Opinion
No. 05-07-00131-CR
Opinion Filed July 24, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F93-20131-V.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Michael Dante Garrett, convicted in 1995 of aggravated sexual assault, appeals the denial of his motion for post-conviction DNA testing. In the motion, filed in September 2006, Garrett sought re-testing of biological evidence that was subjected to DNA analysis at the time of trial and "inculpated him at a probability of one in 5.5 billion." The trial court denied the motion, without hearing, on December 13, 2006 and specifically found that (1) newer DNA techniques would not provide a reasonable likelihood of results that are more accurate and probative than those of the tests performed at the time of trial; (2) identity is not, and was not, an issue; and (3) Garrett failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been obtained through DNA testing. In three issues, Garrett now challenges each of the court's findings. We affirm. To be entitled to post-conviction DNA testing, a convicted person must meet the requirements of articles 64.01 and 64.03 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 64.01, 64.03 (Vernon Supp. 2008); Routier v. State, No. AP-75,617, 2008 WL 2486417, at * 2 (Tex.Crim.App. June 18, 2008). Under article 64.01, a convicted person seeking re-testing of biological evidence must demonstrate in his motion for testing that newer techniques would provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. Tex. Code Crim. Proc. Ann. art. 64.01(b)(2); Dinkins v. State, 84 S.W.3d 639, 641-42 (Tex.Crim.App. 2002). To meet this burden, the convicted person must provide statements of fact in support of his claims; general, conclusory statements are insufficient. Dinkins, 84 S.W.3d at 642. Under article 64.03, the convicted person must show that the evidence still exists in a condition making testing possible, identity was or is an issue, and a reasonable probability exists that he would not have been convicted if exculpatory DNA test results had been obtained. Tex. Code Crim. Proc. Ann. art. 64.03(a); Rivera v. State, 89 S.W.3d 55, 59 n. 13 (Tex.Crim.App. 2002). Failure to satisfy any of the requirements of articles 64.01 and 64.03 defeats the motion. See Dinkins, 84 S.W.3d at 642; Rivera, 89 S.W.3d at 59, 61. When, as here, the trial court denies a motion for post-conviction DNA testing without hearing, we review the ruling de novo. Smith v. State, 165 S.W.3d 361, 363 (Tex.Crim.App. 2005). In his first issue, Garrett contends the court erred in denying his motion based on a finding that newer DNA techniques would not provide a reasonable likelihood of more accurate and probative results. In making this argument, Garrett relies on testimony from the expert at trial. Although concluding that the testing showed that Garrett's DNA was found on the victim and the frequency or chance of Garrett's DNA profiling occurring in another person was 1 in 5.5 billion people, the expert pointed out that the evidence she tested had degraded some and that one of six "probes" analyzed did not "quantitatively" match Garrett. Garrett contends that "the fact that the samples were degraded at that time, and that at least one probe did not match [Garrett]" demonstrates the need for re-testing and that the court erred in denying his motion. Noting "DNA technology has advanced considerably since the early 1990s" and that "[n]ewer techniques such as Polymerase Chain Reaction (PCR) replication, short tandem repeat (STR) testing, and mitochondrial DNA analysis" allow "DNA to be acquired and tested from very small and extremely degraded samples of biological evidence," Garrett contends further that the testing employed at trial is "less sophisticated than the newer techniques available now." In response, the State argues Garrett's contentions must fail because he presented no evidence to the trial court that the testing done at trial was inaccurate or flawed nor evidence that newer techniques in fact would provide a more accurate or probative result. We agree with the State. The biological evidence tested at trial included a vaginal swab and smear of the victim and blood samples of the victim and Garrett. This evidence was tested using the "restriction fragment length polymporphism" (RFLP) technique, which according to the expert at trial was "preferable" and "the most discriminatory testing . . . for DNA analysis" at the time. See also Campbell v. State, 910 S.W.2d 475, 478 n. 6 (Tex.Crim.App. 1995) (noting that at time, RFLP was one of two "major types" of DNA testing being performed in country and that RFLP testing in some cases rendered accuracy rate in excess of 99%). Although Garrett argues this testing is "less sophisticated than the testing now," he provided no evidence, expert or otherwise, showing that the newer, "more sophisticated" techniques would in fact result in a more accurate or probative result. Moreover, although Garrett contends the degradation of the evidence and lack of match of one of the probes demonstrates the need for re-testing, Garrett provided no evidence that these factors affected the testing results. Indeed, the record reflects these factors were considered by the trial expert and did not affect her conclusion that the DNA found on the victim was Garrett's. Garrett's arguments are nothing but conclusory statements, insufficient to satisfy his burden. See Dinkins, 84 S.W.3d at 642. As such, we conclude the trial court did not err in denying his motion. We resolve his first issue against him. Our resolution of Garrett's first issue makes it unnecessary for us to address Garrett's second and third issues. See Tex. R. App. Proc. 47.1; Routier, No. AP-75,617, 2008 WL 2486417, at *2. We affirm the trial court's order.
Since its enactment, chapter 64 of the Texas Code of Criminal Procedure has undergone several amendments, most recently in 2007. At the time Garrett filed his motion, the 2003 version was in effect. Because the outcome of our opinion is not affected by the amendments, we cite to the current version for convenience.
In his reply brief, Garrett argues that "[t]he best evidence [he] could bring" to challenge the testing results would be the very thing he sought but the trial court denied: "new DNA testing proving [his innocence]." Of course, a convicted person cannot rely on prospective DNA results to support his motion for testing; he must satisfy all requirements independently before testing can be ordered. Smith, 165 S.W.3d at 363.