Dominguez, Daniel Vasquez
PD-0346-15
| Tex. App. | Sep 16, 2015
Case Information

*1

346-15

PD-0346-15

ORIGINAL

In The Court of Criminal Appeals Austin, Texas

Receives

RECEIVED IN COURT OF CRIGINAL APPEALS SEP 162015

The State of Texas

Appeal No. H-19-00349-CR From The H4TH District Court of Taylor County Trial Court Case No. 136142B

Petition for Discretionary Review

Petitioner David Vasyuer Dominguer

FILED IN

COURT OF CRIMINAL APPEALS SEP 16255

Abel Acosta, Clerk

Requesting Oral

Argument

Respectfully Submitted,

Daniel Vasyuer Dominguer

Petitioner - Prose TBCS-ID. 1355464 Natal Unit 4055 Squr 341 Amarillo, Texas 74107

*2

Identity of The Parties

Daniel Vasquez Dominguez Politicner - Prose 1865-28.1555466 David Unnilt 4055 Spur 541 Annarillo, Texas 74602

Alex B. Eyssen, Pule Appointed Attorney for, Art. 64 Post Office Box 5521 902 Mulberry Mollene, Texas 74601

Jelle E. Johnson Original, Total Appointed Attorney P.O. Box 1136

Mollene, Texas 74604

Jeffery B. Gultoredh 4542 Loog 522, Suite 102 Mollene, Tx. 74602 Retained Attorney for Rwoction / The 104 Th District Judy, Honorable, Lee Humillton Taylor County Courthouse 300 Oak Street Mollene, Texas 74602

James Eidson Criminal District Attorney Taylor County Courthouse 300 Oak Street Mollene, Texas 74602

Joel Wilkes Falson, Divilian Assistant District Attorney 300 Oak Street Mollene, Texas 74602

Pstrieiu Dyer Assistant District Attorney Taylor County Pluia 400 Oak Street, Suite 100 Mollene, Texas 74602

*3

Identity of the Parties

The Court of Appetits Eleventh District of Texas 180 West Main St., Suite 300 Earlland, Texas 11449 Justices of the Court of Appetits Panel consisting: Jim R. Wright Chief Justice Mike Wilson Justice John M. Bailey Justice

Memorandum Opinion Hamlet Down Dr: February 21, 2015, Appeal No. H-12-00344-08 By: Justice, Bailey, S. Opinion of the Court, (Affirmed)

*4 Table of Contents Pump: Identity of the Parties 1,11 Table of Contents 111 Index of Authorities W , V Statement Reporting Oral Argument Statement of the Case Statement of Procedural History Question One for Review Question Two for Review Question Three for Review 13 - 15 Anyements. 15

Prayer for Relief Appendix (Exhibits Included Superiority) Exhibit 1 (Attorneys letter) Exhibit 2 (Exculpatory Evidence) Exhibit *3 (Judge's Order)

*5

Index of Authorities

Texts Count of Appents cases:

deusis v. State, 8715 S.M. 324222 ad 452 of 8 (Texts-Dates 1988) Grmy v. State, 645 M .32855,951 (Tex. App. Noce 2002, no p. 6) In the Midwest Morton, Count of Appents Third Dish. Austin, 526 S.M. 32654 , (2010 Tex. App. Lexis 95) Jeffery v. State, 4055 M .22716,719 (Tex. App. Dallas 1985, no p. 6) Murphy v. State, 115 S.M. 32846 (Tex. App. Dallas 2005) Smith v. State, No. 65-82-01411-CA, 2004 Mt. 215661 - 2004 Tex. App. Lexis 1043 (Tex. App. Dallas February 5, 2005) Stone v. State, 825 S.M. 32575 (Tex. App. Austin 1982, p. 6. c. 82)

Texts Count of Criminal Appents cases:

Ealin v. State, 452 S.M. 22404,402 (Tex. Grim App 1887) Chesis v. State, 922 S.M. 224126 (Tex. Grim App. 1986) Exparte Gutherree, 537 S.M. 32 ad 892 (2011 Tex. Grim: App. Lexis 545 ad 99 8 9 ) Exparte Morton, (2011 Tex. Grim. App. Unp. 12, Lexis 719) Houghton v. State, 865 M .32663 ad 452 , En 20125,26 (Tex. Grim App 2002) Harnandez v. State, 726 S.M. 2255 (Tex. Grim. App. 1986) Jackson v. State, 8745 M .22768,711 (Tex. Grim. App. 1984) Huttener v. State, 75 S.M. 32427 ad 452 En 25 (Tex. Grim. App 2002) Routier v. State, 215 S.M. 32241,291 (Tex. Grim. App. 2002) Smith v. State, 165 S.M. 32341 ad 365 (Tex. Grim. App. 2005) Thomas v. State, 8415 M .22599 , ad 401 (Tex. Grim. App. 1892)

