No. 05-06-01665-CR
Opinion Filed November 9, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F92-00375-UP.
Before Justices MOSELEY, LANG, and MAZZANT.
DOUGLAS S. LANG, JUSTICE.
Wilbert Cecil Johnson appeals the trial court's denial of his motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. Appellant presents four issues on appeal, asserting the trial court erred by: (1) denying his motion for post-conviction DNA testing because he would not have been convicted if exculpatory DNA test results had been available; (2) denying his chapter 64 motion in a summary order in derogation of his right to due process pursuant to the Fourteenth Amendment to the United States Constitution; (3) applying an improper scope of review to his motion; and (4) not holding a hearing on his chapter 64 motion, which allegedly violated his Fourteenth Amendment rights. For the reasons below, appellant's four issues are decided against him. We affirm the trial court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 1991, seventeen-year-old Aaron Hulbert lived with his mother, Hattie Mae Johnson, and appellant, who was Mrs. Johnson's husband and Hulbert's stepfather. According to Mrs. Johnson's testimony at trial, Hulbert and appellant "hated" one another. Hulbert and appellant had engaged in a physical fight earlier in the year over appellant's pawning of items from their home. On Thursday, November 7, 1991, Hulbert received and cashed a paycheck for $517.63 and put the money in his wallet. The next day, Friday, November 8, Mrs. Johnson left for Mississippi to care for her sick mother. Mrs. Johnson testified her relationship with appellant was strained at that time because she felt appellant, who was unemployed, did not want to work and she was his only source of income. Before she left for Mississippi, Mrs. Johnson told appellant to leave her house. She told appellant he could take her car if he wanted to, as long as he left. On the morning of Saturday, November 9, Hulbert telephoned Mrs. Johnson in Mississippi. Appellant had not left the house, and Hulbert was upset. Mrs. Johnson told Hulbert to wait until appellant left and then "board the doors so he couldn't get back in." Hulbert and a friend, Michael Loving, attended a football game that afternoon. They drove to the game in Hulbert's car, a blue Oldsmobile that Hulbert "loved" and seldom let others drive. The two returned to Hulbert's home at about 5 p.m. Except for the front door, all doors and windows of the house were boarded up. Inside, Hulbert and Loving found appellant lying on the couch. Hulbert was angry that appellant was in the house. A rented stereo and videocassette recorder were missing from the house. Between 5:30 and 6:30 p.m., Hulbert's sister, Tiffany Hulbert, arrived at the house. She was also upset that appellant was in the house. Tiffany called Mrs. Johnson, who spoke with appellant and asked him what had happened to the stereo and videocassette recorder. Appellant told Mrs. Johnson both items had been picked up by the rental company. Mrs. Johnson again told appellant to get out of the house. Tiffany, Hulbert, and Loving left the house at 7 p.m., leaving appellant in the house. Hulbert and Loving spent the evening with their respective girlfriends and returned to the house shortly after 2 a.m. They did not see appellant in the house when they returned. Loving spent the night at Hulbert's house. Hulbert and Loving awoke at approximately 8 a.m. on Sunday, November 10. Hulbert drove Loving home. In a phone call at approximately 10 a.m. that day, the two made plans to play basketball later that afternoon. That phone call was the last time Loving spoke to Hulbert. Bernell Brisco, a friend of appellant, testified that at 11:15 a.m. on Sunday, November 10, he saw appellant at a gas station in a car fitting the description of Hulbert's car. Appellant asked Brisco if he had any money. When Brisco told appellant he did not, appellant pulled out a "wad" of cash and gave Brisco ten dollars. Brisco testified appellant was acting "jittery." After appellant drove away, Brisco went to the house of David Gaines, where Brisco was staying. Willie Charles Myles, an acquaintance of appellant, testified that between noon and 3 p.m. on Sunday, appellant drove to his house in a car matching the description of Hulbert's car. A short time later, Myles and a woman named C.J. Bookman drove the car in which appellant had arrived to a pawnshop to pawn a "jam box" radio that was in the car. According to Myles's testimony, appellant stayed at Myles's house while he and Bookman went to the pawnshop. Gaines, also an acquaintance of appellant, testified that while he was in his house at approximately 5 p.m. on Sunday, he heard a police siren. Gaines stepped out onto the porch of his house, which was across the street from Myles's house, and observed police tailing Myles, who was driving a car Gaines knew to be Hulbert's. Bookman was also in the car, but not appellant. Gaines saw police "pull [Myles] over in front of his house." Myles got out of the car and left with police. The car remained parked in front of Myles's house. Then, Gaines testified, appellant came out of Myles's house, and