                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00263-CR


JEROME DIEGO BROWN                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


                                      ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Appellant Jerome Diego Brown appeals from the trial court’s denial of his

motion for post-conviction DNA testing. In three issues, he argues the trial court

erred by considering affidavit evidence and by failing to hold a hearing on his

motion. We overrule the issues and affirm the trial court’s denial.

      On June 4, 1993, Officer J.M. Smith saw Appellant drop what appeared to

be narcotics on the ground. Officer Smith approached Appellant and performed
      1
       See Tex. R. App. P. 47.4.
a pat-down search.         Appellant began to struggle, causing Officer Smith and

Appellant to fall to the ground. Appellant snatched Officer Smith’s gun and shot

him in the leg. Appellant fled, but was apprehended in the attic of a nearby

building. Officer Smith’s gun was found in the attic. Appellant’s sister and two

other women saw Appellant shoot Officer Smith. Another witness, LaAndrela

Harris, heard gunshots and saw Appellant, whom she knew, holding a gun over

Officer Smith’s body. Appellant admitted shooting Officer Smith, but asserted it

was an accident: “Apparently I shot at the ground with his gun and he rolled over

and the bullet hit him.”

      On April 29, 1996, Appellant pleaded guilty under a plea-bargain

agreement to aggravated assault on a police officer with a per se deadly weapon.

See Tex. Penal Code Ann. § 22.02 (West 2011).           The trial court sentenced

Appellant to 32 years’ confinement. Appellant did not appeal his conviction.

      On January 2, 2004, 2 Appellant filed a pro se motion for post-conviction

DNA testing and requested appointment of counsel. See Act of April 3, 2001,

77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2 (amended 2011) (current

version at Tex. Code Crim. Proc. Ann. art. 64.01(a) (West Supp. 2012)). The trial

court appointed counsel for purposes of filing a motion for post-conviction DNA


      2
       The date Appellant filed his pro se motion determines the version of the
applicable statute that is relevant to Appellant’s arguments. See Act of April 25,
2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17 (effective date
may also be found at Tex. Code Crim. Proc. Ann. art. 64.01 historical & statutory
notes (West 2006 & Supp. 2012)).


                                          2
testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.

Laws 2, 3, amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003

Tex. Gen. Laws 16, 16 (amended 2007) (current version at Tex. Code Crim.

Proc. Ann. art. 64.01(c) (West Supp. 2012)). On March 25, 2011, appointed

counsel filed a request for DNA testing. After receiving notice of Appellant’s

motion, the State responded that the police officer’s pants were available for

DNA testing. 3 See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex.

Gen. Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann.

art. 64.02 (West Supp. 2012)). Without holding a hearing, the trial court adopted

the State’s proposed findings of fact and conclusions of law and denied

Appellant’s motion.   The trial court reasoned that identity was not an issue:

“Based on the totality of the evidence, including [Appellant’s] plea, confession,

and admissions, identity as to who committed the offense is not and was not at

issue.” The trial court clarified that its conclusion that identity was not at issue

was not based solely on Appellant’s plea, confession, and admission, which is

prohibited. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.

Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art.

64.03(b) (West Supp. 2012)). Appellant filed a notice of appeal from the denial.

See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4,


      3
       The State also disclosed that the prints from Officer Smith’s gun and a
gun-shot-residue test were available, but asserted that they would not contain
biological evidence.


                                         3
amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen.

Laws 16, 17 (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (West

2006)).

      A convicted person who moves for post-conviction DNA testing under

former article 64.01(b)(1) bears the burden of showing that evidence containing

biological material was in the possession of the State, but was not previously

subjected to DNA testing (1) because DNA testing was not available; (2) because

DNA testing was available, but not technologically capable of providing probative

results; or (3) 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 3,

2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2–3 (amended 2011)

(current version at Tex. Code Crim. Proc. Ann. art. 64.01(b)(1) (West Supp.

2012)). If the convicted person meets these criteria, a trial court must order DNA

testing only if the convicted person shows by a preponderance of the evidence

that he would not have been convicted if exculpatory results had been obtained

through DNA testing and that identity was at issue in the case. See Act of April

3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3, amended by Act

of April 25, 2003, 78th Leg., R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16, 16

(current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2012)).

See generally Leal v. State, 303 S.W.3d 292, 295–96 (Tex. Crim. App. 2009).

When, as here, the trial court denies a motion for post-conviction DNA testing




                                        4
without conducting a hearing, we review the ruling de novo. See Smith v. State,

165 S.W.3d 361, 363 (Tex. Crim. App. 2005).

      In his first and second issues, Appellant argues that the trial court erred by

relying on witness affidavits, which were inadmissible hearsay and violated the

Confrontation Clause. But Appellant failed to raise these arguments in the trial

court even though the State filed its response to Appellant’s motion

approximately three weeks before the trial court entered its denial. Appellant’s

failure to present his hearsay and Confrontation Clause objections to the trial

court forfeits his complaint. See Tex. R. App. P. 33.1(a)(1); Sepeda v. State, 301

S.W.3d 372, 374 (Tex. App.—Amarillo 2009, pet. ref’d). We overrule issues one

and two.

      In his third issue, Appellant contends that the trial court erred by failing to

hold a hearing before denying the motion. As with his first two issues, Appellant

failed to request a hearing on his motion or otherwise complain that a hearing

was necessary.     This failure forfeits his complaint.     See Tex. R. App. P.

33.1(a)(1); Sepeda, 301 S.W.3d at 376. Indeed, a trial court is not required to

hold a hearing before determining whether the movant is entitled to post-

conviction DNA testing. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim.

App.), cert. denied, 543 U.S. 864 (2004); Jones v. State, 161 S.W.3d 685, 689

(Tex. App.—Fort Worth 2005, pet. ref’d); cf. Act of April 3, 2001, 77th Leg., R.S.,

ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of April 25, 2003, 78th

Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16, 16 (amended 2011) (current


                                         5
version at Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2012)) (mandating

hearing after DNA testing conducted). We overrule issue three.

      Having overruled Appellant’s issues, we affirm the trial court’s denial.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 13, 2013




                                         6