Inte

*6 United States Supreme Cases: Anders v. California, 346 U.S. 759, 815.C1.1946,12 182.22445 (1947) Brady v. Maryland, 375 U.S. 85 (1943) Stridland v. Washington, 466 U.S. 669,687,694 1045.21. 2052.30182.22614 (1944) United States v. Doxley, 475 U.S. 667,682 1055.21. 3315, 87182.22441 (1995)

Texas Constitution, Small Codes, and Statutes:

| Tex. Const. Art. 2 sec. 10 | 7,9 | | :--: | :--: | | Tex Code Crim. Proc. Art. 64.01(5) | 3,6,7,10,12 | | Art. 64.03 | 7,13,14 | | Art. 64.05 | 4,10,13 | | Art. 42.12 | 2 | | Tex. Small Codes - 22.04, 22.021 | 2 | | Tex. H.D. 1011 78th Ley.R.S. 2003 | 3 | | United States Constitution: | | | Fifth Annual. | 7 | | Sixth Annual. | 7,9 | | Fourthenth Annual. | 1,7,9 |

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To The Honorable Court of Criminal Appents: Comes Now, Daniel Issquer Dominguer, Paithioner as Prose, an Indigent inmate at TOCS, No. 1555944, and submits this Edition for Discretionary Review.

Statement Regarding Oral Argument Prititioner requests oral argument. This case presents several questions of law that have not been adequately addressed by the Court of appents. A patient maintains that the court of appents has not applied proper factual sufficiency should review under the Clown's review, with the presumption that the evidence presented by the State was legally sufficient, ie. Constitutlonally sufficient for the purpose of the Due Process Churge of the 14th U.S.C. Around, to deny petitioners appeal from trial courts decision.

Statement of the Case This case involves a wrongful conviction for the crime of aggravated sexual assault of a child. The victim who at the time was under age of consent, and pregnant, allegedly made a complaint that on or about February 1, 1998, the alleged crime occurred. Pattitioner was inflicted for the charges in June 15, 2000. During the alleged charges of 1998 the patitioner was serving a one-year Sentence in State 241 and was released from custodiyin 2003. Upon re- (1.)

*8 lease from confinement, PAtitioner was then arrested. In May 24, 2000 PAtitioner was arrested and charged for aggravated sexual assault with a child and indeclency. The State defense and its State Agents, ie. Moilene Police Dept. and Child Protective Services came into Sode Monarjine Conservator on May 22, 2000, filling a report in the 326 District Court of Tovfor County Texas. This report was used to enable the Court of the aliequl crime and as a result of the victims pregnancy by PAtitioner. The Texas Department of Protective Regulatory Services filed its report under cause No. 5034-58 in May 22, 2000. The State basis it unlawful conviction on mere aliequl statements. The State does not see that an under aue victim while in their custody turns out pregnant as a victim of State or Federal laws, while petitioner is being prosecuted and convicted for the same victim. Please refer to State's response brief for the Eleventh Court of Appents at page(1.5884).

Statement of Procedural History In June 13, 2000 PAtitioner was inficted for two offenses, (Ter. Penal Colls - 29.011, 29.021). On January 8, 2001 petitioner entered a plece of no-contest. Under Ter. Code Crim. Prox. Act. 42.19 the trial court ayred to suspend imposition of a sentence of guilt. PAtitioner was placed on deferred abjudication protection for (1) eight years. During the course and violation of these terms, the State filed its motion to adjudicate. During the January 8, 2001 trial, appointed attorney Mr. Self Johnson never provided petitioner with any evidence

