Opinion
No. 05-06-00577-CR
Opinion Filed July 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F96-45692-MWN.
Before Justices MOSELEY, BRIDGES, and RICHTER.
MEMORANDUM OPINION
A jury convicted Henry Lane Hughes as a party to aggravated robbery and sentenced him to forty years' confinement. This Court affirmed his conviction on direct appeal. See Hughes v. State, No. 05-97-01309-CR (Tex.App.-Dallas Mar. 19, 1999, pet. ref'd) (not designated for publication). In a single issue, Hughes appeals the trial court's order denying his motion for post-conviction forensic DNA testing, asserting his motion alleged actual innocence and that the trial court abused its discretion in denying the motion because evidence existed that could have contained testable biological material. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth herein, we affirm. A convicted person may file a motion for forensic DNA testing of "evidence containing biological material." Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon 2006). The convicting court may order DNA testing only if it finds: (1) the evidence still exists and is in a condition making DNA testing possible and that it 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; (2) identity was or is an issue in the case; and if (3) 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 sentence or administration of justice." Id. art. 64.03(a). In reviewing the trial court's decision to deny DNA testing, we afford 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, and review de novo other application-of-law-to-fact issues. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004); Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). The State accepts the following facts as stated in Hughes's brief. On the evening of April 22, 1996, three individuals approached Tommie Owens at a car wash. Corey Walker walked into the wash bay, pointed a gun at Owens, and said, "[O]ld man, give me your billfold, give me your money." Owens sprayed Walker with water and tried to run, but a second man stopped him. The third individual, a woman, stood at the opposite end of the car wash. Walker shot Owens in the abdomen, at which point the second man and the woman turned Owens over, looked through his pockets, and took his wallet and rings. The group also took Owens's cellular phone. The next day, police officers tracked the cellular phone to a car driven by Walker in which Hughes was a passenger. In the car, police found the gun used to shoot Owens as well as ammunition. Hughes was carrying a pawn ticket listing the rings, which had been pawned by a man who identified himself as Corey Walker. One of the passengers, a co-defendant, testified that Hughes was the second man involved in the robbery and that Hughes had encouraged Walker to approach Owens and shoot him. In response to Hughes's motion for post-conviction DNA testing, the State indicated that its search for evidence yielded only a gold ring, photographs, documents, a firearm, shell casings, and ammunition-items unlikely to contain biological material subject to DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), 64.03(a)(1)(A)(i). The State declined to deliver items of evidence to the trial court. The State further asserted that the trial court should not order DNA testing because identity was not an issue and because Hughes failed to establish by a preponderance of the evidence that he would not have been convicted in light of favorable DNA results. See id. art. 64.03(a)(1)(B), (2)(A). In denying the motion, the trial court found (1) that no biological evidence was collected in the case and (2) that identity was not an issue. See id. art. 64.03(a)(1)(A)(i), (B). Hughes did not identify any specific "evidence containing biological material," either in his motion or in the accompanying affidavit. Id. art. 64.01(a). The State located evidence, but not evidence containing biological material. The trial court found as a historical fact that no biological evidence was collected, and we accord deference to the trial court's finding on this issue. See Rivera, 89 S.W.3d at 59. Hughes relies on Smith v. State, 165 S.W.3d 361, 365 (Tex.Crim.App. 2005), for the proposition that his plea of actual innocence in the motion entitled him to an examination of the recovered ring for testable biological material. However, in Smith, it was clear that evidence containing biological material existed, testimony connected the biological material to a single perpetrator, and the record contained exculpatory facts supporting the appellant's assertion of actual innocence. Id. at 364-65. Here, there is no indication that any of the multiple perpetrators involved in the robbery left biological material on the ring or on any other item of evidence in the state's possession. Furthermore, even if identity may have been an issue, Hughes's motion and affidavit did not satisfy the third statutory requirement: that the desired DNA test results would have defeated his conviction. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). Neither the absence of Hughes's DNA nor the presence of a third party's DNA on the ring or other items would be exculpatory because the testimony implicating Hughes as a party to the incident and the evidence connecting him to the stolen property are not refutable by DNA testing. See Wilson v. State, 185 S.W.3d 481, 486 (Tex.Crim.App. 2006); Whitaker, 160 S.W.3d at 9 (post-conviction DNA testing of blood left on murder weapon could not exculpate appellant where other evidence established his guilt). We conclude Hughes did not meet his statutory burden for obtaining DNA testing in the trial court. Thus, the trial court properly denied Hughes's motion for post-conviction forensic DNA testing. We affirm the trial court's order.