defendant must

then properly serve the witness. See id . art . 24.04(a) (Vernon 2009).

If

the witness ignores the “duly served” subpoena, the requesting party shall be

entitled to a writ of attachment “commanding some peace officer to take the

body of a witness and bring him before such court . . . on a day named . . . to

testify in behalf of the State or of the defendant.” Id . art. 24.11 (Vernon 2009); see id. art . 24.12 (Vernon 2009); see also Rodela v.

State , 829 S.W.2d 845, 848 (Tex. App. — Houston [1st Dist.] 1992, pet. ref’d ). However, a defendant is not entitled to a

writ of attachment if he does not properly serve the subpoena on the witness. Ford v.

State , 14 S.W.3d 382 , 391–92 (Tex. App. — Houston [14th Dist.] 2000, no pet.).

As

pointed out by the State, appellant’s counsel informed the convicting court

that he did not know whether the subpoena had been served on Sergeant Glenn. Without establishing that Sergeant Glenn had

been served with the subpoena, appellant has failed to show that he was

entitled to compel the officer’s appearance.

The trial court did not err “by refusing to force [Sergeant Glenn] to

honor the issued subpoena,” as appellant claims.

We

overrule appellant’s fourth issue.

Convicting Court’s Comments

In

his fourth issue, appellant contends that the convicting court abused its

discretion by “literally testifying for [Sergeant Glenn], at the second session

of the hearing.”

As

discussed, the convicting court continued the Chapter 64 hearing because the

video feed allowing appellant to attend was disconnected. At the beginning of the second phase of the hearing,

the convicting court summarized what had occurred at the earlier hearing and

engaged in discussions with the attorneys to gain an understanding of Sergeant

Glenn’s involvement in the case. The

record does not reflect that the convicting court deviated from its role as a

neutral arbiter, as appellant intimates.

In

any event, as pointed out by the State, appellant did not object to any of the

statements by the trial court of which he now complains on appeal. Absent a timely and specific objection to the

improper comments, any error was waived. See Tex. R. App. P . 33.1(a); Sharpe v. State , 648 S.W.2d 705, 706

(Tex. Crim. App. 1983) (holding that any error in trial court’s comments is

waived absent an objection).

We

overrule appellant’s fourth issue.

Finding of No Available

Evidence for Testing

In

his sixth issue, appellant contends that the convicting court erred in finding the

testimony of Barbara Anderson, post-trial exhibit clerk for the Harris County

District Clerk’s Office, to be credible.

Appellant contends that the convicting court should not have believed

Anderson’s testimony regarding her efforts to locate the requested physical

evidence or her conclusion that the district clerk’s office no longer possesses

any physical non-documentary evidence for the instant case.

In

reviewing the convicting court’s Chapter 64 rulings, this Court gives “almost

total deference” to the convicting court’s findings of historical fact and

application-of-law-to-fact issues that turn on witness credibility and demeanor. See Routier v. State , 273 S.W.3d 241, 246

(Tex. Crim. App. 2008). In addition to

the deference we pay to the convicting court’s credibility determinations, we

note that Anderson’s testimony showed that she engaged in a detailed and

thorough search for the physical evidence in this case and that she was

familiar with the retention and destruction policies of the district clerk’s

office. Anderson’s testimony

sufficiently supports the convicting court’s finding that there presently exists

no evidence containing biological material for DNA testing. See Baranowski v. State , 176 S.W.3d 671, 676 (Tex.

App.—Texarkana 2005, pet. ref’d ) (holding that

convicting court properly denied appellant’s motion for post-conviction DNA

testing because record supported finding that no evidence containing biological

material capable of DNA testing existed); Lopez v. State , 114 S.W.3d 711, 717 (Tex. App. — Corpus Christi 2003, no pet.) ( same ).

We

overrule appellant’s sixth issue.

Conclusion

We

affirm the order of the convicting court denying appellant’s motion for DNA

testing.

Laura

Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices

Higley and Brown.

Do not publish. Tex. R. App. P. 47.2( b).

[1]

Since its enactment, Chapter 64 has undergone

several amendments, most recently in 2011. The effective date of the most recent amendments

is September 1, 2011. See Act of June 17, 2011, 82nd Leg.,

R.S., ch. 278, § 5, 2011 Tex. Gen. Laws 882 , 884; Act

of June 17, 2011, 82nd Leg., R.S., ch. 366, § 1, 2011

Tex. Gen. Laws 1015 , 1015–16. Appellant

filed his DNA motion in December 2009. Thus,

the 2011 amendments do not apply.

[2]

Appellant

has attached numerous documents to his appellate brief that are not part of the

record. Because the documents are not

part of the appellate record, we may not consider them in resolving appellant’s

issues. See Raspberry v. State , 535 S.W.2d 871, 873 (Tex. Crim. App. 1976)

(documents attached to pro se supplemental brief not part of record and cannot

be considered by appellate court); Booth

v. State , 499 S.W.2d 129, 135 (Tex. Crim. App. 1973) (appellate court is

not authorized to consider documents attached to appellate brief that are not

part of the record).

[3] Appellant contends that he was denied

his constitutional right to compulsory process when the convicting court did

not compel Sergeant Glenn’s appearance. Under

both the United States Constitution and the Texas Constitution, a defendant

generally has a right to compulsory process in order to call witnesses to

testify on his behalf. See U.S. CONST. amend .

VI; TEX. CONST. art. I, § 10. However, the

Court of Criminal Appeals has made clear that the constitutional protections

afforded defendants in criminal trials do not apply to Chapter 64

proceedings. See Ex parte Gutierrez , 337 S.W.3d 883 , 892 – 93 (Tex. Crim. App. 2011) (“First, because a person’s

effort to secure testing under Chapter 64 does not involve any constitutional

considerations, the trial judge could properly consider the accomplices’

statements. Although evidence offered

against a defendant at a criminal trial and challenged on constitutional

grounds must be admissible to give adequate protection to the values that

exclusionary rules are designed to serve, a Chapter 64 proceeding is not a ‘criminal

trial.’ Rather, it is an independent,

collateral inquiry into the validity of the conviction, in which exclusionary

rules have no place, and there are no constitutional considerations. Article 64.03 does not require any

evidentiary hearing before the trial judge decides whether a convicted person

is entitled to DNA testing. And, if a

hearing is held, the convicted person has no right to be present, no right to

confront or cross-examine witnesses, and no right to have hearsay excluded or

an affidavit considered.”); see also Thompson

v. State , 123 S.W.3d 781 , 784–85 (Tex. App. — Houston [14th Dist.] 2003, pet. ref’d )

(“Unlike a criminal trial, a chapter 64 proceeding such as this one does not

implicate an appellant’s confrontation-clause rights because this type of

proceeding does not necessarily involve any witnesses or accusations against

the appellant. Rather, as set forth in chapter 64, the proceeding involves a

motion made by the applicant followed by the State's non-accusatory response

required under the statute. This type of

proceeding is analogous to a habeas corpus proceeding in that it is an

independent, collateral inquiry into the validity of the conviction. Therefore, as in a post-conviction writ of

habeas corpus proceeding, an applicant for a post-conviction DNA analysis

enjoys neither a presumption of innocence nor a constitutional right to be

present at a hearing.”) ( citations omitted).