Opinion issued February 6, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00310-CR

TRAVIS EUGENE GRIGGS, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 792922

CONCURRING OPINION

            I concur in the holding of the majority because, as stated in the majority opinion, the Texas Court of Criminal Appeals held in Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002), “[n]othing in Article 64.03 requires a hearing of any sort concerning the trial court’s determination of whether a defendant is entitled to DNA testing.” This court, of course, is bound to follow the statutory construction enunciated by the Texas Court of Criminal Appeals in Rivera. See, Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.—Houston [1st Dist.] 1985, no pet.).

          Accepting the ruling of the Texas Court of Criminal Appeals that the trial court was not required to conduct “any sort” of hearing before making its determination under Article 64.03, I also agree with the majority that the appellant had no constitutional right to be present or to cross-examine witnesses in the Article 64.03 proceeding.

          Although I join the majority in its holding, I am concerned about the practical impact of the Rivera court’s statutory construction of Article 64.03. I recognize, as the concurring opinion in Rivera points out, that Chapter 64 does not prohibit a trial court from conducting an evidentiary hearing before making an Article 64.03 determination. I also acknowledge that, even in the absence of such a hearing, the convicted person’s counsel may be some help in preparing the Article 64.01 motion and, if the trial court denies the motion, in seeking judicial review of the trial court’s discretionary ruling. But I am concerned that the legislature’s evident intent in enacting Chapter 64 may be thwarted if trial courts do not afford an adequate opportunity to convicted persons and their counsel in appropriate cases to make a meaningful presentation on the issues raised by the statute.                               

                                                             Frank G. Evans

                                                             Justice