*9 relating to the charges, ie. Complaint, statements, police reports, or any evidence the State Prosecution passed at the time of this treaty including reports that the victim was pregnant. Mr. Johnson did not make a conscientious examination of records; the evidence against the petitioner. Mr. Johnson failed to explain the appeal process. On February 19, 2004 a conviction hearing was set in open court. The Honorable Judge Lee Hamilton sentenced Pettitioner to (50) shirty years confinement in TOCS. Retained Attorney Mr. Jeffery Galboredh failed to file notice of appeal, after a plan of not quilty. Mr. Galboredh also failed to make a conscientious examination of the record and discover the evidence of the victim's pregnancy. In May 15, 2012 Pettitioner file his motions for Port-Conviction art (64.0). Pettitioner discovered that the victim while in custody of the State and while he was only prosecuted and convicted and still under the age of consent, was pregnant and due to have a child in June of 2001, and this evidence pointed at petitioner at the perpetrator. Included within his motions petitioner attached a copy of his supporting affidavit with facts of what evidence he wanted tested and a copy of the discovered evidence filled in the 326th District Court, Tudor County, cume 5054 -ex, Burley the time of petitioners tried. On May 19, 2012, tried court appointed Mr. Alex Eyysen to assist in Port-Conviction Dish testing pussuent to act (64.01.0). Mr. Eyysen filed a motion to withdraw for personal reasons and deceived petitioner in his representation. The tried Court allowed Mr. Eyysen to withdraw from the cury, and he abandoned unenhanced remedies, for an appeal, pussuent to Anders Dridphilding Phe Precess.

*10 The trial court did not appoint new counsel after allowing Mr. Eysum to withdraw for personal reasons. On October 15, 2004 the trial court issued an order with findings short:

  • (1) The States case was based entirely on witness statements, and;
  • (2) No physical evidence was still for law enforcement, and;
  • (3) No physical evidence was in possession of the State during the trial of the citizens. (The State was in possession of preyment victim and records concerning her preyment). The trial court determined there were no reasonable grounds and declined order for DNA testing and thus new counsel should not be appointed for an appeal. Upon receipt of the trial court's findings, the Eleventh Court of Appeals reinstated Pibitions's posse appeal, after abatement to determine counsel for appeal. Pibitions's request was overrated by the trial court. On April 18, 2005 Pibitions filed a prose appeal raising three issues. The Court of Appeal in its opinion stated that it lacked jurisdiction on issues that entailed to the validity of the studies. nyed conviction or outside the scope of chapter (4.01-4.1005 The Eleventh District Court of Appeals handed its judgement and opinion, affirming the order of the trial court on February 27,2005.

Questions For Review

Question One For Review:

Whether the 11th Court of Appeals acted in application of correct factual sublifency standard review, where the trial Court showed its discretion in not providing additional adequate legal assistance of counsel for procedural requirements, required in his post-conviction for forensic DNA testing and his appeal process,

*11

Under statuses of the Tex. Cole Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2005).

Argument

Pehitioner contends inter all, the legislature, Tex. M.B. 1811, 38th Leap. P.S. (2003), has provided indi gant petitioners the right to appeal the trial court's decision on motions for post-conviction DNA testing see Plurton v. State, MI 5.11.3d 946 (Tex. App. Dadas 2003). Tex. Cole Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2003). This statutory right includes representation by appointed counsel on appeal of the ruling see Group v. State, MI 5.11.3d 935, 957 (Tex. App. Moo 2003, no pat.). The procedures for post-conviction DNA testing was authorized by legislature in the pursuit of justice. Because art. 64.05, 957 does not differentiate between the trial and appellate phases the court has held that an indi gant person has statutory right to assist once of counsel on appeal under (Tex. Cole Crim. Proc. Ann. art. 64). The statute does not define reasonable grounds, but Courtsof Appeals have developed some guiding principles, see Expecte (unlicres), 557 S.M. 3d 495 at 942 , (2011 Tex. Crim. App. Lexis 545 at 957 ). Though a convicted person need not prove entitlement or a prime (acia of it) to DNA testing as a precondition for obtaining appointed counsel, whether reasonable grounds exist for testing necessarily turns on what is required for testing Dl. 1200. Basic requirements are that biological evidence exists and before appointing an attorney, the trial judge needs reasonable grounds to believe that a favourable forensic test is a visible, fair, and rational possibility and such a test could plausibly show that the inmate would not have been convicted. Pelitioner can show the Court that by ordering testing he can establish, by a preponderance of the evidence,

