                                   NO. 07-08-0190-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                               NOVEMBER 17, 2009
                         ______________________________

                                ENEDELIA A. SEPEDA,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2003-402,461; HON. BRAD UNDERWOOD, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Appellant Enedelia A. Sepeda was convicted of murder upon her plea of guilty and

confession in support thereof. Pursuant to a plea bargain, the trial court sentenced her to

forty years imprisonment. On November 27, 2007, she filed a motion for post-conviction

DNA testing. Without a hearing but after reviewing the affidavits and reports attached to
appellant’s motion, the trial court denied the request. Appellant appeals from that denial,

and we affirm the trial court’s decision.1

         In her motion, appellant sought to have fingernail scrapings from the deceased’s

body and the posts of two gold earrings recovered from the floor of the deceased’s

residence subjected to DNA testing on the basis that it had not previously been subjected

to such tests. Appellant argues that 1) art. 64.02 of the Code of Criminal Procedure denies

her due process rights, 2) the trial court abused its discretion in denying the motion when

the State failed to file a response and she was held to a higher standard of proof than

required by the statute, and 3) the trial court abused its discretion in failing to conduct a

hearing on the motion when the State failed to file a response.

         Issue 1 - Due Process

         Appellant argues that she was denied due process by the trial court overruling her

motion without first requiring the State to file a response. This argument is based on art.

64.02(a) of the Code of Criminal Procedure which provides that, on receipt of the motion,

the court is to require the attorney representing the State, not later than the 60th day after

the motion is served, to either deliver the evidence to the court along with a description of

the condition of the evidence or explain in writing why the State cannot deliver the

evidence. TEX . CODE CRIM . PROC . ANN . art. 64.02(a)(2) (Vernon Supp. 2009). The State

did not file a response in this instance; nor did the trial court enter an order requiring it to

do so. We nonetheless overrule the issue.

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         That appellant pled guilty to and adm itted com m itting the crim e does not prevent her from requesting
DNA testing. T EX . C OD E C R IM . P R O C . A N N . art. 64.03(b) (Vernon Supp. 2009). Given that the sam e statute
requires the identity of the culprit to be at issue in the case, id. art. 64.03(a)(1)(B) and that voluntarily
confessing to com m itting the crim e logically vitiates any reasonable doubt about who did it, one is left to
wonder about the purpose underlying art. 64.03(b).

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         First, we do not find in the record where appellant made this complaint to the trial

court. Even constitutional claims of due process may be waived. Adams v. State, 132

S.W.3d 701, 701-02 (Tex. App.–Amarillo 2004, no pet.). Because appellant failed to raise

this matter below, she waived it. Shannon v. State, 116 S.W.3d 52, 54-55 (Tex. Crim. App.

2003).

         Even if not waived, the statute allows the trial court to proceed after the response

period expires and regardless of whether the State filed a response. Id. art. 64.02(b); see

also Whitaker v. State, 160 S.W.3d 5, 9 (Tex. Crim. App. 2004) (stating that the trial court

may make findings for or against the movant regardless of whether a response has been

filed by the State). So, the very same procedure that purportedly creates the due process

right invoked by appellant actually gives her no such right.

         Nor can we see how appellant was harmed by any failure of the State to respond

since the trial court made findings that the DNA evidence still existed, was in a condition

that would make DNA testing possible, and had been subjected to a chain of custody

sufficient to establish that it had not been substituted, tampered with, replaced, or altered

in any material respect. These findings not only favor appellant but also address the

matters to which the State would have been required to respond.

         Finally, we reject the notion that the State’s failure to respond ipso facto entitles

appellant to testing. Contrary to appellant’s analogy, that is not what happens in summary

judgment practice; there, the movant must still show he is entitled to judgment as a matter

of law. In re Marriage of Noonan, 280 S.W.3d 339, 342 (Tex. App.–Amarillo 2008, pet.

denied).



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       Issue 2 - Abuse of Discretion

       Appellant also contends that the trial court abused its discretion in denying the

motion without requiring the State to respond as statutorily prescribed. This complaint was

also waived since it was not raised before the trial court. Shannon v. State, 116 S.W.3d

at 54-55.

       Yet, even if it was not waived, it still lacks merit. To support her argument, she relies

upon Alvarado v. State, No. 2-02-451-CR, 2003 Tex. App. LEXIS 7596 (Tex. App.–Fort

Worth August 28, 2003, no pet.) (not designated for publication). There, unlike here, the

State sent an unsworn letter to the court in which it stated that the evidence was

unavailable. The court of appeals found this explanation to be inadequate to support the

trial court’s denial of the motion. Id. at *7. Here, the trial court denied the motion because

appellant failed to establish a reasonable probability that she would not have been

convicted at trial had the DNA results been available. See TEX . CODE CRIM . PROC . ANN . art.

64.03(a)(2)(A) (Vernon Supp. 2009) (stating that the convicting court may order forensic

DNA testing only if the convicted person establishes by a preponderance of the evidence

that the person would not have been convicted if exculpatory results had been obtained

through DNA testing). Thus, our situation differs in one important aspect from that in

Alvarado; our trial court addressed the merits of the request.

       Appellant further contends that she was held to a higher standard of review than

was proper. This contention is based on the trial court’s statement that a “negative test

result from the examination of the [v]ictim’s fingernail scrapings would not conclusively

show that the Defendant was not the individual who committed the act.” (Emphasis



                                               4
added). Appellant notes that under the statute, she is only required to prove by a

“preponderance of the evidence” that she would not have been convicted. Yet, in the

same conclusion referenced by appellant, the trial court also wrote that appellant “can not

sustain her burden of showing a reasonable probability that she would not have been

convicted at trial had she had exculpatory DNA results.” That is the correct standard. See

Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Moreover, it was reiterated

elsewhere in the trial court’s conclusions of law. We therefore do not believe appellant was

held to a higher standard than allowed.

       Moreover, our own review of the record supports the trial court’s conclusion that

there existed much less than a reasonable probability that testing would have resulted in

a different outcome. Even if the evidence was favorable to appellant (meaning that

appellant’s DNA was not obtained in the fingernail scrapings), that alone falls far short of

creating a reasonable inference that someone else killed the decedent, given the

circumstances here. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008),

cert. denied, ___ U.S. ___, 129 S.Ct. 54, 172 L.Ed.2d 55 (2008) (stating that the mere

presence of another person’s DNA at the crime scene does not constitute affirmative

evidence of the defendant’s innocence). This is especially so given the affidavits and

reports appended to her motion as well as her own confession. So we overrule appellant’s

second issue.

       Issue 3 - Failure to Hold Hearing

       Finally, appellant complains of the trial court’s failure to hold a hearing. She asserts

she was entitled to one because the State did not file a response. Because this issue was



                                              5
not raised below, it too was waived. Moreover, the trial court need not hold a hearing until

after examining the results of forensic testing, TEX . CODE CRIM . PROC . ANN . art. 64.04

(Vernon 2006).    Nor is it required to order testing until the movant establishes the

exculpatory nature of the test result. Id. art. 64.03(a)(2)(A) (Vernon Supp. 2009); see also

Whitaker v. State, 160 S.W.3d at 8-9 (stating that Chapter 64.03 does not require a

hearing of any sort). Because appellant did not clear the first hurdle, she cannot complain

about being deprived of the chance to reach the second.

       Accordingly, the order of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice



Publish.




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