Opinion
01-20-00494-CR
01-10-2023
PATRICK CAMPBELL, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 10-CR-3689
Panel consists of Justices Goodman, Countiss, and Farris.
MEMORANDUM OPINION
APRIL L. FARRIS, JUSTICE
Following his 2012 conviction for aggravated robbery, appellant Patrick Campbell made several requests for appointment of counsel to pursue post-conviction forensic DNA testing of evidence introduced at trial. The convicting court denied these motions. Acting pro se, Campbell filed a motion for DNA testing, which the trial court denied. In three issues on appeal, Campbell contends that the court erred by (1) not ordering the State to properly respond to the motion for DNA testing; (2) denying the motion; and (3) denying his requests for appointment of counsel. We affirm.
Background
A. Trial Proceedings
In 2012, a Galveston County jury convicted Campbell of the first-degree felony offense of aggravated robbery and, finding two enhancement paragraphs true, sentenced Campbell to fifty years' imprisonment. See Tex. Penal Code §§ 29.03(a)(2), 12.32(a), 12.42(c)(1). This Court affirmed the judgment of conviction on direct appeal. See Campbell v. State, No. 01-12-00855-CR, 2013 WL 3155936 (Tex. App.-Houston [1st Dist.] June 20, 2013, no pet.) (mem. op., not designated for publication).
According to the sparse facts from our opinion on direct appeal and in the record in this appeal, three people robbed complainant Jose Varela and his mother at gunpoint. Id. at *1. Varela had driven to his mother's house in Galveston and, before exiting his car, three people approached and assaulted him. Two of the robbers wore masks covering their faces. The third robber, later identified as Campbell, wore a black hoodie. Campbell pointed a gun at Varela's head through the driver's side window as Varela sat in his car. The other two robbers entered Varela's car, and one pointed a second gun at Varela's head while the other held a knife to Varela's throat. They stole Varela's keys, ring, cell phone, and money. The robbers then forced Varela into the house, woke Varela's mother, and demanded money. Campbell also assaulted Varela's mother.
The statement of facts in the State's appellate brief relies exclusively on several volumes of a reporter's record apparently from the trial proceedings, none of which appear in the record on appeal in this case. We cannot consider evidence outside the record on appeal, and therefore we are unable to consider most of the State's statement of facts. See Tex. R. App. P. 34.1; Webster v. State, No. 01-16-00163-CR, 2017 WL 2806786, at *5 (Tex. App.-Houston [1st Dist.] June 29, 2017, no pet.) (mem. op., not designated for publication). The appellate record does include facts asserted by the parties in various filings, including the State's response to Campbell's motion for DNA testing, as well as facts undisputed by the parties.
Someone called the police during the robbery. When police arrived at the house, they saw the robber wearing the black hoodie-Campbell-running from the house into a nearby alley. Police searched the alley and found a black hoodie, a cell phone, and keys. They also found a loaded gun magazine, which is central to this appeal.
Around the same time, police saw a car driving in the alley. Id. The police stopped the vehicle for an expired inspection sticker and discovered three people in the car, one of whom was Campbell. Id. He was no longer wearing the hoodie. Varela's mother identified Campbell as one of the robbers who assaulted her and Varela. Id.
Police discovered DNA on the gun magazine and on other evidence. At trial, forensic analyst Jennifer Moreno testified that she had conducted a forensic test of this DNA. The results of the test excluded Campbell as a contributor to DNA found on the magazine, but the test could not exclude him as a contributor to DNA left on other evidence. Although the appellate record does not include a transcript of the trial or the substance of the testimony, the parties agree that this testimony was admitted at trial.
B. Post-trial Proceedings
In July 2016, the State sent a notice to Campbell concerning the DNA evidence used to convict him at trial. The notice stated that "forensic scientists have recently become aware that a common statistical method they used may not always have taken into account certain important scientific limitations." The notice informed Campbell that he could request a recalculation of the DNA testing by completing and mailing an attached form. The record does not indicate whether Campbell requested a recalculation.