*12 "John wale eurral" that he would not have been convicted if execut- putory DNA test results are obtained. This is the type of case in which executpatory DNA results would make a difference, see buterer v. State 35 s.w. 3d 497 at 439 sW 23 (Tex.Clim.Apg. 2002); Smith v. State, 165 s.w. 3d 361 at 363 (Tex.Clim. App. 2005) Proving that swilln established by a preponderance of the evidence that he would not have been prosecuted or convicted if executpatory results had been obtained through DNA testing. Smith v. State No. 05-02-01411-88, 3004 WL 313661, 2004 Tex. App. lexis 1049 (Tex. App.-Dallas February 5, 2004) not desisnated for publication). Proving that a convicted ge- son must prove that had results of the DNA test been available at trial, there is a 51 % chance that he would not have been convicted. Id at 362, Under Chapter 61, 010, the statute requires that the swan affidavit contains a statement of facts in support of the motion, but it does not specify what facts must be included. See Code of Criminal Procedure Act. 64, 010. A 3 wordote DNA test result must be the sort of evidence that would affirmately "cunt should" upon the validity of the inmates consistion, otherwise DNA testing would simply

*13 gobitioner's conviction and trial. This evidence was withheld under exculpatory through no back of the gebitioner. See Tex. Cole Crim. Proc. Art. 640 (b)(1)(b)(b) involving the no-fast provision of Subsection (b)(1)(b). Routiers, State, 215 sxl. 5 d 244, 249 (Tex. Crim. App. 2009; Exporte Mouton, 2011 Tex. Crim. Unpub. Lexis 778), In Re. Michael Mouton, Court of Appeals Third Dist., Austin 326 S. N. 5d 634; 2010 Tex App. Lexis 95). Third, it an under ayed girl who is the same victim in the petitioners conviction, who turns out pregnant while he is being convicted doesn't cast doubt upon the petitioner's conviction, while she is still under the age of consent and monitored by custody of State heynets, then the laws of this State are lawless and are a violation of the Texas Constitution Art. I see 10 and 5th, 6th, 14th Amendments of the United States Constitution. The State Prosecution, and State Agents, ie. Moliere Police Dept. (head Detective, David Moliere, and Cynthia Astory), Child Protective Services (social workers, Norman Campbell and Larry Dubey) used the victim's pregnancy as evidence to prosecute and convert the gebitioner, the above under Art. 615 s 240 (b) the burden has been met by the exculpatory evidence that was presented in petitioner's motions for DNB testing as [Exhibit 2]. Where the Texas Department of Protective and Regulatory Services presented this evidence report accruing gebitioner as the perpetrator to enable the Court in its review and the State Agents involved, ie. (State Prosecution). The evidence that interdates to this exculpatory evidence

*14 from petitioner's care file record no. 15634-8 are the witness subparna list filed November 14, 2000. Where everyone was summoned before the 1st day of January, 2001, "except" Mrs. Norman Combell's, the Social Worker who's signposture is on the exculpatory evidence filled in the 526th District Court of Taylor County Press. If the Court of Criminal Appeals will review this report [Exhibit 3] at (pages. 1-5) it will find that this report accuses petitioner as having raged the victim four times and as a result she gets impregnated by petitioner. Peace refer to p p 2 3 − 5.2 (evaluation of compliance) from this report, by Mrs. B. S. Plowman, Mornin Combell and herer, Dudley. This report does not state that the victim was pregnant by some other perpetrator or that they had arrested onlyone for this crime of the pregnancy. In other words the state and its Agents committed an un- lowful act by willi.ity the evidence of the victim's pregnancy to compect the petitioner of his Term. 3 2001 total. Petitioner invokes the Court of Criminal Appeals jurisdiction on a factual sufficienter standard review pursuant to Clawls v. State, 472 S.W. 241124 (Tex. Crim. App. 1444). Court of Appeals did not properly apply correct standard review of the evidence in the Petitioner's case. The Court of Criminal Appeals while not permitted to conduct a 8 a now factual sufficienter review can be called upon to determine whether the Court of Appeals applied the correct standard of review and considered all of the evidence in the record that is relevant in the case. Cain v. State, 459 S.W. 241104, (2.)

