Opinion
No. 05-04-01441-CR
Opinion issued July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F86-78532-VM. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
In this case, Ronnie Edward Evans challenges the trial court's denial of his motion for post-conviction DNA testing. In a single issue, appellant contends the trial court erred in denying the motion. Concluding appellant failed to meet his burden of showing a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, we affirm the trial court's order. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. Appellant and his brother, Michael Lynn Evans were tried together for the murder of Jack Chandler. They were each convicted and sentenced to life imprisonment in 1987. In 2002, appellant filed a motion requesting post-conviction DNA testing in his case. He specifically requested testing on a blood stain that was found on the carpet of a car he shared with his brother, head hairs and fingernails taken from the deceased, and hair samples also taken from the car. The blood stain, however, was destroyed in July 1999, and the hair samples of the deceased were consumed in 1986. Based on appellant's request for DNA testing of the remaining biological materials, the trial court denied appellant's motion, finding he failed to satisfy the requirement of Texas Code of Criminal Procedure article 64.03(a)(2)(A) that the convicted person show by a preponderance of the evidence a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. In his sole issue on appeal, appellant complains the trial court erred by denying his motion. He argues that any biological material recovered from underneath the fingernails of the deceased would have come from the deceased's assailant during the attack itself and, therefore, favorable DNA results on this matter would be highly exculpatory. He further argues that if the hairs found in the car he shared with his brother were tested, because the State contended the car had been used to transport the deceased's body, the exclusion of appellant and the deceased as the source of those hairs would also be highly exculpatory. To be entitled to post-conviction DNA testing, the convicted person must establish, by a preponderance of the evidence, that a reasonable probability exists he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 194 (2004). In other words, the convicted person must show a reasonable probability exists that exculpatory test results would prove his innocence. Id. In reviewing the convicted person's claims, we defer to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, but we review de novo the remaining application-of-law-to-fact issues. Id. Here, the deceased was killed by three shots to the head, two at extremely close range. Afterward, appellant had scratches on his back that ran "from underneath his arms into the middle of his back around to the middle of his ribs." The source of the scratches was not identified. The medical examiner testified, hypothetically, that if the deceased had been involved in an altercation during which he scratched the other person involved, it would be possible that the deceased would have some of the other persons's biological material under his fingernails. Nevertheless, although the deceased had a contusion on his left upper eyelid and multiple abrasions on his right cheek, no evidence at trial showed that the deceased was able to scratch his killer before he was shot. Scratches to the deceased's body appeared to show that he had been dragged a long distance in the rough terrain where he was found. The medical examiner testified that if a person were dragged such a distance with his hands on the ground, any biological material under the person's fingernails might be lost in the process. Thus, even if DNA testing failed to reveal that the deceased had scratched appellant or his brother, this result would not establish appellant's innocence for the shooting of the deceased. Moreover, even after the deceased had been killed, more than one other person rode in the car appellant and his brother shared. Although the car did not have a back seat when it was sold to appellant's brother, it appears from the record that the back seat area was altered somewhat after the deceased was killed. Proof that the deceased's hair was not found in the car when it was searched would not amount to proof that appellant was innocent of the murder. We agree with the trial court that appellant has failed to meet his burden under code of criminal procedure article 64.03(a)(2). We resolve appellant's sole issue against him and affirm the trial court's order denying appellant's motion for post-conviction DNA testing.