The State represents in its appellate briefing that, in 2017, it conducted additional DNA testing of evidence admitted at Campbell's trial, presumably in relation to this July 2016 notice, and the results of the retesting were inconsistent with the results admitted at Campbell's trial. The State further represents that the gun magazine at issue in this appeal was not retested. The results of the 2017 retesting are not included in the record on appeal. In any event, these results do not affect our analysis for two reasons. First, our analysis does not depend on whether Campbell met the requirements in Code of Criminal Procedure article 64.01, particularly whether the gun magazine "can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test[.]" See Tex. Code Crim. Proc. art. 64.01(b)(2)(A). Second, our analysis of whether Campbell met the requirement in article 64.03(a)(2)(A) is limited to "whether exculpatory results would alter the landscape of evidence at trial, and we do not consider post-trial factual developments." Hall v. State, 569 S.W.3d 646, 656 (Tex. Crim. App. 2019).
In December 2017, Campbell filed a motion requesting that the convicting court appoint counsel to assist him in filing a motion for DNA testing. See Tex. Code Crim. Proc. art. 64.01(c). Campbell argued that reasonable grounds existed to request DNA testing because pretrial DNA testing of the gun magazine produced an "unidentified DNA sample" and identification of the person who contributed the sample would prove Campbell's innocence for the aggravated robbery. He also argued that "newer testing techniques can provide more accurate results, possibly exculpatory." Campbell attached an affidavit from his trial counsel averring that Campbell and counsel jointly decided before trial not to attempt to identify the contributor of the unknown sample. The trial court denied Campbell's motion for appointment of counsel, finding that "no evidence of reasonable grounds" existed for additional DNA testing. See id. (requiring convicting court to appoint counsel for Chapter 64 proceeding if, among other things, court finds reasonable grounds exist to file motion).
In July 2018, Campbell filed a second motion for appointment of counsel. This motion was nearly identical to his first motion. The appellate record does not include a written order denying this motion. However, the trial court filed its prior order denying Campbell's motion for appointment of counsel with the following notation: "Ruled on already 12/14/17 Cont. to be denied."
Campbell states in his appellate brief that he filed multiple requests for appointment of counsel between 2013 and 2018, all of which were denied by the convicting court. Campbell cites to the court's docket sheet, which references several requests for appointment of counsel but does not contain the substance of the motions or the actual motions. Campbell also cites to the State's response to his motion for DNA testing, in which the State represented that Campbell had filed four motions for appointment of counsel but did not mention the substance of the motions. The only two motions that appear in the record are the two motions filed in December 2017 and July 2018 discussed above.
This Court denied two petitions for writ of mandamus filed by Campbell requesting that we compel the trial court to rule on his motions for appointment of counsel and for forensic DNA testing. See In re Campbell, No. 01-18-00801-CR, 2018 WL 4568581 (Tex. App.-Houston [1st Dist.] Sept. 25, 2018, orig. proceeding) (per curiam) (mem. op., not designated for publication); In re Campbell, No. 01-15-00263-CR, 2015 WL 1632464 (Tex. App.-Houston [1st Dist.] Apr. 9, 2015, orig. proceeding) (per curiam) (mem. op., not designated for publication).
In May 2020, acting pro se, Campbell filed a motion for DNA testing of "specifically, a gun magazine." Campbell acknowledged that the magazine was tested prior to his trial, but he generally argued that "newer testing techniques in article[s] 64.03 and 64.035 of the Texas Code of Criminal Procedure" would "provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." See Tex. Code Crim. Proc. arts. 64.03(c) (authorizing testing of DNA evidence by Department of Public Safety ("DPS") or other accredited laboratory if requirements of article are met), 64.035 (authorizing, upon completion of testing under article 64.03, comparison of unidentified DNA profile to profiles contained in DNA databases maintained by Federal Bureau of Investigation ("FBI") and DPS).
Campbell attached an affidavit to his motion, in which he averred that DNA previously collected from the gun magazine had been tested, he was excluded as a contributor to this DNA, and an unidentified DNA profile was found on the magazine. He argued that analyst Moreno did not attempt to identify the contributor by comparing the sample to DNA profiles in the FBI's DNA database. Campbell generally averred that the DNA can be subjected to newer testing techniques that are more accurate and probative than the test previously conducted. Campbell also relied on his trial counsel's affidavit, which we discussed above.
Finally, Campbell relied on an "investigation report" completed by an attorney on his behalf. The report states that analysis of the DNA collected from the gun magazine excluded Campbell and one of the other two alleged robbers as contributors, but it detected a DNA sample from a contributor who was never identified. The report criticizes Moreno for not attempting to identify the contributor by comparing the sample to profiles maintained in the FBI's national DNA database. The report states, "It is certainly reasonable to assume that had the unidentified DNA been identified, tied to an individual, that individual would have been a prime suspect in the commission of the robbery" for which Campbell was convicted.
