                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS

                                                          §
 JUAN MOLINA,                                                                No. 08-10-00218-CR
                                                          §
                             Appellant,                                           Appeal from
                                                          §
 v.                                                                           290th District Court
                                                          §
 THE STATE OF TEXAS,                                                       of Bexar County, Texas
                                                          §
                             Appellee.                                      (TC # 1987-CR-5143)
                                                          §

                                                  OPINION

         Juan Molina appeals from the denial of his motion for post-conviction DNA testing pursuant

to Article 64.03 of the Texas Code of Criminal Procedure. We dismiss the appeal as moot.

                                           FACTUAL SUMMARY

         Molina was charged with aggravated sexual assault in 1987 and a jury convicted him in 1988.

Molina first filed a motion for DNA testing in 2001 but the trial court denied that motion. In 2009,

Molina filed a second motion for post-conviction DNA testing of a medical rape kit related to an

examination of the victim near the time of the offense. The State filed a response indicating that the

rape kit was no longer in the possession of the Bexar County Forensic Science Center but a bag

containing “undergarments” were still maintained by the San Antonio Police Department Property

Room.1 The trial court ordered testing of the woman’s underwear collected as evidence and

maintained at the SAPD Property Room. John Campa, an investigator with the Bexar County



        1
          The trial court determined, based on evidence presented at the hearings on Molina’s motion, that the rape kit
could not be tested because it had been destroyed. Molina does not raise any issue on appeal regarding this
determination.
District Attorney’s Office, removed the evidence bag containing the underwear from the SAPD

property room and delivered the evidence to the TDPS crime laboratory in Austin on October 20,

2009.

        Angela Tanzillo-Swarts, a DNA analyst with the TDPS crime laboratory, performed “tape

lifting” on the underwear to pick up “trace evidence” such as “loose hairs or fibers.” She did not

observe any visible trace evidence on the tape lifts. Tanzillo-Swarts followed the procedure for

preserving the tape lift, placed it inside of a manilla envelope, and sealed it. She did not subject the

tape lift to additional testing because that task would be performed by a different analyst. Tanzillo-

Swarts then examined the underwear for body fluid, including semen, by applying an alternative light

source which could make a body fluid stain visible. Tanzillo-Swarts found three stains and applied

acid phosphatase to detect semen. The AP test was negative. Tanzillo-Swarts tested one discolored

area on the underwear for blood, but that test was negative. She also performed a water extraction

on a stain which had reacted to the alternative light source in order to extract any cellular material.

Tanzillo-Swarts examined the extracted material using a microscope but she did not find the

presence of sperm which would have been a positive indicator for semen. Her search was negative.

After completing the testing, Tanzillo-Swarts returned the evidence to its original packaging,

resealed it, and returned it to the evidence vault. She did not perform any further testing on the

underwear and she did not see the evidence again after placing it in the evidence vault. The TDPS

crime laboratory placed the package containing the underwear in the mail for return to the Bexar

County District Attorney’s Office.

        Rebecca Vasquez, a forensic scientist employed by the TDPS crime laboratory, was assigned

the task of analyzing the tape lift collected by Tanzillo-Swarts. She discovered that the evidence had

been mailed back to the Bexar County District Attorney’s Office. After waiting for over a month
for the evidence to be returned for the trace evidence analysis, Vasquez contacted the District

Attorney’s Office by telephone and Russell Brandau advised her that they were looking for evidence.

Vasquez made an inquiry with the U.S. Postal Service but the item could not be traced because more

than sixty days had elapsed since it was placed in the mail. The trial court concluded that the

package had been lost in the mail and additional testing on the trace evidence could not be

performed. Additionally, the court determined that no biological evidence, including semen, had

been found which could be tested for comparison with Molina’s DNA. The trial court subsequently

denied Molina’s motion for further DNA testing.

                             POST-CONVICTION DNA TESTING

       In his sole point of error, Molina asserts that the State, acting through the TDPS crime lab,

failed to comply with the trial court’s order for DNA testing. Molina requests that we order the State

and the TDPS crime lab to comply with the order. He additionally argues that the trial court erred

by not requiring additional testing on the evidence.

