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Kimble v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 28, 2006
No. 05-06-00109-CR (Tex. App. Nov. 28, 2006)

Opinion

No. 05-06-00109-CR

Opinion Filed November 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F95-01655-N.

Before Justices WRIGHT, O'NEILL, and LANG-MIERS.


MEMORANDUM OPINION


Patrick Kimble appeals the trial court's order denying his motion for post-conviction forensic DNA testing under chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 64.01-.05 (Vernon Supp. 2006). After the jury found appellant guilty of Delroy Patrick Dixon's murder, it determined appellant acted under the influence of sudden passion and assessed punishment at forty years' confinement. In an unpublished opinion, this Court concluded appellant's complaints regarding the factual sufficiency of the evidence and jury charge error were without merit and affirmed the trial court's judgment. See generally Kimble v. State, No. 05-95-00841-CR (Tex.App.-Dallas 1997, pet. ref'd) (not designated for publication). Thereafter, appellant filed a motion for post-conviction DNA testing which was denied. This appeal followed. In a single point of error, appellant contends the trial court erred by denying his motion because his motion and affidavit fulfilled the requirements of article 64.01. See Tex. Code Crim. Proc. Ann. art. 64.01. After reviewing the record, we cannot agree. When reviewing the trial court's decision, we employ the familiar bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim App. 1997). Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). 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, while we review de novo other application-of-law-to-fact issues. Rivera, 89 S.W.3d at 59. We must affirm the trial court's ruling if it can be upheld on any valid theory of law applicable to the case-even if the trial court did not base its decision on the applicable theory. See State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex.Crim.App. 1990). Under chapter 64 of the code of criminal procedure, a trial court may order forensic DNA testing only if (1) the evidence still exists, is in a condition making DNA testing possible, and 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 (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." Tex. Code Crim. Proc. Ann. art. 64.03(a). In his request for DNA testing, appellant claimed he was entitled to DNA testing for the following reason:

The murder allegedly occurred during an altercation between two groups of people. One of the people in one of the groups was the sister of [appellant]. [Appellant's] sister wanted someone to get her brother. [Appellant] then arrived and fired his weapon in the defense of a third person, Bran-Bran. That third person could not be located prior to trial. Furthermore, Bran-Bran was being beaten by the deceased with a very large board that was still in his hand at the time of death. The DNA evidence on the board can prove that Bran-Bran was a real person and that [appellant] acted in defense of Bran-Bran.
Defense of another was the only theory appellant claimed entitled him to DNA testing. By raising only an issue about why appellant shot the victim and not arguing about if appellant shot the victim, appellant conceded the issue of identity. Because appellant conceded the issue of identity in his request for DNA testing, we conclude the trial court did not err in denying the motion. Cf. Bell v. State, 90 S.W.3d 301, 309 (Tex.Crim.App. 2002) (identity not an issue where appellant confessed to murder). We overrule appellant's sole point of error. Accordingly, we affirm the trial court's order denying appellant's motion for post-conviction forensic DNA testing.


Summaries of

Kimble v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 28, 2006
No. 05-06-00109-CR (Tex. App. Nov. 28, 2006)
Case details for

Kimble v. State

Case Details

Full title:PATRICK KIMBLE, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 28, 2006

Citations

No. 05-06-00109-CR (Tex. App. Nov. 28, 2006)