David Allen Hall v. Pedernales Electric Cooperative, Inc.; John Worrall, Individually and as representative of others similarly situated; Glenn Van Shellenbeck, Individually and as representative of o

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2009 » David Allen Hall v. Pedernales Electric Cooperative, Inc.; John Worrall, Individually and as representative of others similarly situated; Glenn Van Shellenbeck, Individually and as representative of o

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-08-00373-CV

Case Date: 03/05/2009

Plaintiff: PD JERRY WAYNE BRIDGES

Defendant: THE STATE OF TEXAS (Other)

Preview:Phillip Joseph Pohl v. The State of Texas--Appeal from 112th Judicial District Court of Sutton County
MEMORANDUM OPINION No. 04-04-00286-CR Philip Joseph POHL, Appellant v. The STATE of Texas, Appellee From the 112th Judicial District Court, Sutton County, Texas Trial Court No. 1102 Honorable M. Brock Jones, Jr., Judge Presiding Opinion by: Phylis J. Speedlin, Justice Sitting: Alma L. L pez, Chief Justice Catherine Stone, Justice Phylis J. Speedlin, Justice Delivered and Filed: January 19, 2005 AFFIRMED Philip Joseph Pohl appeals the denial of his post-conviction motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Pohl contends the trial court erred in denying his motion based on its finding that no evidence exists to be tested, and erred in denying his request for a bench warrant and his "motion to suppress ex parte procedures and communications." We overrule Pohl's issues on appeal and affirm the trial court's order. Background On November 5, 1985, Pohl pled guilty to aggravated sexual assault and indecency with a child. Pursuant to his plea agreement, he was sentenced to life in prison. Pohl subsequently filed petitions seeking a writ of habeas corpus in both state and federal court, which were denied. Pohl then filed a pro se motion for appointment of counsel to assist him in filing a request for DNA testing, which was granted. A few months later, Pohl filed a motion for appointment of an investigator to assist him in pursuing his request for DNA testing, an application for a bench warrant and a "motion to suppress ex parte procedures and communications." On August 4, 2003, the court appointed an investigator, and held the other two motions in abeyance pending the filing of Pohl's DNA motion. On January 22, 2004, Pohl filed his motion for forensic DNA testing, asserting that the State is in possession of unspecified items of evidence that if subjected to DNA testing would demonstrate that Pohl was impotent at the time of trial, or would show that the evidence does not match Pohl's DNA; he contends he would not have been prosecuted or convicted if exculpatory DNA results had been obtained. Pohl asserts identity was a central issue in his case because no physical evidence connected him directly to the crime, and the victim statements were "suspect." The State filed its response with three sworn affidavits, (1) stating that no DNA evidence was collected in Pohl's case, and that the identity of the perpetrator was not in issue because the Pohl children were the victims and their statements implicated only Pohl. After a hearing on March 24, 2004, the trial court denied the motion and entered findings of fact and conclusions of law stating that no DNA evidence was collected in Pohl's case, the identity of the perpetrator was and is not an issue in the case, and Pohl failed to show a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA results had been obtained. The trial court concluded that Pohl had failed to meet the
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requirements of article 64.03(a)(1) and (a)(2). Tex. Code Crim. Proc. Ann. art. 64.03(a)(1), (2) (Vernon Supp. 200405). Pohl filed an appeal to this court. Analysis In his first issue, Pohl argues the trial court erred in denying his motion for DNA testing based on its finding that no evidence exists to be tested. We review the trial court's decision on a post-conviction motion for forensic DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard, we review with almost total deference the trial court's determination of issues of historical facts and application-oflaw-to-fact issues that turn on credibility and demeanor. Id. By contrast, under the bifurcated standard of review, we review de novo other application-of-law-to-fact issues that do not turn on credibility and demeanor, such as the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence. Id. To obtain DNA testing under Chapter 64, several requirements must be met. See Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004-05). The convicting court may not order testing under Chapter 64 unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (en banc). One of those preconditions is a determination by the convicting court that "the evidence still exists and is in a condition making DNA testing possible." Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2004-05). The trial court may base its findings under Chapter 64 solely on affidavits. Rivera, 89 S.W.3d at 59; see also Mearis v. State, 120 S.W.3d 20, 24 (Tex. App.--San Antonio 2003, pet. ref'd) (trial court may rely on defendant's motion and State's written response, with or without affidavits, in determining whether to order DNA testing). Here, the three affidavits attached to the State's response state that no (physical) evidence was collected in Pohl's case; Pohl presented no evidence to the contrary. His motion merely makes the conclusory statement that unidentified evidence still exists and "should be in a condition that would make the extraction and testing of DNA possible." His supporting affidavit does not add any facts in support of his assertion that evidence exists that could be subjected to DNA testing. The determination of whether evidence exists which may be subjected to DNA testing is reviewed with deference because it is a question of fact which turns on an evaluation of credibility. Rivera, 89 S.W.3d at 59. We conclude the trial court did not abuse its discretion in finding that no evidence exists which could be subjected to DNA testing, and did not err in denying Pohl's motion for failure to meet the requirements of article 64.03(a)(1)(A). In his second and third issues, Pohl asserts the trial court erred by (1) denying his application for a bench warrant to attend the hearing on his DNA motion, and (2) denying his "motion to suppress ex parte procedures and communications" based on his request to be present at any hearing on his DNA motion. The two motions were filed several months before Pohl filed his motion for DNA testing. At the August 4, 2003, hearing on Pohl's request for appointment of an investigator, the trial court held both motions in abeyance, stating "I don't have anything to bench warrant him back here to hear ... I don't have anything actively happening." On March 24, 2004, the court conducted a hearing on Pohl's motion for DNA testing, and denied the motion based on the State's affidavits. Pohl was not present at the hearing. A defendant has no state or federal constitutional right to be present at a post-conviction DNA hearing. Mearis, 120 S.W.3d at 24; see also Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000) (en banc) (applicant for post-conviction writ of habeas corpus has no right to be present at hearing). We hold the trial court did not err in denying Pohl's motion for a bench warrant to attend the hearing on his DNA motion. Likewise, the court did not err in declining to grant Pohl's "motion to suppress ex parte procedures and communications" related to his DNA motion. The State asserts in its brief that all communications and proceedings concerning Pohl's request for DNA testing occurred in open court. Pohl does not assert any facts to the contrary in his brief. The record does not contain any evidence or other indication that any improper ex parte communications occurred in relation to Pohl's motion for DNA testing. Based on the foregoing reasons, we overrule Pohl's issues on appeal and affirm the trial court's order denying DNA testing. Phylis J. Speedlin, Justice DO NOT PUBLISH

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1. The three affidavits were from the Sonora Police Chief, the Sutton County Sheriff, and Texas Ranger Jess Malone of the Rangers Division of the Texas Department of Public Safety. Each affiant stated that his department's records showed that no (physical) evidence was collected in connection with Pohl's case.

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