Gaines observed a police officer give appellant the keys to Hulbert's car. Gaines stated that shortly after 5 p.m. on Sunday, he observed appellant talking with an acquaintance named Herman Porter in the street in front of Gaines's house. According to Gaines, the conversation lasted about fifteen minutes and became argumentative. Gaines testified appellant spent "most of the evening on Sunday" at his house, playing dominoes with him, Brisco, and several others. At approximately 9 p.m. on Sunday, Gaines asked appellant whether he was supposed to be taking his stepson's car home so his stepson could get to work. Appellant told Gaines that Hulbert was already at work. Apparently in response to requests by appellant, Gaines told appellant three times that he would not accompany him to Mrs. Johnson's house. Gaines testified that at about 10 p.m. on Sunday, appellant was again outside of Gaines's house arguing with Porter. Gaines heard a "[l]oud noise like a piece of iron hit the ground." Gaines and Brisco went outside and found appellant unconscious in Gaines's driveway. Gaines and Brisco carried appellant into Gaines's house, where appellant regained consciousness. Appellant spent Sunday night at Gaines's house. According to Gaines, Hulbert's car was not at Gaines's house Sunday night because appellant had given it to Porter. The next morning, Monday, November 11, Gaines told appellant he should return Hulbert's car to him. Appellant told Gaines, "Don't worry about it." Appellant spent most of Monday and all of Monday night at Gaines's house. Mrs. Johnson called her house from Mississippi several times between 1 p.m. and 9:30 p.m. on Sunday, November 10, but no one answered. She attempted to call Hulbert again on Monday, November 11, to no avail. At 8:30 p.m. on November 11, Mrs. Johnson called Tiffany, who agreed to drive to the house to check on Hulbert. When Tiffany arrived at the house, she found all of the doors locked. Tiffany and her boyfriend peered through a window and were able to see Hulbert's feet, tied up with a cord. They climbed into the house through the window. Hulbert's body was lying face down on the floor of the living room. His hands and feet were tied and two plastic bags had been placed over his head. One bag was secured by a cord wound around his neck. The bags were covered with blood. Tiffany called the police and told them she believed appellant had killed her brother. A jack was found lying "beside and up under the leg portions" of Hulbert's body. Hulbert's wallet was not on his body when he was found and was still missing at the time of trial. After calling police and speaking with Mrs. Johnson, Tiffany called Edward Taylor, a family friend, and asked him to come to the house. Taylor arrived at the house, comforted Tiffany, and told police he thought appellant might be at Gaines's house. At approximately 7 a.m. on Tuesday, November 12, Taylor went to Gaines's house. Appellant was asleep on the couch. Taylor shook him, but appellant did not awaken. Taylor called police and told them appellant was at Gaines's house. Detective Bobby Hammer was dispatched to Gaines's house to inform appellant of Hulbert's death and see if appellant wanted to talk to the police. Hammer was unaware appellant was a suspect. Hammer described appellant's reaction to the news of Hulbert's death as follows: "At that time it didn't seem to matter to him one way or the other. He didn't have a reaction. He acted like I would think he already knew about it." Appellant agreed to go to the police station and discuss the case with police. At the police station, appellant was placed in an interview room. Hammer called Detective Roger Carney, who was heading the investigation of Hulbert's murder. Carney told Hammer to observe whether appellant's clothes appeared bloodstained and, if so, to have a presumptive test run for blood. Seeing what appeared to be bloodstains on appellant's pants, Hammer asked appellant if he would mind taking off his clothes to be tested for the presence of blood. Appellant agreed. Appellant put on coveralls supplied by police and gave his shoes, jeans, and shirt to Hammer. Detective Howard Johnson then interviewed appellant, and appellant agreed to give a written statement. In his written statement, appellant stated that Hulbert had agreed early Saturday morning to allow appellant to use his car. In addition, appellant stated that after leaving with Hulbert's car, he did not return to the house. While Johnson interviewed appellant, Carney interviewed various witnesses. After noting that appellant's written statement materially conflicted with the statements from other witnesses, Carney arrested appellant for Hulbert's murder. Dr. Janice Townsend-Parchman, who performed the autopsy on Hulbert, testified at trial that two bags, an inner bag and an outer bag, covered Hulbert's head. The bags placed over Hulbert's head were the same type of bags as those found in a box that Mrs. Johnson testified she kept under her bed. Once the bags were removed, Dr. Townsend-Parchman saw that Hulbert had a large laceration on the left side of his forehead that exposed his skull. Hulbert also had multiple