Opinion
No. 10-04-00066-CR
Opinion delivered and filed February 9, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court McLennan County, Texas, Trial Court # 1993-497-C. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
MEMORANDUM OPINION
This is an appeal from the convicting court's denial of a motion for DNA testing. In 1994, James Long pled guilty to sexual assault and was sentenced to twenty years' confinement. He filed a motion for post-conviction DNA testing under article 64.01 of the Code of Criminal Procedure. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon Supp. 2004-05)). Attached to the motion was Long's affidavit claiming he was not present at the time the victim was raped and murdered. The trial court denied the motion. Long argues on appeal that the trial court applied the wrong standard of proof in denying his motion. The trial court issued eighteen findings of fact and conclusions of law. One of those findings stated: "Defendant fails to prove by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing." Long argues that this finding reflects the standard for motions submitted after September 1, 2003. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2004-05). Prior to the 2003 amendment, article 64.03(a) provided that a convicting court may order forensic DNA testing only if the court finds that "the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. . . ." Long contends that if the court had applied the "reasonable probability" standard, it would have granted his motion. We disagree. A finding of a reasonable probability that the person would not have been prosecuted or convicted is only one of several findings required before a trial court may order DNA testing under article 64.03. The convicting court must also find that the evidence still exists in a condition making DNA testing possible, the evidence has been subjected to a sufficient chain of custody, identity was or is an issue in the case, and the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. The trial court found that identity was and is not an issue in the case. Long does not challenge the court's finding concerning identity. Thus, even if we were to find that the court applied an erroneous standard on the issue of whether Long would have been prosecuted or convicted if DNA testing yielded exculpatory results, we would not reverse the court's decision. We therefore overrule the issue and affirm the judgment.
The 2001 version of the statute applies because Long filed his motion before September 1, 2003. See Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 8, 9, 2003 Tex. Gen. Laws 16, 17 (establishing effective date for amendments to art. 64.01 as Sept. 1, 2003).