The State filed several documents in response to Campbell's motion for DNA testing. First, the State filed a notice that it had the gun magazine in its possession but the magazine potentially had been exposed to other people, including court staff and sheriff's office personnel, and therefore a chain of custody could not establish that the magazine had not been "substituted, tampered with, replaced, or altered in any material respect." See Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii); see also id. art. 64.02(a)(2) (requiring convicting court, upon receipt of motion for DNA testing, to order State to deliver evidence to court or explain in writing why evidence cannot be delivered to court).
Second, the State filed a response to the merits of Campbell's motion. The State supported both filings with an affidavit from the custodian of records and evidence for the Galveston County Sheriff's Office averring that the gun magazine had been exposed to environmental elements and "potentially has several other DNA profiles that could show up when DNA [is] tested."
Finally, the State filed a combined document with proposed findings of fact and a proposed order denying Campbell's motion for DNA testing, which the trial court signed.
The order found that Campbell "failed to establish by a reasonable probability that exculpatory DNA testing would establish his innocence by a preponderance of the evidence." The order also found that pretrial DNA analysis excluded Campbell as a contributor to DNA found on the gun magazine, and the results from this analysis were admitted at trial. The order further found that the magazine had not been maintained such that it had not been substituted, tampered with, replaced, or materially altered. Finally, the order determined that Campbell could not establish the elements required by article 64.03(a)(2)(A) and (a)(2)(B).
Campbell filed written objections to the findings of fact and order. He denied that he sought DNA testing of the gun magazine, arguing that he actually sought DNA testing of the swab used to collect the "unidentified DNA sample" from the magazine before trial. Campbell's remaining arguments tracked his prior arguments, including that the profile of the unknown DNA contributor could be compared to profiles in the FBI's database to establish Campbell's innocence for the aggravated robbery. The trial court denied Campbell's objections. This appeal followed.
Chapter 64 Motion for DNA Testing
In three issues, Campbell challenges the State's article 64.02(a) response to his motion for DNA testing, the denial of his motion for DNA testing, and the denial of his requests for appointment of counsel. We consider these issues out of order.
A. Standard of Review
Appellate courts employ a bifurcated standard when reviewing a trial court's ruling on a motion for DNA testing under Chapter 64. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). We give almost total deference to the court's resolution of questions of historical fact that are supported by the record and application-of-law-to-fact issues that turn on witness credibility and demeanor. Id.; Pegues v. State, 518 S.W.3d 529, 533 (Tex. App.-Houston [1st Dist.] 2017, no pet.). We consider de novo all other application-of-law-to-fact questions. Reed, 541 S.W.3d at 768-69; Pegues, 518 S.W.3d at 533. When no witnesses testify at a hearing on a motion for DNA testing or the trial court does not hold a hearing, we review an order denying the motion de novo because "the trial court is in no better position" than the appellate court to review the motion. Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005); Weems v. State, 550 S.W.3d 776, 779 (Tex. App.-Houston [14th Dist.] 2018, no pet.).
B. Applicable Law
Chapter 64 of the Code of Criminal Procedure authorizes post-conviction DNA testing of physical evidence. Tex. Code Crim. Proc. arts. 64.01-.05; see Pegues, 518 S.W.3d at 533. The purpose of post-conviction DNA testing is to allow a convicted person to establish innocence through DNA testing results that exclude the person as the perpetrator of the offense. See Blacklock v. State, 235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007); Pegues, 518 S.W.3d at 533.
A person convicted of a criminal offense may file a motion in the convicting court requesting "forensic DNA testing of evidence that has a reasonable likelihood of containing biological material." Tex. Code Crim. Proc. art. 64.01(a-1). The motion must include a sworn affidavit by the convicted person containing statements of fact in support of the motion. Id. The motion may request forensic DNA testing of evidence that was obtained in relation to the offense that was the basis of the challenged conviction, was in the State's possession at trial of the offense, and either was not previously subjected to DNA testing or was previously tested and can be subjected to testing with "newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test . . . ." Id. art. 64.01(b).