abrasions, contusions, and small lacerations around his face, a contusion on his lip, and a broken incisor. Due to the fact that blood was found in Hulbert's lungs, Dr. Townsend-Parchman surmised the bags were placed over Hulbert's head after he sustained a blow to the head. The two plastic bags were examined for fingerprints by Officer John J. Boyle. Boyle testified at trial that appellant's fingerprints were found on the outside of the outer bag. An unknown palm print was also found on that bag. No latent fingerprints were found on the inner bag. Detective James R. Smith investigated the crime scene. Smith testified at trial that he was unable to find latent fingerprints on the jack found under Hulbert's body. The jack did have cast-off, or splattered, blood on "the black item on the end," which was referred to in the record as the "head" of the jack, and blood smears on the handle. Smith was able to lift appellant's palm print and three fingerprints from an aerosol spray can of solvent "degreaser" found near Hulbert's body. Smith testified there was no evidence that doors or windows to the house had been manipulated. Michelle Skidmore, a forensic serologist at the Southwestern Institute of Forensic Sciences, tested appellant's clothing. Skidmore testified at trial that she was able to determine the blood found on appellant's jeans was human blood, but the sample was not large enough to determine whether it was Hulbert's blood type. The blood on the jack found beneath Hulbert's body was tested and found to be human and type PGM 1+, the same type as Hulbert's blood. However, Skidmore testified that forty-one percent of the African-American population has type PGM1+ blood. Edward Taylor testified that, three or four weeks before Hulbert's murder, appellant borrowed from Taylor the jack that was later found under Hulbert's body. Appellant did not return the jack to Taylor. Mrs. Johnson testified the jack had been stored in the trunk of her car, for which only she and appellant had keys. There were no signs of forced entry to Mrs. Johnson's car. Appellant pleaded not guilty. At trial, appellant's written statement to police was read to the jury. Appellant testified outside the presence of jury for the limited purpose of a hearing on his motion to suppress the clothing collected from him by police. The jury found appellant guilty of murder. Appellant pleaded true to one enhancement paragraph, and the jury found the enhancement true. The jury assessed punishment at life imprisonment and a fine of $10,000. The trial court's judgment was affirmed by this Court in an unpublished opinion on May 11, 1994. See Johnson v. State, No. 05-92-01011-CR, 1994 WL 183416 (Tex.App.-Dallas May 11, 1994, no pet.) (not designated for publication). On December 8, 2004, appellant filed a "Pro Se Motion Requesting DNA Testing of Biological Evidence." On September 20, 2005, and April 6, 2006, respectively and through appointed counsel, appellant filed a motion and an amended motion for post-conviction DNA testing. In the amended motion, appellant sought testing of blood samples from the clothes he was wearing at the time he was taken to the police station, hair samples and fingernail clippings taken during Hulbert's autopsy, and biological material on the jack, aerosol can, plastic bags, newspapers, and paper towels found at the murder scene. The State argued there was substantial evidence of appellant's guilt aside from any DNA evidence and "the evidence [appellant] seeks to have tested would have no impact on the remaining evidence pointing to his guilt." The trial court denied appellant's motion on September 21, 2006, without a hearing. In its order, the trial court specifically found that appellant had "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available at trial." This appeal followed. II. DENIAL OF POST-CONVICTION DNA TESTING A. Standard of Review and Applicable Law
A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon 2006). However, the convicting court may order forensic DNA testing only if certain requirements are met. Id. art. 64.03. Under article 64.03(a)(1)(A), the court must find the evidence still exists, is in a condition making DNA testing possible, and has been subjected to a sufficient chain of custody. Id. art. 64.03(a)(1)(A). In addition, article 64.03(a)(1)(B) requires the court to find that "identity was or is an issue in the case." Id. art. 64.03(a)(1)(B). Finally, under article 64.03(a)(2), the convicted person must establish 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)(A)-(B). In reviewing a trial court's decision to deny a motion for post-conviction DNA testing, courts employ the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Under that standard, a reviewing court affords almost total deference to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. Id. Because this appeal does not involve any credibility or demeanor determinations, we review the trial court's legal conclusions de novo. See id. B. Appellant's Burden Under Article 64.03(a)