*15 was (Tex. Crim. App. 1447). A review of factual sublisionery of the evidence on the elements of a criminal offence differs from a review of the factual sublisionery of the evidence on an affirmative defense in at least two significant ways: Best, it involves issues of federal constitutional dimension and constitutional laws; Second, it involves a much greater burden of proof at trial, Lewis v. State, 876 S.W. 32459 at 452 EW* (Tex. App. Dallas, 1949). The Court of Appeals did not apply proper review because of the trial shape of additional's post-conviction for (arts. 69.01-69.05) the trial judge appoints an attorney (Please refer to Exhibit 2, for Judo's Order, Appointed Attorney). During an incomplete investigation of the exceptory evidence from pregnant victim and born child, counsel suddenly decides to close his law practice and states his moving out of state. He advises in a letter dated Aug. 29, 2012 of all the avenues needed in writing, in order to obtain the information (to prove additional's in no cered). The Stated that his job would shut in October and that on Friday, September 21, 2012 at 4:02 pm, the Court would determine who it would appoint as new counsel. (Please refer to Exhibit 2, for Afternoon letter). The trial Court closed its discretion when it allowed the System to withdraw from the case for personal reasons. He was allowed to abandon the case and violated additional's statutory rights to the appeal process. Tex. Court. art. I. 510 and 6" and 10" Amend. of the U.S.A Court, additionally additional seeks DNA testing from the boar child to prove his innocence, and that third party was involved (see, Ex parte Phocop, 2011 Tex. Crim. App. Dupl. leats 778).

*16 Questions For Review

Question Two for Review:

Whether the Eleventh Court of Appeals erred in the last half-dievenary standard review that appointed counsel for art. (14.01.01) provided effectively assistance when he withdrew from the case for personal reasons, and visited additional's Dive Process by failure to complete adequate investigation and to prepare and follow statute procedures for Additional's appeal pursuant to an Anders Brief, Tex. Cole Crim. Proc. Anm. art. (14.05 (Warson Supp. 2005).

Answerant

In May 15, 2014, Additional filed two motions with the trial court pursuant to Chapter 64, Tex. Cole Crim. Proc. (W) motion requesting appointment of counsel to assist in obtaining executatory evidence for a Forensic/DM testing to prove additional's innocence and that a third party was involved in this case. In the Michael Photony 526 5W. 5D 674 (3rd Dist App. Austin 2010), 2010 Tex. 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*17 In May 20, 2012 by order of the treat judge, Mr. Eysen was appointed to represent geldtione pursuant to art. 64.0103 Tex Code Cim. 700 . Never refer to attached Exhibit 3 (Order Appointing Council). Mr. Eysen failed to sell out the evidence that would affirmately cast doubt upon the validity of Peldtione's conviction. Indeed he suddenly withdraws from the case for his personal reasons, he fails to complete an adequate investigation and the proper motions with the Court that would prove geldtione's insistence, and that there was a short person involved. He failed to advise proper procedures requirements under Chapter 64 and the appeal process. Mr. Eysen failed to function in his representation as council guaranteed by the Sixth Amendment violating Peldtione's rights under the Tex. Court. Art. I see 10 and the Fourteenth Amendment to the Process and Equal Protection of the laws. (U.S.C. Amends, 6th and 14th). Striblonel v. Mashadotass, 4No 45. 604, 611-618, 644, 1045.Ct. 2052.101.Ed 21614 (14th), Jackson v. State, 271 5.14.20164, 711 (Tex. Cim. App. 14th) adopted in December v. State, 726 5.14.2053 (Tex. Cim. App. 14th). In Peldtione's case both prompt this test have been met, when appointed Council withdrew from the case for personal reasons and abandoning geldtione's rights to an appeal under art. 64.05. There is no sound treat strategy in a withdrawal from a representation for personal reasons. Striblonel, 644, 1045. Ct. at 2065. The Court of Appetion geldtione's case under Art. 64.0103 misapplied factuel sublifency: Clawls v. State, 422 5.14. 2012b at 141 (Tex. Cc. App. 14b), Clawls v. State, 676 5.14.20426 at 444 (Tex.App.-Dallas 144).(Mr. Barry C.S. concurring) The Court holds that the proper standard of review for factuel sublifency

*18 of the alarments of the offense in the one articulated by the Third Court of Appeals in Stone 4, State, 493 S.4. 2d 375 (Tex. App. Austin 1689, p. 181d, until only filled). The Court of Appeals shows all the evidence without the given of in the light room favorable to the prosecution [and] as 153 aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, Mr. Expser was deficient when he did not make proper arrangements for re-appointment of eunural nor did he like a motion to withdraw from a frivolous appeal by filling a motion to withdraws and a hotel in support of the motion, commonly known as an Arabic Brief. The purpose of Anders in Colchoccia, 244 U.S. 778, 415 S. 1446, 145.82.2d 493 (4467), is to show eounal performance a conscientious examination of the record and the appeal is so felvolous that the indignant applicant should be denied to reright to appointed eounal on appeal. See Mueghey, State, 115 S. 2d 2446, 41547 (Tex. App. Belus 2083). Whether an attorney may file a Anders brief in an appeal of a trial court's ruling on a post-conviction motion for DNB testing appears to be an issue of first impression in this state. Therefore the Court of Appeals did not address whether Anders is applicable to the appeal before the Court, because appointed eounal is not allowed to make frivolous arguments in an appeal from a criminal conviction. See Jaffrey, State, 403 S.4. 2d 714, 719 (Tex. App. Belus 1945, no p. 1). Analysis of the relevant statute reveals there are three stages to a motion for post-conviction DNB testing. In the motion itself and whether it complies with article 64.01.20 is whether the court's determination of whether