Under article 64.03(a)(2), which is primarily in dispute here, a convicting court may order forensic DNA testing only if:
(2) the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.Id. art. 64.03(a)(2); see Holberg v. State, 425 S.W.3d 282, 284 (Tex. Crim. App. 2014) (stating that convicting court may order post-conviction DNA testing only if statutory requirements are met). If a court orders forensic DNA testing of evidence and, upon completion of the testing, the "analyzed sample meets the applicable requirements of state or federal submission policies," the convicting court must order any unidentified DNA profiles to be compared with DNA profiles in DNA databases established and maintained by the FBI and DPS. Tex. Code Crim. Proc. art. 64.035.
To meet the requirement of article 64.03(a)(2)(A)-i.e., establishing by a preponderance of evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing-the applicant "must show by a preponderance of the evidence-a greater than 50% likelihood-that he would not have been convicted if the proposed testing's exculpatory results were available at the time of his trial." Reed, 541 S.W.3d at 774; Tex. Code Crim. Proc. art. 64.03(a)(2)(A). "Exculpatory results" means "only results excluding the convicted person as the donor of this material." Reed, 541 S.W.3d at 774.
Our inquiry assumes without deciding that the results would prove favorable to the defendant. Id. We do not consider post-trial factual developments that may undermine the State's theory at trial; rather, we limit our review to whether the exculpatory results "would alter the landscape if added to the mix of evidence that was available at the time of trial." Id. (quoting Holberg, 425 S.W.3d at 285). Overwhelming eyewitness identification and strong circumstantial evidence supporting guilt is inconsequential in considering whether a convicted person sufficiently alleged that exculpatory DNA evidence would prove his innocence. Dunning v. State, 572 S.W.3d 685, 697 (Tex. Crim. App. 2019); Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009). Thus, we must determine whether a greater than 50% chance exists that the appellant would not have been convicted had the jury been aware of the presumptively favorable results at trial. Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008).
In cases concerning multiple suspects of a criminal offense, the burden of establishing entitlement to post-conviction DNA testing is more difficult "because there is not a lone offender whose DNA must have been left at the scene." Ex parte Gutierrez, 337 S.W.3d 883, 900 (Tex. Crim. App. 2011). Furthermore, "DNA testing would frequently confirm that the material belongs, as one would expect, to the victim of the crime." Id. If DNA testing would only "muddy the waters," the movant is not entitled to it. Id. at 901-02.
C. Merits of Order Denying Motion for DNA Testing
We begin our analysis with Campbell's second issue because our resolution of it is partially dispositive of his other issues. In his second issue, Campbell contends that the trial court erred by denying his motion for DNA testing.
The trial court's order denying the motion for DNA testing determined that Campbell failed to establish the standards set forth in subsections (a)(2)(A) and (a)(2)(B) of Code of Criminal Procedure article 64.03. The order included several findings of fact and conclusions of law:
• after a "diligent inquiry" by the State, "the State has in its possession, the evidence which [Campbell] has request[ed] be retested, namely a gun magazine";
• Campbell "failed to establish by a reasonable probability that exculpatory DNA testing would establish his innocence by a preponderance of the evidence";
• "pretrial testing excluded [Campbell] from the gun magazine and the test results were admitted at [Campbell's] trial"; and
• "the evidence has not been maintained in a manner which would establish it has not been substituted, tampered with, replaced, or altered in any material respect."
Campbell challenges several aspects of this order.
As an initial matter, Campbell contends that his motion sought forensic DNA testing of the swab used to collect DNA from the gun magazine prior to his trial, which contains the unidentified DNA sample. Campbell denies that he sought DNA testing of the gun magazine itself. However, as the State points out, Campbell's motion expressly stated that he sought to test "specifically, a gun magazine." His motion did not mention a swab. Indeed, all of Campbell's filings prior to the trial court's ruling-his motion, supporting affidavit, and supporting exhibits-requested DNA testing of the gun magazine without mentioning the swab used to collect DNA from the magazine. Campbell first raised the issue of the swab in his objections to the State's proposed findings of fact and order.
As we read Campbell's arguments, it appears that Campbell does not want to retest any evidence for DNA. Instead, he wants to compare the unidentified DNA sample already collected from the gun magazine to profiles in the FBI's national database in an effort to identify the contributor. See Tex. Code Crim. Proc. art. 64.035(1). Campbell apparently recognized that article 64.035, which authorizes comparison of unidentified DNA profiles to profiles maintained in the FBI and DPS DNA databases, expressly applies "on completion of the testing under Article 64.03." He therefore frames his request as a motion for DNA testing which, if granted, would then allow for comparison to profiles in the national database. See id.
