                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS


    ROY LEE KINNEY,                                         §
                                                                     Nos. 08-11-00128-CR
                                     Appellant,             §
                                                                        Appeal from the
    v.                                                      §
                                                                    Criminal District Court #3
                                                            §
    STATE OF TEXAS,                                                 of Tarrant County, Texas
                                                            §
                                     Appellee.                          (TC# 0221069D)
                                                            §


                                                    OPINION

           Roy Lee Kinney (“Kinney”) appeals the trial court’s denial of his motion for

post-conviction DNA testing. We affirm.

                           FACTUAL AND PROCEDURAL BACKGROUND

           In 1984, Kinney was convicted of aggravated sexual assault and sentenced to 99 years in

the Institutional Division of the Texas Department of Criminal Justice, a conviction and sentence

upheld by the Fort Worth Court of Appeals in 1985. See Kinney v. State, 02-84-00275-CR

(Tex.App.--Fort Worth May 2, 1985, pet. ref’d)(not designated for publication). In 2002, Kinney

moved for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal

Procedure and moved for appointment of counsel.1 In 2005, Kinney’s court-appointed counsel

obtained an order from the trial court requiring custodians of records he identified who might have

DNA evidence, to search for such evidence and provide a report of their findings to him. In 2010,

the State responded to Kinney’s motion, arguing that Kinney was not entitled to post-conviction


1
    The trial court granted Kinney’s request for counsel in 2004.
DNA testing because, as shown by the affidavits produced by the State, the DNA evidence that had

existed could no longer be located leaving nothing to test. Without conducting a hearing, the trial

court denied Kinney’s motion for post-conviction DNA testing.

                                                   DISCUSSION

         In his single issue on appeal, Kinney argues that the trial court violated his federal and state

due process rights by failing to hold a hearing wherein he, his counsel, and witnesses could

ascertain what had happened to the lost DNA evidence and why two of the affiants executed their

affidavits “long before [he] filed his . . . motion.”

         Kinney did not request a hearing, and even if he had, the trial court was not constitutionally

required to hold a hearing pursuant to Article 64.03 of the Texas Code of Criminal Procedure to

determine whether Kinney was entitled to post-conviction DNA testing.2 See Ex parte Gutierrez,

337 S.W.3d 883, 889, 892-94 (Tex.Crim.App. 2011)(concluding that there is no free-standing

due-process right to post-conviction DNA testing and that there are no constitutional

considerations in a proceeding under Chapter 64 of the Texas Code of Criminal Procedure).

Relying on In the Interest of J.W.T., 872 S.W.2d 189 (Tex. 1994) and County of Dallas v. Wiland,

216 S.W.3d 344 (Tex. 2007), Kinney contends that he had a fundamental right to a hearing.3

However, his reliance on these cases is misplaced.


2
  Article 64.03 does not require the trial court to conduct an evidentiary hearing. See TEX.CODE
CRIM.PROC.ANN. art. 64.03 (West Supp. 2011); Rivera v. State, 89 S.W.3d 55, 58-9 (Tex.Crim.App. 2002)(holding
that Article 64.03 does not require a hearing).
3
  Citing Pena v. State, 226 S.W.3d 634 (Tex.App.--Waco 2007, pet. granted), rev’d on other grounds, 285 S.W.3d 459
(Tex.Crim.App. 2009), Kinney also argues that the due course of law provision under the state constitution provides a
greater level of protection with respect to lost or destroyed evidence than the due process provision of the federal
constitution. However, Kinney’s reliance on Pena is misplaced. Pena concerned evidence lost in a criminal trial,
not in a proceeding under Chapter 64. As explained above, the nature and purpose of a proceeding under Chapter 64
is fundamentally different than the nature and purpose of a proceeding in a criminal trial, where adjudication of guilt is
the issue.
                                                            2
           A proceeding under Chapter 64 of the Texas Code of Criminal Procedure is fundamentally

different from a civil proceeding concerning the adjudication of parental rights or employment

disputes. The purpose of a proceeding under Chapter 64 is not to adjudicate a defendant’s guilt,

previously determined in a criminal trial, but to provide a procedural vehicle for obtaining

exculpatory evidence that might then be used in a state or federal habeas proceeding. See Ex

parte Gutierrez, 337 S.W.3d at 890 (explaining the purpose of a proceeding under Chapter 64).

Precisely because a proceeding under Chapter 64 is not a criminal trial in which adjudication of

guilt is at issue, but rather an independent, collateral inquiry into a defendant’s conviction, such a

proceeding does not implicate the constitutional presumptions and rights a defendant enjoys in a

criminal trial. See id. at 893-94 (holding that the constitution does not bar a trial court from

considering statements in a Chapter 64 proceeding that would otherwise be inadmissible in a

criminal trial); Thompson v. State, 123 S.W.3d 781, 785 (Tex.App.--Houston [14th Dist.] 2003,

pet. ref’d)(holding that unlike in a criminal trial, a defendant does not enjoy a presumption of

innocence and does not have a federal or state constitutional right to be present and confront and

cross-examine witnesses at a post-conviction DNA hearing).

           We hold that the trial court did not violate Kinney’s federal and state due process rights by

failing to hold an evidentiary hearing under Article 64.03 of the Texas Code of Criminal Procedure

to determine whether Kinney was entitled to post-conviction DNA testing.

                                            CONCLUSION

           We affirm the trial court’s judgment denying Kinney’s motion for post-conviction DNA

testing.




                                                    3
April 4, 2012
                                                      CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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