*19

there is any biological evidence that Eshoudd be tested, and whether there is a cyanide probability the evidence would prove the pett-1 ioner's innocence (Expont Photon, 2010 Tex. Cinn. Unpub. levis 779); Boudter 1. Shute, 1125.11. 215542005 Tex. Cinn. App levis 92 (Tex. Cinn. App. 2005. Tex. Calc Cinn. Pcce Ann ad. 44.058403014) (would more likely have caused the you to bethar a reasonable doubt as to the inrestial guilt and decline to canvild. Pett-1ioner involves the Court of Eirnird Appucl to address whether the Court of Appucl applied proper method suthlishery review under. Chavis 1. Shute, 1125.11.21121 (Trice. App 2014

Questions for Review

Question Three for Review: Whether the Devontin District Court of Appucl, eced in the factual sublittionery review that excmputory evidence is favorable to the pett-1ioner and was supposed from his treat in vildation of Drabay Puberial and was through to-twult of the Pett-1ioner. Pett-1ioner filth his motion on the evidence pursuant to Tex.Calc Cinn. Pcce. Ann. ad. 44.01-64.05 (Wernan Supp. 2005) seeking Dibiterting from aliequl vildon and her born biological child under these structures. Pett-1ioner seale a Chavis review of all the evidence.

Argument

Pett-1ioner's case involves newly discovered evidence that was suppresed from his trial in vildation of Drabay. Phonfomd 373 U.S. 85 (4463), that is so contrary to the laws and to the over wholming weight of the evidence as to be manifesting

*20 unjust, it shades the conscience, and clearly demonstrates bias from the State and State Reports. The State Proceation and its State Reports i.e. (Abolime Police Dept.), (Child Protection Services) which the evidence of the alleyal victim's prequenery to prosecute and con- vict Politiones. Please refer to (Exhibit 2) (exculpatory evidence report). Politiones contents' inter alia that the exculpatory evidence from case (no. 5034-CE) involving the wother ayed viction all trematively has weight as to whether there is a third person involved and whether politiones would have been convicted, because the evidence is favorable to basis of the validity of the chuthanyd conviction in politiones's case. See, Tex. Case (iim. Prac. act. 64.152(a)(1)(A), United States v. Deuberg, 475 U.S. 661,672, 105 S.C. 3315, 11 L.E. 21491 (1445). The Surgeon Court expond ed the definition of favorable evidence to include both ex- culpatory evidence and inpeachment evidence, because such evidence is favorable to the accused, so short, it disclosed and used effectively to many make the difference between conviction and ayultant, Deuberg, 475 U.S. at 6116,105 S.C. at 3310. Politiones contents that the court of appeals employed an improper standard of review of a potential Deubergistion, by rejecting the evidence where the alleyal victim was prequanent at the time of Politiones's trial and that he was being prosecuted and convicted for sexual assault charges on this under ayed viction. Humphons, State, 16 S. U.S.A. 5 d. 603 at 612 (543-2445) (Tex. (iim. App. 2002). The evidence in the 4 re- tions case (no. 5034-CE) is material and there is a reasonable probability that such the evidence been disclosed to the

*21

Become, the result of the proceeding would have been different. It is clear that with the evidence in [casible 5034-ce ] the State and Agents know the victim was pregnant and convicted additional for the victim's pregnancy. Thomas J. State, 841.5 .19.2d 3rd, at 401 -Tex. Cim. App. 1442, Experts Mortars, 201 Tex. Cim App. Unpublished, 773 U.S. at 91-79, 23 S.Ct. at 1191.

Prayer for Relief

Pititioner group that this Honorable Court grant his addition for disceationary review that this course be set for submission before this Court, and after submission of the evidence this court will reverse the judgement of the Court of A agents and remand the case to the trial court for consideration of our capital or examination.