In his first issue, appellant argues the trial court erroneously denied his motion for DNA testing because he proved by a preponderance of the evidence that "identity was in issue" and that exculpatory DNA test results would have prevented his conviction. Further, appellant contends "the State's case was circumstantial in the extreme and rested in significant fashion upon the blood drop evidence." The State asserts the trial court properly denied appellant's motion for post-conviction DNA testing because there is substantial evidence of appellant's guilt independent of that which he seeks to have tested. Moreover, the State argues, the lack of Hulbert's blood on appellant's clothing and a third party's DNA on evidence would not prove appellant's innocence in this case. In its order denying appellant's motion, the trial court specifically found appellant "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available at trial." See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). Texas courts have consistently held that a movant does not satisfy his burden under article 64.03 if the record contains "other substantial evidence of guilt independent of that for which the movant seeks DNA testing." Carter v. State, 134 S.W.3d 484, 486 (Tex.App.-Waco 2004, no pet.). Accordingly, we must determine whether the record in this case contains substantial evidence of guilt independent of that for which appellant sought DNA testing. The State asserts the following evidence pointed to appellant's guilt: (1) weeks before the murder, appellant borrowed the jack later found under Hulbert's body; (2) the jack was stored in the trunk of Mrs. Johnson's car, for which only Mrs. Johnson and appellant had keys, and there were no signs of forced entry to the car; (3) appellant's fingerprints were found on the outer bag covering Hulbert's head, and the bag was of the same type as those in a box kept under Mrs. Johnson's bed; (4) appellant's palm print and three fingerprints were on an aerosol can of solvent found near Hulbert's body; (5) Mrs. Johnson told appellant to move out of their home days before Hulbert's murder and instructed Hulbert to board up the house to prevent appellant's return; (6) appellant was seen driving Hulbert's car on Sunday, although Hulbert seldom allowed others to drive his car; (7) although appellant claimed in his written statement to police that he borrowed Hulbert's car with permission early Saturday morning and did not go back home after that, witnesses saw Hulbert driving his car all day Saturday and on Sunday morning, and saw appellant in the house on Saturday evening; (8) there was no sign the house had been broken into; (9) Hulbert and appellant had fought in the past over appellant's pawning items from the house, and Hulbert was upset on Saturday that a videocassette recorder and stereo were missing from the house; and (10) Hulbert's wallet was not on his body when he was found, and appellant was seen with a "wad" of cash on Sunday. Appellant contends the presence of his prints within the home is "unremarkable" because he had been present in the home prior to the murder. Further, he asserts the evidence respecting "domestic strife" and his use of Hulbert's car is not circumstantial evidence of murder. In addition, appellant contends evidence the house was locked "in no way links [him] to the murder." Finally, he argues that evidence respecting controversies over pawned items is not "inculpatory" and, moreover, would seem to explain his possession of cash. The evidence sought for testing in this case included blood samples from the clothes appellant was wearing at the time he was taken to the police station, hair samples and fingernail clippings taken during Hulbert's autopsy, and biological material on the jack, aerosol can, plastic bags, newspapers, and paper towels found at the murder scene. However, there is no dearth of other facts in the record pointing to appellant's guilt. Appellant's prints were found on the plastic bags and aerosol can. Appellant's written statement to police conflicted with witness testimony respecting appellant's use of Hulbert's car and appellant's presence at the house. There was no sign of forced entry at the house, and appellant had knowledge of the storage location of the jack found under Hulbert's body and the plastic bags of the type found covering Hulbert's head. Only appellant and Mrs. Johnson had keys to the car where the jack had been stored. Mrs. Johnson was in Mississippi at the time of the murder. There were no signs of forced entry to that car. Hulbert cashed a paycheck for $517.63 on the Thursday before his murder and put the money in his wallet. Hulbert's wallet was not found on his body. Appellant, who was unemployed, was seen with a "wad" of cash on Sunday. Appellant said in his written statement to police that he gave a man named Charles Wilson a stereo and videocassette recorder to pawn on Saturday, but that Wilson gave him no money from the pawning of those items. We conclude from the record that, even if DNA testing showed the blood on appellant's clothing to be his own, as he claimed in his motion, "substantial evidence" of appellant's guilt would remain. See Hood v. State, 158 S.W.3d 480, 483 (Tex.Crim.App. 2005) (defendant failed to meet burden for DNA testing where, inter alia, defendant's