No. 05-04-00659-CR
Opinion Filed May 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 1, Dallas County, Texas, Trial Court Cause No. F91-01803-H. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS
LANG-MIERS, Justice.
Jesse Paul Skinner appeals the trial court's denial of his motion for post-conviction DNA testing pursuant to Texas Code of Criminal Procedure 64.03. In a single issue, appellant argues that the trial court erred in denying his motion because (1) identity was an issue at trial and (2) there is a reasonable probability that favorable DNA results would have precluded his conviction or prosecution. We affirm.
Appellant's first name is spelled "Jesse" and "Jessie" on various documents and pleadings throughout the record. Because the documents signed by appellant show the spelling of his name to be "Jesse," we will use this spelling in the opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991, appellant was charged with the murder of Lottie Marie Kleam. At trial, evidence showed that appellant was Kleam's housekeeper and had cleaned her apartment just prior to her death. Investigators found no signs of forced entry into Kleam's apartment. Appellant's bloody thumbprint, as well as some strands of Kleam's hair, were found on a bloodstained brick inside the apartment. After the murder, appellant was seen driving a Cadillac similar to Kleam's and attempted to sell auto parts from a Cadillac. Kleam's car was found abandoned in a parking lot five or six blocks from appellant's mother's home. The car's battery, hubcaps, and stereo system were missing when it was found. A jury convicted appellant of murder and sentenced him to life imprisonment. In 1994, this court affirmed his conviction. In 2002, appellant filed a pro se motion for post-conviction DNA testing. In 2003, appellant filed a supplemental motion with the assistance of counsel. In 2004, the trial court denied appellant's request, but did not specify its reasons. Appellant argues that the trial court erred in denying his motion because (1) identity was an issue at trial and (2) a there is a reasonable probability that favorable DNA results would have precluded his conviction or prosecution. LAW AND STANDARD OF REVIEW
A trial court may order forensic DNA testing only if, inter alia, the court finds that (1) evidence still exists and is in a condition making testing possible, and (2) identity was or is an issue in the case. Act of April 3, 2001, 77th Leg. R.S., ch. 3, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2004-05)). Additionally, according to the law in effect when appellant filed his motion in 2002, a convicted person must establish by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Id. In reviewing the trial court's decision, we employ a bifurcated standard of review, affording 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 we review de novo other application-of-law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. Id. The court of criminal appeals has interpreted former article 64.03(a)(2)(A) as requiring that a reasonable probability must exist that exculpatory DNA tests would prove the convicted person's innocence. Kutzner v. State, 75 S.W.3d 427, 438 (Tex.Crim.App. 2002). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). The prospect that the tests would cast doubt is not enough to meet the burden of proof to show a reasonable probability of one's innocence. Id. at 566. DNA testing must conclusively outweigh all other evidence of the convicted person's guilt. See Rivera, 89 S.W.3d at 59. A trial court does not err in denying post-conviction DNA testing where, at most, exculpatory DNA tests would "merely muddy the waters." Eubanks, 113 S.W.3d at 565. APPLICATION OF LAW TO FACTS
Appellant argues that a reasonable probability exists that he would not have been prosecuted or convicted if "DNA testing would have shown the blood comprising the bloody thumbprint on the brick was his own blood and not that of the deceased." He states that because he was Kleam's housekeeper, he could have cut his hand and placed his thumb on the brick at a time other than when Kleam was murdered. He claims that DNA tests could show that the blood with which he made the thumbprint on the brick was his own, proving that he was innocent of the murder. We disagree. Even if DNA testing proved that the blood making up the thumbprint was appellant's rather than Kleam's, it would not prove appellant's innocence. Appellant is doing nothing more than asking for the testing so that he might be able to raise an argument. See Eubanks, 113 S.W.3d at 566 (stating that "it is clear that the convicted person must do more than simply ask for the testing so that he might be able to raise an argument"). DNA testing showing the thumbprint was made up of appellant's blood would merely muddy the waters. Additionally, there was other substantial competent evidence that the jury could have used to convict appellant. Evidence established that appellant was in Kleam's apartment near the time of her murder, that no one had broken into Kleam's apartment, that appellant was seen driving a Cadillac similar to Kleam's after the murder, and that he attempted to sell Cadillac parts to an auto parts store. We conclude that appellant failed to show by a preponderance of the evidence that exculpatory DNA tests would prove his innocence and that the trial court did not err in denying his motion for post-conviction DNA testing. As a result, we need not address his contention that identity was an issue in the case below. We overrule appellant's sole issue. CONCLUSION
Having resolved appellant's sole issue against him, we affirm the trial court's judgment.