Opinion
No. 05-05-00344-CR
Opinion issued January 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-46252-S. Affirmed.
Before Justices WHITTINGTON, WRIGHT and MAZZANT.
MEMORANDUM OPINION
Bernardist Devote Lee appeals the trial court's denial of his motion for DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2005). For the reasons that follow, we affirm the trial court's order denying appellant's motion. A jury convicted appellant of the murder of Brent Lloyd a.k.a. Brent Buford and assessed punishment at confinement for life and a $400 fine. Appellant later filed a motion seeking forensic DNA testing of evidence. The State filed a response, alleging the motion should be denied because identity is not at issue and appellant cannot prove his innocence through DNA testing. Thereafter, the trial judge denied appellant's motion, stating appellant "is not entitled to relief under Chapter 64 of the Code of Criminal Procedure." In his first issue, appellant contends it is "fundamental error for the trial court to deny motion for dna [sic] testing-along with abuse of discreation [sic] and voids out the conviction in [that], without the DNA, the evidence was insufficient to support appellant's conviction." In his second issue, appellant claims that "[w]ithout the DNA the evidence was insufficient to support appellant's conviction." To the extent appellant's issues challenge the sufficiency of the evidence to support his conviction, we conclude we lack jurisdiction to address his complaints. See Tex. Code Crim. Proc. Ann. art. 64.01; see also Lopez v. State, 114 S.W.3d 711, 714-15 (Tex.App.-Corpus Christi 2003, no pet.) (concluding court of appeals had no jurisdiction over appellant's issues regarding exculpatory evidence preceding plea proceeding, ineffective assistance of counsel, or legal and factual sufficiency of evidence because "chapter 64 does not confer jurisdiction over issues other than an appeal of a trial court's findings pursuant to its provisions."). Accordingly, we address only the issue of whether the trial judge erred in denying appellant's motion for DNA testing. When reviewing the trial judge's decision to deny a post-conviction DNA motion, we apply the bifurcated standard of review set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997); Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). We afford almost total deference to a trial judge'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. Riviera, 89 S.W.3d at 59. Article 64.01 provides:
A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.Tex. Code Crim. Proc. Ann. art. 64.01; Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). For evidence not previously subjected to DNA testing, the convicted person must demonstrate in his motion that: (i) DNA testing was not available; (ii) DNA testing was available but not technologically capable of providing probative results; or (iii) through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interests of justice. Tex. Code Crim. Proc. Ann. art. 64.01(b); Dinkins, 84 S.W.3d at 642. Mere allegations are insufficient to establish the above criteria; rather, the convicted person must provide statements of fact in support of his claims. See Dinkins, 84 S.W.3d at 642. Thereafter, the trial judge may order forensic DNA testing if the judge finds (i) 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 the evidence has not been substituted, tampered with, replaced, or altered in any material respect; (ii) identity was or is an issue in the case; (iii) 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 (iv) the request for the proposed DNA testing is not made to unreasonably delay the administration of justice or the execution of sentence. Tex. Code Crim. Proc. Ann. art. 64.03(a). In this case, appellant's motion states (i) there was biological evidence in the possession of the State; (ii) the defense is not aware of any DNA testing done previously; (iii) there is a substantial likelihood testing would show appellant was not guilty; (iv) identity was an issue; and (v) there is a reasonable probability appellant would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. The motion does not contain any factual statements supporting these claims. Appellant's affidavit identifies the evidence as "some blood stains on clothing found at the scene as well as the gun." It then states (i) the evidence was not subjected to DNA testing through no fault of his own and (ii) there is a reasonable probability the DNA evidence would show he did not commit the offense. These allegations and the rest of the affidavit do not set forth statements of fact establishing that, at the time of trial in November 1997, DNA testing was, through no fault of appellant, not performed but required in the interests of justice. See Warren v. State, 126 S.W.3d 336, 338 (Tex.App.-Dallas 2004, no pet.); see Tex. Code Crim. Proc. Ann. art. 64.01(b). Nor does the affidavit raise facts establishing that identity was or is an issue in the case. Because the motion and affidavit contain little more than a general recitation of the generic statutory language, we cannot conclude appellant met the requirements of article 64.01. See Dinkins, 84 S.W.3d at 642. Therefore, we conclude the trial judge did not abuse her discretion in denying appellant's motion. We overrule appellant's first and second issues. We affirm the trial court's order denying DNA testing.