In any event, we see no material difference in a request to conduct forensic DNA testing on either the gun magazine or the swab previously used to collect DNA from the magazine. The issue is whether a preponderance of evidence establishes that Campbell would not have been convicted if he was excluded as a contributor to DNA found on the gun magazine, not necessarily whether some other person is identified as the contributor. See id. art. 64.03(a)(2)(A); Reed, 541 S.W.3d at 774 (stating that "exculpatory results" in article 64.03(a)(2)(A) means results excluding convicted person as donor of DNA material). Therefore, our analysis remains the same whether Campbell seeks to retest DNA on either the magazine or the swab.
The primary dispute is whether the trial court erred by determining that Campbell did not meet his burden under article 64.03(a)(2)(A). Campbell acknowledges that the evidence admitted at trial showed that he was excluded as a contributor to the DNA found on the gun magazine. He argues, however, that identifying the unidentified contributor would prove his innocence because it would stop stranger misidentifications; place other perpetrators at the scene of the offense; acknowledge any improper use of DNA in criminal proceedings; and potentially alter his trial strategy. The State responds that pretrial DNA testing of the gun magazine excluded Campbell as a contributor yet a jury still convicted him based on a "wealth of incriminating evidence presented at trial[.]"
The only relevant finding of fact concerning whether Campbell established that exculpatory results of DNA testing would prove his innocence is the finding that "pretrial testing excluded [Campbell] from the gun magazine and the test results were admitted at [Campbell's] trial." The parties do not dispute this finding, and the limited appellate record supports it. We therefore adopt this finding. See Reed, 541 S.W.3d at 768 (stating that reviewing court provides almost total deference to trial court's resolution of historical facts supported by record); Smith, 165 S.W.3d at 363 (stating that reviewing court conducts de novo review of order denying motion for DNA testing when no witnesses testified at hearing on motion).
It is undisputed that three people were involved in the aggravated robbery of Varela and his mother. See Campbell, 2013 WL 3155936, at *1. Two of the robbers wore masks, and the third robber-later identified as Campbell-wore a black hoodie. Campbell and one of the other robbers used guns during the robbery and assault, and the third robber used a knife. Police found the gun magazine at issue in this case and a black hoodie in an alley near the complainant's home where the aggravated robbery occurred. Police also found Varela's cell phone and keys. Police stopped a vehicle driving in the alley after the robbery and found Campbell and two others in the car. Varela's mother identified Campbell as one of the robbers, who assaulted her and Varela, specifically the robber wearing a black hoodie. Police tested the gun magazine and other evidence for DNA. At trial, a forensic DNA analyst testified that Campbell was excluded as a contributor to DNA found on the gun magazine, but he could not be excluded as a contributor to DNA found on other evidence.
In determining whether Campbell established the requirements of article 64.03(a)(2)(A), we assume that DNA retesting of the gun magazine would produce exculpatory results. See Reed, 541 S.W.3d at 774. "Exculpatory results" means only results that would exclude Campbell as the donor of the DNA evidence left on the gun magazine or the swab. See id. We must determine whether such exculpatory results would show that Campbell would not have been convicted of committing the aggravated robbery offense such that he was entitled to forensic DNA testing of the evidence. See id.
When, for example, an offense is committed by a single person, the identity of the assailant is at issue, and there is no possibility that DNA from a person other than the assailant would be present on the physical evidence, then DNA belonging to a third party would establish the movant's innocence. Ex parte Gutierrez, 337 S.W.3d at 900; Pegues, 518 S.W.3d at 533-34; see Esparza, 282 S.W.3d at 921-22 (concluding that movant was entitled to DNA testing because record evidence established that assailant was sole donor of semen deposited in rape victim); Blacklock, 235 S.W.3d at 232 (concluding that movant was entitled to DNA testing because "victim's lone attacker is the donor of the material for which appellant seeks DNA testing").
