Hicks v. State
Hicks v. State
Opinion of the Court
OPINION
In 1998, Tracy Hicks pleaded guilty to three counts of sexual assault and true to an enhancement allegation paragraph. As a result, he was sentenced to forty years’ incarceration. In 2001, Hicks filed a motion for post-conviction DNA testing. The trial court granted Hicks’s motion and ordered the testing. After the testing was completed, the trial court found that the DNA results were unfavorable to Hicks. Hicks appeals from this ruling. We affirm.
ISSUES RELATING TO HICKS’S 1993 CONVICTION
Hicks’s first and second issues and his fourth through seventh issues directly attack his 1993 conviction. At the time that Hicks filed his DNA motion, this Court’s jurisdiction was confined to appeals of “findings” under articles 64.03 and 64.04 regarding post-conviction DNA hearings.
. In 2003, the Legislature changed the law to allow an appeal under chapter 64 in its entirety. Tex Code Crim. Proc. art. 64.05 (Vernon Supp. 2004). The current law applies to appellants who submit a motion for DNA testing on or after September 1, 2003. Hicks submitted his motion in 2001. Therefore, the former law applies to Hicks’s case. See Wolfe v. State, 120 S.W.3d 368, 370-72 (Tex.Crim.App. 2003).
070rehearing
FARETTA HEARING
Hicks argues in his eighth issue that the trial court erred in failing to hold a Faretta hearing before allowing him to represent himself.
Hicks’s motions and letters indicate that he understands the dangers and disadvantages of self-representation. A defendant’s right to self-representation “cannot be manipulated in such a manner as to throw the trial process into disarray.” Fulbright v. State, 41 S.W.3d 228, 235
Hicks indicates in his motions that he intended to represent himself regardless of whether the trial court allowed his appellate counsel to withdraw. Hicks claimed that his appellate counsel would not present certain issues to this Court that Hicks felt was relevant to his conviction. Because of this Hicks felt that it would be in his best interest and in the best interest of the State that he represent himself. In addition, because of the conclusiveness of the DNA evidence and the restriction of this appeal to chapter 64, the outcome of this proceeding would be no different had Hicks chosen not to represent himself. Therefore, any error in the trial court’s failure to hold a hearing is harmless. See Tex.R.App. P. 44.2; Fulbright, 41 S.W.3d at 235-36. Accordingly, we overrule Hicks’s eighth issue.
POST-CONVICTION DNA REVIEW
Hicks argues in his third issue that a proper chain of custody was not established for the evidence tested and that the test results do not support the trial court’s finding that the DNA results was unfavorable.
Chain of Custody
Hicks argues that the evidence of the DNA results should not have been admitted because a proper chain of custody was not established. In his motion to the trial court requesting DNA testing, Hicks asked the court to find that the DNA evidence had been properly collected and remained in proper custody. As a result, the trial court found there was a proper chain of custody and ordered the tests.
Because Hicks requested that the trial court find a proper chain of custody, and the court did so, he is estopped from complaining about it. The law of invited error estops an appellant from complaining of error that he induced. Jones v. State, 119 S.W.3d 766, 784 (Tex.Crim.App. 2003) (citing Benson v. State, 496 S.W.2d 68, 70 (Tex.Crim.App. 1973)). Hicks cannot now complain that the trial court granted his request.
Unfavorable DNA Evidence
Hicks argues that the test results do not support the trial court’s finding under article 64.04 that the results were unfavorable. Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 4 (amended 2003) (current version at Tex. Code CRIM. PROC. art. 64.04 (Vernon Supp. 2004)). Because the language of article 64.03 is similar to that of article 64.04, appellate courts have applied the article 64.03 standard of review when analyzing article 64.04 appeals.
Courts have found the requirement in article 64.03 that the appellant establish by a preponderance of the evidence that a “reasonable probability exists
The test results show that the DNA of Hicks was “consistent” with the DNA taken from the semen present on the vaginal swab of the victim. The probability that Hicks was not the source of the DNA was 1 in 37.04 quintillion for Caucasians, 1 in 12.8 quintillion for African Americans, and 1 in 11.2 quintillion for Hispanics. Because the odds that Hicks was not the contributor of the DNA exceeds the world’s population, we find that these results do not create a probability of innocence sufficient to undermine our confidence in Hicks’s conviction. Fuentes, 128 S.W.3d at 788. Accordingly, we overrule Hicks’s third issue.
CONCLUSION
Having dismissed or overruled all of Hicks’s issues, we affirm the judgment of the trial court.
. When, a defendant wishes to represent himself, a Faretta hearing is required to advise him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); see also Tex.Code Crim. Proc. Ann. 1.051(g) (Vernon Supp. 2004).
. We apply the standard of review as interpreted by the courts under former chapter 64, as explained above; yet, we note that the Legislature has changed the standard of review for appeals filed under articles 64.03 and 64.04. See TexCode Crim. Proc. arts. 64.03, 64.04 (Vernon Supp. 2004).
Reference
- Full Case Name
- Tracy HICKS, Appellant, v. the STATE of Texas, Appellee
- Cited By
- 14 cases
- Status
- Published