fingerprints were found on trash bags covering victim's body and defendant was in possession of victim's car). Moreover, DNA test results showing a third person's DNA on the fingernail clippings, jack, aerosol can, plastic bags, newspapers, and towels would not prove appellant did not commit Hulbert's murder. See Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002) (presence of another person's DNA at crime scene will not, without more, constitute affirmative evidence of defendant's innocence). Regardless of whose DNA might be found on those materials, as we concluded above, other evidence at trial established appellant's guilt. See Whitaker v. State, 160 S.W.3d 5, 9 (Tex.Crim.App. 2004) (where other evidence at trial established defendant's guilt, DNA testing of blood on murder weapon would be meaningless). A movant does not satisfy the requirement of article 64.03(a)(2)(A) if exculpatory test results "would merely muddy the waters." See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.) (citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002)); see also Carter, 134 S.W.3d at 486. Finally, appellant asserts "it is undeniable that the State relied upon blood evidence in its closing argument, arguing: `He's got blood on his clothes.'" Therefore, appellant contends, "it cannot rightly be said that exculpatory DNA test results of [the blood evidence] would not have resulted in a not guilty verdict." However, the record shows that at trial, the jury was presented with evidence that the blood found on appellant's clothing could have been appellant's own blood. It was established at trial that on Sunday night, appellant was knocked unconscious. Further, the jury heard testimony that appellant's jeans were well-worn, with other stains besides the blood, and that the velocity with which the blood was deposited on the jeans was consistent with a cut on the person wearing the jeans. Despite such evidence, the jury found appellant guilty. Accordingly, we conclude appellant has not met his burden to show he would not have been convicted of Hulbert's murder had DNA test results confirmed the blood on his clothing did not belong to Hulbert. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). We conclude the trial court did not err in denying appellant's motion for post-conviction DNA testing on the ground that appellant "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available at trial." Appellant's first issue is decided against him. C. Alleged Violation of Appellant's Constitutional Rights
In his second and fourth issues, appellant alleges violation of his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Because the resolution of those two issues involves the same analysis, we address appellant's second and fourth issues together. Specifically, in his second issue, appellant contends the trial court erred by denying his chapter 64 motion in a "summary order" in derogation of his due process rights. Appellant asserts the trial court's order provides no analysis or actual answer to his contentions, disposing of them without an explanation. Appellant argues, "Such a summary procedure is inherently suspect and violates basic notions of Due Process and fairness." In his fourth issue, appellant contends the trial court's refusal to grant a hearing on his motion for post-conviction DNA testing denied him a full and fair hearing of his claims, thus violating his right to due process. In addition, in his argument in his appellate brief, he asserts "it has been held that a claim of actual innocence by a death-row prisoner based on newly discovered evidence merits a hearing." Appellant argues his case is "rationally indistinguishable and similarly situated," and therefore "also warrants a hearing lest [appellant] endure treatment different in contravention of the Equal Protection Clause of the Fourteenth Amendment." The State asserts appellant has not preserved his due process and equal protection complaints for appellate review. In addition, the State argues the trial court's order does not violate appellant's right to due process. The State asserts chapter 64 contemplates findings only when the trial court grants DNA testing, whereas the trial court in this case denied appellant's motion for DNA testing. Further, the State argues, the trial court's order provided appellant with notice as to the portion of the statute upon which the denial was based. With respect to appellant's fourth issue, the State asserts appellant's argument is multifarious because it combines two distinct constitutional allegations into one issue. In any event, the State contends, appellant was not entitled to a hearing and the failure to conduct a hearing did not violate his due process or equal protection rights. The State asserts appellant was offered the opportunity to be heard, even without a hearing. Moreover, the State states, "all movants for post-conviction DNA testing are equally not entitled to a hearing under the statute." Texas Rule of Appellate Procedure 33.1 provides in relevant part that, as a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that states the specific grounds for the desired ruling, if such grounds are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1; West v. State, 121 S.W.3d 95, 114 (Tex.App.