In cases with multiple assailants, however, it is more difficult to meet the burden of establishing that exculpatory DNA results would prove the convicted person's innocence "because there is not a lone offender whose DNA must have been left at the scene." Ex parte Gutierrez, 337 S.W.3d at 900; see Pegues, 518 S.W.3d at 535. We determine whether identity is an issue and whether DNA results would tend to be exculpatory by analyzing whether "(1) the offense is the type for which DNA test results would indicate the identity of the assailant and (2) the material to be subjected to DNA testing was collected in a manner and from a location that would allow a conclusion that the source of the DNA was the assailant." Pegues, 518 S.W.3d at 535.
We cannot conclude that Campbell met his burden under article 64.03(a)(2)(A). The aggravated robbery was committed by three people, not a "lone offender" who must be the donor of the DNA left on the gun magazine. See Ex parte Gutierrez, 337 S.W.3d at 900; Pegues, 518 S.W.3d at 533-34. Any number of people could have been in contact with the subject magazine prior to the aggravated robbery, and someone other than Campbell could have loaded the magazine into the gun. Campbell himself may have worn gloves or wiped DNA off the magazine before loading it into the gun, which would explain the trial evidence excluding him as a contributor to DNA on the magazine. Even without evidence that his DNA appeared on the gun magazine, Campbell was identified as one of the three robbers and as having used a firearm during the robbery. Even if DNA retesting would place other perpetrators at the scene of the crime, as Campbell argues, the record indicates that two other people committed the offense with Campbell. Therefore, excluding Campbell as a contributor to the DNA profile on the magazine does not show that he was innocent of the offense. This case differs from those in which DNA material must have been from a lone offender such that exclusion of a person as a contributor of the DNA material necessarily excludes that person as the offender. See Esparza, 282 S.W.3d at 921-22; Blacklock, 235 S.W.3d at 232; see also Ex parte Gutierrez, 337 S.W.3d at 900.
Campbell also argues that DNA retesting could halt stranger misidentifications, acknowledge any improper use of DNA in criminal proceedings, and potentially alter his trial strategy. But these arguments are not relevant to whether Campbell established that he would not have been convicted if the results of DNA testing were exculpatory, which is the focus of our inquiry. Assuming that DNA testing of the gun magazine or the swab would exclude Campbell as a DNA contributor, as we must, Campbell has not established a greater than 50% likelihood that he would not have been convicted of the offense. See Reed, 541 S.W.3d at 774.
On appeal, the State points to extensive evidence-including eyewitness identifications of Campbell, accomplice testimony concerning Campbell's participation in the offense, and testimony about DNA results on various other pieces of evidence-in arguing that exculpatory results from DNA testing of the magazine would not have warranted Campbell's acquittal. The State relies solely on numerous volumes of a reporter's record that do not appear in the appellate record for this case. We may not consider evidence outside the record on appeal. See Tex. R. App. P. 34.1; Webster v. State, No. 01-16-00163-CR, 2017 WL 2806786, at *5 (Tex. App.- Houston [1st Dist.] June 29, 2017, no pet.) (mem. op., not designated for publication). More importantly for purposes of our analysis of the Chapter 64 issues presented, overwhelming eyewitness identification and strong circumstantial evidence of guilt is of no consequence on the issue of whether a convicted person sufficiently alleged that exculpatory DNA evidence would prove the person's innocence. See Dunning, 572 S.W.3d at 697; Esparza, 282 S.W.3d at 922.
We hold that the trial court did not err by denying Campbell's motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. We overrule Campbell's second issue.
D. State's Response to Motion for DNA Testing
In his first issue, Campbell contends that trial court erred by not requiring the State to properly respond to his motion for DNA testing. He argues that the State responded to the wrong evidence: the gun magazine rather than the swab of DNA taken from the gun magazine. While acknowledging that Campbell raised this issue when he filed objections to the State's proposed findings of fact and order on the motion, the State responds that Campbell did not preserve error because he never requested that the trial court order the State to file a proper response. The State alternatively argues that any error is harmless.
To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the complaint with sufficient specificity to make the trial court aware of the complaint unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a)(1)(A). The record must further show that the trial court ruled on the complaint or refused to rule on it. Tex.R.App.P. 33.1(a)(2).
In his motion for DNA testing, Campbell requested DNA testing "specifically" of the gun magazine without mentioning any swab. Likewise, the exhibits that Campbell relied on in support of his motion discussed only DNA testing of the gun magazine, not a swab. Campbell first mentioned that he sought retesting of a swab in his objections to the State's proposed findings of fact and order on the motion. The trial court signed an order denying his objections.
