No. 14-03-00769-CR.
Memorandum Opinion filed March 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 516,028. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
PER CURIAM.
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 one issue challenging the trial court's finding that he failed to 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. We affirm.
Background
On June 18, 2001, appellant filed a post-conviction motion for DNA testing alleging that at the time of his 1989 trial and conviction for aggravated sexual assault of a child, the State possessed DNA samples that were never analyzed, and he requested the trial court order the State to produce the evidence for testing pursuant to article 64.02(2)(B) of the Texas Code of Criminal Procedure. 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 a finding that appellant failed to 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. 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. Art. 64.03(a)(2)(A) (Vernon Supp. 2004)). Accordingly, the court denied testing by written order containing its findings and conclusions signed May 23, 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. The trial court is entitled to make its determination based solely upon appellant's motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Appellant bears the burden of production or persuasion at each stage under Chapter 64. Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.-Dallas 2003, no pet.). 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). Discussion
In his sole issue, appellant asserts the trial court erred in finding that appellant failed to 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. See TEX. CODE CRIM. PROC. ANN. Art. 64.03(a)(2)(A). The Texas Court of Criminal Appeals has interpreted this part of the statute "to mean a reasonable probability exits that exculpatory DNA tests will prove a convicted person's innocence." Kutzner v. State, 75 S.W.3d 427, 438 (Tex.Crim.App. 2002). The trial court found that evidence relating to the offense, including hairs, a t-shirt, a blood sample, and a sheet, are still in existence. There was no finding that any of these items are in a condition making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i). Assuming arguendo that DNA test results might create an exculpatory inference, such an inference does not necessarily conclusively outweigh other evidence establishing appellant's guilt. See Rivera, 89 S.W.2d at 60 (holding absence of DNA under defendant's fingernails and negative result from rape kit would not indicate innocence of capital murder). In some cases, exculpatory post-conviction DNA test results could "merely muddy the waters." See Kutzner, 75 S.W.3d at 439 (recognizing the Act's legislative history shows it was meant to "ensure that a favorable [DNA] test would show that an inmate is innocent, not merely muddy the waters in the case"). Any exculpatory inference that might be revealed by the DNA testing sought in this case would not outweigh the evidence of appellant's guilt. The evidence at trial was that appellant was apprehended by citizens a few blocks from the crime scene after several people saw him coming out of the complainant's bedroom window. We give almost total deference to the trial court's determination issues of historical fact and credibility. See Rivera, 89 S.W.3d at 59. Appellant sought testing of hairs found on the complainant's bed sheet. The evidence at trial showed that three children, including the complainant, slept in the bedroom. The complainant's babysitter also spent considerable time in the home. There was testimony that the babysitter may have had sex with another man in the home, perhaps in the same bed. The family cat lived in the home as well. Furthermore, evidence introduced at trial demonstrated the complainant, her siblings, and her mother lived in a filthy home, littered with trash and clutter. Accordingly, it is not unlikely that hair found on the bed would belong to someone other than complainant or appellant. Appellant also sought testing of hairs recovered from the shirt he wore when arrested. Testimony at trial indicated that when appellant was apprehended shortly after the incident, he was wearing a t-shirt with several hairs on it. Houston Police Department lab personnel examined the hairs and found they were consistent with cat hair, dog hair, appellant's own hair, and other hair found in the complainant's bedroom. Thus, the absence of the complainant's hair would not establish innocence. Finally, appellant sought testing of what appears to be a blood stain on his t-shirt. At trial Houston Police Department lab personnel testified that there was not enough blood present in the stain to determine even a type, and the blood could have come from anywhere. Appellant was a day laborer who was described at trial as, on the evening of the offense, clothed in a pair of "greasy" pants, a "greasy" shirt, and "greasy" shoes. Appellant's wife testified that the blood was appellant's, caused by a cut on his finger earlier that day. Thus, it is entirely possible the blood on the shirt would not be consistent with complainant's blood, and any exculpatory inference from DNA testing would do no more than "muddy the waters." See Kutzner, 75 S.W.3d at 439. Therefore, the absence of the victim's blood on appellant's clothing and identification of the hairs recovered from the sheet and appellant's shirt would not prove appellant's innocence. The trial court did not err in denying DNA testing because appellant failed to prove, by a preponderance of the evidence, that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory DNA results had been obtained. We overrule appellant's sole issue. Accordingly, the judgment of the trial court is affirmed.