HERIBERTO SAENZ v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-10-00216-CR

Case Date: 02/17/2011

Plaintiff: HERIBERTO SAENZ

Defendant: THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

Preview:Dempsey Sutton v. The State of Texas--Appeal from
186th Judicial District Court of Bexar County
MEMORANDUM OPINION
No. 04-05-00453-CR
Dempsey Leon SUTTON,
Appellant
v.
The STATE of Texas ,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 1985-CR-1279A
Honorable Maria Teresa Herr , Judge Presiding
Opinion by: Karen Angelini , Justice
Sitting: Sarah B. Duncan , Justice
Karen Angelini , Justice
Phylis J. Speedlin , Justice
Delivered and Filed: April 12, 2006
AFFIRMED
Dempsey Leon Sutton appeals the trial court's denial of his motion for forensic DNA testing. In one issue on appeal,
Sutton contends that the trial court erred in overruling his motion without filing findings of fact or conclusions of law.
Finding no error, we affirm.
Discussion
In August 1985, Sutton pled guilty and was sentenced to serve thirty-five years confinement in the Texas Department
of Corrections for the offense of aggravated sexual assault. In January 2005, Sutton filed a motion for forensic DNA
testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. The State responded by providing affidavits
indicating that no biological evidence had been maintained in the case. The trial court denied Sutton's motion in an
order dated June 7, 2005. In its order, the trial court included the following recitations:
1. The Court finds that the evidence, no longer exists; therefore [it] is not in a condition to make DNA testing possible.
2. The Court further finds that identity was not an issue in this case, and [that] Defendant has not established by a
preponderance of the evidence that the defendant would not have been convicted if exculpatory results had been
obtained through DNA testing.
Under chapter 64 of the Texas Code of Criminal Procedure, a convicted person may submit a motion for forensic DNA
testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2005). The
court may order forensic DNA testing under chapter 64 only under the following circumstances:
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(1) The court must find that (A) the evidence still exists and is in a condition making testing possible and has been
subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or
altered in any material respect, and (B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that (A) he would not have been convicted if
exculpatory results had been obtained through DNA testing, and (B) the request for the proposed DNA testing is not
made to unreasonably delay the execution of the sentence or the administration of justice.
Id. art. 64.03(a). Additionally, if the court makes these findings and the convicted person meets these requirements, the
court shall order that forensic DNA testing be conducted. Id. art. 64.03(c).
Sutton argues that chapter 64 requires the trial court to enter findings of fact and conclusions of law when either
granting or denying a motion for forensic DNA testing. And, according to Sutton, because no findings were entered,
he has no notice of the trial court's reasons for denying his motion, making judicial review impossible. Sutton,
however, ignores the findings recited in the trial court's order. As noted above, the trial court specifically found the
following: (1) the evidence no longer exists; (2) the evidence is, therefore, not in a condition to make DNA testing
possible; (3) identity was not an issue in the case; and (4) Sutton did not establish that he would not have been
convicted if exculpatory results had been obtained through DNA testing. Thus, the trial court did not err, and we
overrule Sutton's sole issue on appeal. We further note that the record supports the trial court's finding that the evidence
no longer exists.
Finding no error, we affirm the trial court's judgment.
Karen Angelini , Justice
Do not publish
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