Daniel Vaxguen Doming

Certificate of Service

I having certilng that a true copy of pititioners addition for disceationary review has been plent in the U.S. Potin Service Instituts, mail on August 28, 2015, to the Court of Criminal Apeats of Texas, P.O. Box 12889, Capico Station, Austin, Texas 79111. Slagel on 3-26-15.

*22

Ironate's Unsworn Destruction

My name is Daniel Vauquer Dominguer, my date of birth is July 11, 1947, and my inmate identifying number is 11559444, I am presently incarcerated in the West Unit in Amarillo, Potter County, Texas 74187. I declare under penalty of paying that the foresging Edition for Discretionary Review, with attached exhibits 1-5 are all true and correct.

Executed on the 8to day of August, 2015.

*23

Opinion filed February 27, 2015

In The

(Fleventh Court of &ppeals

No. 11-12-00349-CR

DANIEL VASQUEZ DOMINGUEZ, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 13674-B

MEMORANDUM OPINION

Daniel Vasquez Dominguez appeals the trial court's order denying his motion for DNA testing of evidence related to his conviction for aggravated sexual assault of a child. Because we conclude that the trial court did not err by denying the motion, we affirm.

Background Facts

Appellant was indicted in 2000 for the offenses of aggravated sexual assault of a child and indecency with a child. On January 8, 2001, he entered a plea of no

*24 contest to the offense of aggravated sexual assault of a child. Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt and placed Appellant on community supervision for eight years. The State subsequently filed a motion to adjudicate. The trial court found that Appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and sentenced him to confinement for thirty years. The sentence was imposed in open court on February 10, 2006. Appellant attempted to file a direct appeal from the judgment adjudicating guilt, but we dismissed the appeal for want of jurisdiction because the appeal was not timely filed.

On May 15, 2012, Appellant filed a pro se motion in the trial court for postconviction forensic testing. The trial court appointed counsel for Appellant in connection with the motion for postconviction forensic testing. Appointed counsel subsequently filed a motion to withdraw that the trial court granted. Appellant then filed this appeal. Upon our receipt of Appellant's pro se notice of appeal, we entered an order abating the appeal that required the trial court to make various findings. Pursuant to our abatement order, the trial court made the following findings:

  1. On July 28, 2000, the trial court determined that the Appellant was indigent.

  2. On February 10, 2006, the trial court revoked Appellant's community supervision, convicted him, and sentenced him to 30 years in prison. The Appellant has remained incarcerated since that time.

  3. The trial court has received no information indicating any change in Appellant's financial circumstances.

  4. Therefore, the trial court determines that Appellant is still indigent.

*25

  1. On May 30, 2012, the trial court appointed Mr. Alex Eyssen to represent Appellant in obtaining DNA testing pursuant to Article 64.01(c), Texas Code of Criminal Procedure.
  2. On December 19, 2012, the trial court[] allowed Mr. Eyssen to withdraw because he was closing his law practice and leaving the [S]tate of Texas.
  3. Appellant is not currently represented by counsel.
  4. Appellant's attorney did not abandon the appeal; he was allowed to withdraw by the trial court.
  5. On October 31, 2012, the trial court issued an order finding that: ---The State's (criminal) case was based entirely on witness statements, and ---No physical evidence was seized by law enforcement, and ---No physical evidence was in possession of the State during the trial of the offense.
  6. In the October 31, 2012[] order, the trial court also found that the Appellant was not entitled to DNA testing; and, the trial court declined to order any DNA testing.
  7. There are no reasonable grounds for the Appellant to file a motion for forensic DNA testing.
  8. New counsel should not be appointed to represent the Appellant on appeal.

Upon receipt of the trial court's findings, we reinstated this appeal.

Analysis

Appellant presents three issues on appeal. In his first issue, Appellant complains of the "denial of assistance of counsel." In support of this issue, he alleges that his appointed counsel was ineffective "assisting in the investigation of

*26 evidence filed in another court." Specifically, he contends that counsel did not thoroughly investigate the evidence regarding his victim's "pregnancy" case filed in the 326th District Court of Taylor County. In his second issue, he complains of "violations of due process," "ineffective assistance of counsel," and "violation of equal protection of the law." In support of his second issue, he contends that trial counsel was ineffective for failing to present evidence from the 326th District Court. In his third issue, Appellant complains of the "denial of forensic, DNA testing hearing by Brady violations of exculpatory evidence related and filed in the 326th District Court."

