No. 05-06-00568-CR
Opinion Filed November 2, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F83-81098-N. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG.
Opinion By Justice LANG.
Timothy John Brock appeals the trial court's denial of his motion for post-conviction DNA testing. In his sole issue on appeal, Brock argues the trial court erred when it found that identity was not an issue in the case. We disagree with Brock. The trial court's order denying Brock's motion for post-conviction DNA testing is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 12, 1983, a jury convicted Brock of murder and the trial court assessed his punishment at confinement for life. Brock appealed and this Court affirmed the trial court's judgment. See Brock v. State, No. 05-83-00701-CR (Tex.App.-Dallas Oct. 9, 1984, no pet.) (per curiam) (not designated for publication). On May 14, 2004, Brock filed a motion for post-conviction DNA testing. The State responded that identity was not an issue in the case because Brock confessed to the police, admitted his guilt in open court during the hearing on punishment, was placed at the scene of the murder by his girlfriend, possessed a gun stolen from the crime scene, and did not challenge the sufficiency of the evidence of identity on appeal. There was no hearing on Brock's motion for post-conviction DNA testing. However, after considering the pleadings, the trial court stated in its order that it found that identity was not an issue in the case because Brock repeatedly admitted, to both the police and the trial court, he stabbed the victim, September Bennett, multiple times with a knife. The trial court denied Brock's motion. II. MOTION FOR POST-CONVICTION DNA TESTING
In his sole issue, Brock argues the trial court erred when it found that identity was not an issue in the case and denied his motion for post-conviction DNA testing. Brock argues that, although he confessed to the police and, during the hearing on punishment, took the stand and admitted to the murder, identity is an issue because he also made two written statements stating he had nothing to do with the murder and he did not plead guilty or sign a judicial confession. The State responds that identity was not and is not an issue because Brock's confession was consistent with the testimony of his girlfriend, he was found in possession of a gun stolen from the crime scene, he did not claim his confession was false at trial, and he did not challenge the sufficiency of the evidence to prove identity on direct appeal. A. Standard of Review
When reviewing a trial court's decision on a motion for post-conviction DNA testing, an appellate court affords almost total deference to the trial court's determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor. See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). However, an appellate court reviews a trial court's application-of-law-to-fact issues de novo. See id. When the trial record and the affidavit of the convicted person are the only sources of information supporting the motion for post-conviction DNA testing, an appellate court reviews the trial court's decision on the motion de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex.Crim.App. 2005). B. Applicable Law
A trial court may order post-conviction DNA testing only if: (1) pursuant to Texas Code of Criminal Procedure article 64.03(a)(1) the evidence still exists and is in a condition making DNA testing possible, the evidence 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 identity was or is an issue in the case; and (2) pursuant to Texas Code of Criminal Procedure article 64.03(a)(2) the convicted person establishes by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing and the request for the proposed DNA testing is not made to unreasonably delay the execution of the sentence or the administration of justice. See Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2006). If the trial court finds in the affirmative regarding the requirements listed in article 64.03(a)(1) and the convicted person meets the requirements of article 64.03(a)(2), the trial court shall order the requested post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(c). Article 64.03(a)(1)(B) of the Texas Code of Criminal Procedure requires that identity "was or is" an issue, not that future DNA testing could raise the issue of identity. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B); Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim.App. 2002). Where the convicted person confessed to the crime, identity was never an issue. See Lewis v. State, 191 S.W.3d 225, 228 (Tex.App.-San Antonio 2005, pet. ref'd). Nothing in article 64.03 of the Texas Code of Criminal Procedure requires a hearing concerning the trial court's determination of whether a convicted person is entitled to DNA testing. Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App. 2002). When determining whether to order DNA testing under article 64.03, the trial court may rely on the motion, accompanying affidavits, and the State's written response. See Russell v. State, 170 S.W.3d 732, 733 (Tex.App.-Waco 2005, no pet.). C. Application of the Law to the Facts
When the police arrested Brock, he possessed a gun stolen from Bennett's apartment. Brock was interviewed by a detective and made two written statements denying his guilt. Later, while being interviewed by another detective, Brock made a third written statement in which he confessed to killing Bennett. See Lewis, 191 S.W.3d at 228. During the trial, Brock's statement confessing to the murder of Bennett was read to the jury. Also, Diana Cutrano, Brock's girlfriend, testified she was with him at Bennett's apartment on the morning of the murder. During the hearing on punishment, Brock admitted to the trial court he killed Bennett, but stated he did not know why it happened. On appeal, Brock argued only that statements made by the prosecutor during his trial were improper. Brock, No. 05-83-00701-CR, slip op. at 1. He did not argue that the evidence was insufficient to prove identity. See Green v. State, 100 S.W.3d 344, 345 (Tex.App.-San Antonio 2002, pet. ref'd). Further, in Brock's affidavit accompanying his motion for post-conviction DNA testing, Brock did not state that identity was an issue in his case or assert any facts that would indicate identity was an issue at trial. See Russell, 170 S.W.3d at 734. Accordingly, we conclude the trial court did not err when it found that identity was not an issue in the case and denied his motion for post-conviction DNA testing. Brock's sole issue is decided against him. III. CONCLUSION
The trial court did not err when it found that identity was not an issue in the case and denied Brock's motion for post-conviction DNA testing. The trial court's order denying Brock's motion for post-conviction DNA testing is affirmed.