-Fort Worth 2003, pet. ref'd). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. West, 121 S.W.3d at 114. Preservation of error is a systemic requirement that this Court should review on its own motion. Id. Constitutional rights may generally be waived if the proper request, objection, or motion is not asserted in the trial court. Curry v. State, 186 S.W.3d 39, 42 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (appellant waived due process challenge respecting article 64.03 by failing to assert such challenge in trial court) (citing Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990) (even constitutional error may be waived)). As to appellant's second issue, the record shows appellant did not object to or otherwise complain of the contents of the trial court's order. Moreover, appellant did not request that the trial court rule on the other requirements of chapter 64 or that the trial court address the facts of the case and the parties' arguments. With respect to appellant's fourth issue, appellant did not request the trial court to conduct a "pre-test hearing," nor did he object on due process or equal protection grounds to the trial court's failure to conduct such a hearing. Accordingly, we conclude appellant has not preserved his second and fourth issues for appellate review. See Tex. R. App. P. 33.1(a)(1); West, 121 S.W.3d at 114. We resolve appellant's second and fourth issues against him. D. Alleged Improper Scope of Review
In his third issue, appellant contends the trial court erred by applying an improper scope of review to appellant's motion for post-conviction DNA testing. Appellant asserts motions under chapter 64 are afforded an "expansive" scope of review. He argues, "Such was not employed here, and so, the trial court erred in delimiting its review." Specifically, appellant contends "the trial court issued an order that appears to make no explication of the applicable standard or the specific contentions." He argues no specific mention was made of his sworn assertions of innocence and, therefore, it appears the trial court failed to consider his assertion "in contravention of the applicable scope of review." In addition, he asserts the trial court's order makes no mention of his contentions regarding biological evidence during his initial direct appeal, which "conflicts the applicable scope of review." The State asserts the trial court's order "specifically states that it considered the complained-of allegations." Moreover, the State argues, "even if the trial court did not specifically consider the complained-of allegations and facts, appellant has not explained how the consideration of the issues would have changed the trial court's ruling in this case." The trial court expressly stated in its order denying DNA testing that it had considered "the pleadings of both Wilbert Cecil Johnson and the State, the requirements of article 64.01 and 64.03 of the Texas Code of Criminal Procedure, the record, and the Court's own personal experience and knowledge" in concluding appellant was not entitled to post-conviction DNA testing under chapter 64. See Smith v. State, 165 S.W.3d 361, 365 (Tex.Crim.App. 2005) (where trial court took judicial notice of trial record in considering motion for post-conviction DNA testing, proper standard of examination encompassed all facts contained in record). Appellant's assertion of actual innocence is contained in his formal motion for post-conviction DNA testing, which is part of the record in this case. Likewise, the challenges made by appellant on direct appeal were discussed in this Court's opinion, which was attached to the State's response to appellant's motion and is therefore part of the record. See Johnson, 1994 WL 183416. The trial court expressly stated it considered the record in ruling on appellant's motion. Thus, contrary to appellant's argument, the trial court's order indicates the trial court considered the contentions and assertions complained of by appellant. Accordingly, we conclude appellant's argument that the trial court applied an "improper scope of review" to appellant's motion for post-conviction DNA testing is without merit. Appellant's third issue is decided against him. III. CONCLUSION
Because the record contains substantial evidence of guilt independent of that for which the appellant seeks DNA testing, we conclude the trial court did not err in denying appellant's motion for post-conviction DNA testing on the ground that appellant "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available at trial." In addition, we conclude appellant's second and fourth issues, respecting the alleged violation of his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution, were not preserved for appellate review. Finally, because the record shows the trial court considered the contentions and assertions complained of by appellant, we conclude appellant's argument that the trial court applied an "improper scope of review" to appellant's motion is without merit. Appellant's four issues are decided against him. The trial court's order is affirmed.