This appeal was brought under Chapter 64 of the Code of Criminal Procedure. This chapter authorizes DNA testing in cases where the applicant meets the relevant requirements. Tex. Code Crim. Proc. Ann. art. 64.03 (West Supp. 2014). Chapter 64 also gives appellate courts jurisdiction to review an order by a trial court denying a request for postconviction DNA testing for cases in which the defendant was not given the death penalty. Id. art. 64.05 (West 2006). However, in an appeal from the denial of a request for DNA testing, we may not consider any claims that fall outside the scope of Chapter 64. In re Garcia, 363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.). "Chapter 64 is not an invitation to review every potential error in the underlying trial proceedings; instead, it is simply a procedural vehicle for obtaining evidence 'which might then be used in a state or federal habeas proceeding.'" Id. (quoting Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005)).

A trial court is only required to order DNA testing under Chapter 64 if the relevant statutory requirements are met. Crim. Proc. art. 64.03(a). As noted above, the trial court based its order denying Appellant's request for DNA testing

The 326th District Court is a "family district court" that by statute "has primary responsibility for cases involving family law matters." TEX. GOV'T CODE ANN. §§ 24.601,24. 634 (West 2004).

*27 on the fact that the State's criminal case against Appellant was based entirely on witness statements, that no physical evidence was seized by law enforcement, and that no physical evidence was in possession of the State during the trial of the offense.

A convicting court may base its decision regarding a Chapter 64 claim on the sufficiency of the State's written explanation. Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd). In an appeal of a trial court's decision regarding a Chapter 64 claim, reviewing courts "defer to the trial court's determination of historical facts, and its application of law to the facts if it turns on credibility and demeanor, and review de novo applications of law to the undisputed facts." Id. Under this standard, reviewing courts "defer to a trial court's finding as to whether the claimed DNA evidence exists and is in a condition to be tested." Id. The clerk's record contains a letter from an assistant district attorney to Appellant's counsel advising him that Appellant's criminal case "was based entirely on witness statements. There was no physical evidence of any kind taken by the police."2 There is also a letter in the clerk's record from Lieutenant David Atkins of the Taylor County Sheriff's Office addressed to the trial court that confirms this same information. In light of the standard of review governing this case and based on the record, we conclude that the evidence is sufficient to support the trial court's determination that no DNA evidence exists.

The bulk of Appellant's claims on appeal focus on his efforts to obtain evidence from another proceeding. By its express terms, Chapter 64 only applies to the testing of evidence "that was secured in relation to the offense that is the basis of the challenged conviction." Crim. Proc. art. 64.01(b). Accordingly, Appellant's claims seeking to obtain evidence from another proceeding are beyond

2This letter also informs Appellant's counsel that the file in the 326th District Court from which Appellant sought evidence is a "closed and sealed file."

*28 the scope of Chapter 64, and the trial court did not err in denying Appellant's request to test the evidence from the family court proceeding. Furthermore, Appellant's claims of ineffective assistance of counsel related to obtaining evidence from the proceeding must also fail because the requested evidence was beyond the scope of Chapter 64.

Regarding Appellant's request for the appointment of new counsel, Chapter 64 specifies that " [ t ] he convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent." CRIM. PROC. art. 64.01(c). The trial court initially appointed counsel for Appellant, but subsequently determined that " [ t ] here are no reasonable grounds for the Appellant to file a motion for forensic DNA testing." Based upon this determination, the trial court concluded that it was not obligated to appoint new counsel on appeal. In this case, the trial court had evidence that no biological evidence existed that could be tested. That evidence provided sufficient justification for the trial court to determine that there were no reasonable grounds for the Chapter 64 motion to be filed. See Blake v. State, 208 S.W.3d 693, 695 (Tex. App.—Texarkana 2006, no pet.). Accordingly, we cannot conclude that the trial court erred by failing to grant Appellant's request for the appointment of new counsel. See Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (stating that courts have found that reasonable grounds are not present if no evidence exists or if it has been destroyed).

In his brief, Appellant additionally challenges his original conviction. Chapter 64 does not confer jurisdiction upon this court to entertain collateral attacks on the trial court's judgment of conviction or to review, under the guise of a DNA testing appeal, anything beyond the scope of the request to conduct DNA

NOTES

Respectfully Submitted, Daniel Vaxguen Doming Daniel Vaxguen Doming TDES-20 5555944 Meal Unit 4055 Sque 541 Amarillo, Texas 79101 (15.)