Opinion
Nos. 05-04-01022-CR, 05-04-01023-CR, 05-04-01024-CR
Opinion Filed April 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th District Court, Grayson County, Texas, Trial Court Cause Nos. 46294, 46295, 46265. Affirm.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Appellant appeals the trial court's orders denying his motions for post-conviction DNA testing. Appellant was convicted for sexual assault in two cases and aggravated sexual assault in a third case. Appellant filed post-conviction motions for DNA testing in each case. The trial court denied the motions. In a single issue, appellant contends the trial court should have ordered DNA testing on evidence that was previously tested. Under article 64.01, a convicted person may file a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004-05). A motion under article 64.01 must be accompanied by an affidavit, sworn to by the convicted person, containing facts in support of the motion. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004-05). If evidence was previously subjected to DNA testing, the convicted person must demonstrate in his motion that the evidence can be "subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." See Tex. Code Crim. Proc. Ann. art. 64.01(b)(2) (Vernon Supp. 2004-05); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). In this issue, appellant acknowledges that DNA testing was performed on the biological evidence in these cases and that the DNA testing inculpated appellant. He nevertheless asserts the trial court was required to grant his motions because, among other things, the biological material could be subjected to more accurate and probative testing. However, appellant did not make this representation in his motions for DNA testing as required by article 64.01. Nor were appellant's motions supported by affidavit containing facts in support of this ground for granting post-conviction DNA testing. Because appellant's motions did not comply with article 64.01, the trial court did not err in denying them. Dinkins, 84 S.W.3d at 642. In reaching this conclusion, we reject appellant's reliance on the State's response to his motion to show newer testing would be "more accurate and probative." The State responded to appellant's motion with the affidavit of Lorna Beasley, the Texas Department of Public Safety's DNA supervisor. In her affidavit, Beasley stated that, although testing could be done today on the biological evidence that would be more "discriminating" than tests previously performed, it was unlikely based on the testing previously done that any results would be different. Assuming the State's response could cure defects in appellant's motion, we conclude Beasley's affidavit does not establish a reasonable likelihood newer testing techniques would provide "more accurate and probative" results. We resolve the sole issue against appellant and affirm the trial court's orders.