                                              Mootness

       Neither party has addressed whether the loss of the evidence Molina seeks to have tested

renders the appeal moot. We raise the issue sua sponte because it is a matter of jurisdiction. See

Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442

(Tex. 1998)(stating that the constitutional roots of justiciability doctrines such as ripeness, as well

as standing and mootness, lie in the prohibition on advisory opinions, which in turn stem from the

separation of powers doctrine set forth in Article 2, Section 1 of the Texas Constitution); Texas

Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 444 (Tex. 1993)(explaining

that the Texas Supreme Court has construed the separation of powers article to prohibit courts from

issuing advisory opinions because such is the function of the executive rather than the judicial
department). Courts do not have jurisdiction to provide advisory opinions, or to decide cases on

hypothetical or contingent facts. Valley Baptist Medical Center v. Gonzalez, 33 S.W.3d 821, 822

(Tex. 2000); General Land Office of the State of Texas v. OXY U.S.A., Inc., 789 S.W.2d 569, 570

(Tex. 1990); Beltran v. Beltran, 324 S.W.3d 107, 110 (Tex.App.--El Paso 2010, no pet.). The

mootness doctrine precludes a court from rendering an advisory opinion. Camarena v. Texas

Employment Commission, 754 S.W.2d 149, 151 (Tex. 1988); Beltran, 324 S.W.3d at 110. A case

is rendered moot when: (1) it appears that a party seeks to obtain a judgment upon some

controversy, when in reality none exists; or (2) a party seeks a judgment upon some matter which

cannot have a practical legal effect upon a then existing controversy. Beltran, 324 S.W.3d at 110.

That is to say, when an actual controversy no longer exists between the parties, “the decision of an

appellate court would be a mere academic exercise.” Beltran, 324 S.W.3d at 110, quoting Hanna

v. Godwin, 876 S.W.2d 454, 457 (Tex.App.--El Paso 1994, no writ).

        The evidence Molina seeks to have tested is no longer in the State’s possession and the

record supports the trial court’s determination that the evidence is lost in the U.S. mail. Assuming

for the sake of argument that we agree with Molina and rule in his favor, our judgment requiring that

the evidence be tested could not be enforced. As such, it could not have a practical legal effect upon

the controversy and it would be contingent on the evidence being found.

        There are two exceptions to the mootness doctrine. The first exception occurs when a claim

is “capable of repetition, yet evading review.” Pharris v. State, 165 S.W.3d 681, 687-88

(Tex.Crim.App. 2005). This exception is limited to the situation where: (1) the challenged action

was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be subjected to the same action

again. Id. at 688; Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). This exception does not apply
to this appeal.

        The second exception is referred to as the collateral consequences exception. General Land

Office, 789 S.W.2d at 571. The collateral consequences exception applies to severely prejudicial

events, the effects of which continue to stigmatize helpless or hated individuals long after the

unconstitutional judgment has ceased to operate. Id.; In re R.M., 234 S.W.3d 103, 104-05

(Tex.App.--El Paso 2007, no pet.). The Texas Supreme Court applied the collateral consequences

exception in Carrillo v. State, 480 S.W.2d 612, 616-17 (Tex. 1972) where a juvenile was discharged

from probation while his case was on appeal. The Court held that the appeal was not moot because

juvenile adjudications carry deleterious collateral effects and legal consequences including the

stigma attached to being adjudged a juvenile delinquent. Id. at 617. The Supreme Court based its

decision on the premise that “a minor should have the right to clear himself by appeal” and this right

should not disappear when the sentence given is so short that it expires before the appellate process

is completed. Id. When faced with a similar issue in In re R.M., this Court distinguished Carrillo

and did not apply the collateral consequences exception in a case where the juvenile did not appeal

the adjudication order and only challenged the order modifying disposition. In re R.M., 234 S.W.3d

at 105. We reasoned that our resolution of the issues presented on appeal could not have any impact

on the collateral effects and legal consequences of being adjudged a juvenile delinquent. Id.

        In the instant case, our judgment requiring that the lost evidence be subjected to additional

testing would have no effect on Molina’s underlying conviction unless the evidence is someday

found and subjected to testing. Even assuming Molina is entitled to reversal of the trial court’s order

denying additional DNA testing, our decision would not have the effect of clearing Molina’s name

nor would it have any impact on the collateral effects and legal consequences of his underlying

conviction. We conclude that the collateral consequences exception does not apply in this case.
Accordingly, the appeal is dismissed as moot.


November 9, 2011
                                                  ANN CRAWFORD McCLURE, Chief Justice

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

(Do Not Publish)
