Summary
noting that evidence demonstrated that movant and his wife were in same room in which victim was murdered and that wife tried to revive victim and concluding that testing showing presence or absence of victim's blood on wife's clothes would not prove movant's innocence
Summary of this case from In re KellerOpinion
No. 14-03-01057-CR.
Memorandum Opinion filed March 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 766,671. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
This is an appeal from the denial of appellant's post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings three issues challenging the constitutionality of the proceedings and the sufficiency of the evidence to support the trial court's findings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See 47.1. We affirm.
Background
On August 11, 2003, appellant filed a post-conviction motion for DNA testing requesting testing of all biological material in the State's possession from his 1997 trial and conviction for murder. The trial court appointed counsel to represent appellant. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant's motion and provided affidavits and supporting documentation concerning the condition of the evidence. The trial court made findings that appellant failed to establish that identity was or is an issue in this case or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory DNA results were obtained. See Act of April 5, 2001, 77th Leg. R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. arts. 64.03(a)(1)(B), 64.03(a)(2)(A) (Vernon Supp. 2004)). Accordingly, the court denied testing by written order containing its findings and conclusions signed August 27, 2003. Appellant filed a timely, written notice of appeal.Standard of Review and Applicable Law
We review a trial court's decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Accordingly, we afford almost total deference to the trial court's determination of issues of historical fact and the application of law to the fact issues that turn on an evaluation of credibility and demeanor. Id. However, we review de novo the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id. Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established:(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(I) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or 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.Act of April 5, 2001, 77th Leg. R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2004)). By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim. App. 2002).