Although Campbell did not specifically request that the trial court order the State to respond to a request for DNA testing of the swab, the specific grounds of his complaint were apparent from his objections: the State responded to the wrong evidence. Campbell's complaint was that he sought DNA testing of a swab that collected DNA evidence from the gun magazine prior to trial, which the State's responses did not address. See Tex. R. App. P. 33.1(a)(1)(A). Within ten days of the State filing its responses and proposed findings of fact and order-all addressing only the gun magazine-Campbell filed his objections raising his complaint. See Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021) (stating that, to be timely under Rule 33.1(a)(1), complaint must be made as soon as grounds for complaint are apparent or should be apparent). Finally, the trial court entered a written ruling denying his objections. See Tex. R. App. P. 33.1(a)(2). We therefore conclude that Campbell preserved his first issue for review.
Nevertheless, any error by the trial court in not requiring a further response from the State is harmless. Article 64.02 requires the convicting court, upon receiving a motion for DNA testing, to order the State either to deliver the evidence to the court or to explain in writing why the State cannot deliver the evidence to the court. Tex. Code Crim. Proc. art. 64.02(a)(2). Regardless of whether the State has submitted this response, the court may consider the motion after sixty days. Id. art. 64.02(b).
The State filed a response under article 64.02(a) without awaiting an order to do so. The State's response explained why it could not deliver the gun magazine to the court, which was the only evidence mentioned by Campbell in his motion for DNA testing and supporting documents. But as discussed above, regardless of whether Campbell had sought testing of the gun magazine or the swab, there is no material difference in our analysis of the merits of Campbell's motion for DNA testing. Even if the swab had been available for testing, exculpatory results would not have proved Campbell's innocence. Moreover, article 64.02(b) authorizes the convicting court to proceed with determining a motion for DNA testing "regardless of whether the attorney representing the state submitted a response" under article 64.02(a)(2). See id. In denying Campbell's objections, the trial court could have determined that Campbell could not establish his entitlement to DNA testing under article 64.03(a)(2)(A). See id. (authorizing such a determination).
We therefore hold that any error by the trial court in not requiring the State to respond under article 64.02(a) was harmless. We overrule Campbell's first issue.
E. Appointment of Counsel
Finally, in his third issue, Campbell challenges the trial court's denial of his requests for appointment of counsel to assist him in filing the motion for DNA testing. Campbell relies on his arguments concerning the merits of his DNA motion to support his arguments that reasonable grounds existed to appoint counsel.
A convicted person is entitled to counsel during a proceeding for post-conviction DNA testing under Chapter 64 if the convicted person meets certain conditions. Tex. Code Crim. Proc. art. 64.01(c). One such condition is a finding that reasonable grounds exist to file a motion for DNA testing. Id. Whether "reasonable grounds" exist for testing "necessarily turns on what is required for testing." Ex parte Gutierrez, 337 S.W.3d at 891.
One requirement for testing is that the case is the type of case in which exculpatory DNA results would have made a difference. Id. "Reasonable grounds are present when the facts stated in the request for counsel or otherwise known to the convicting court reasonably suggest a 'valid' or 'viable' argument for testing can be made." Id. In determining whether reasonable grounds exist, a trial court may "simply assume that the result of any proposed DNA testing is 'exculpatory' in the sense that the test will prove that the inmate is not the source of the DNA." Id. If such an assumption of exculpatory results would not change the probability that the appellant would still have been convicted, then no reasonable grounds exist to appoint an attorney and no justification exists for ordering any testing. Id.
As set forth above, the record evidence supports the trial court's denial of Campbell's request for appointment of counsel. We have already determined that Campbell failed to establish by a preponderance of evidence that he would not have been convicted if exculpatory DNA results had been obtained from the gun magazine or the swab. See id. at 899; Weems, 550 S.W.3d at 781 (holding that trial court did not err by denying request for appointment of counsel because defendant did not demonstrate statutory preconditions to obtain DNA testing). The trial court could have reasonably determined that, assuming any DNA testing results would be exculpatory, no reasonable grounds existed for testing. See Ex parte Gutierrez, 337 S.W.3d at 892.
We conclude that the trial court did not err by denying Campbell's request for appointment of counsel to assist in filing a motion for DNA testing. We overrule Campbell's third issue.
Conclusion
We affirm the order of the trial court.