Opinion
No. 05-04-00586-CR
Opinion issued April 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-00159-T. Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Jimmy Lee Moorefield appeals the trial judge's order denying his motion for post-conviction DNA testing. In two issues, appellant contends the trial judge abused his discretion in denying his motion because the motion met the requirements of the code of criminal procedure and he established identity was an issue. We affirm the trial court's order. In his first issue, appellant contends the trial judge abused his discretion in denying the motion for post-conviction DNA testing because his motion met the requirements of article 64.01 of the code of criminal procedure. We disagree. 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 (Vernon Supp. 2004-05); 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) (Vernon Supp. 2004-05); 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. 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. Appellant's affidavit identifies the evidence as a vaginal swab and smear and a telephone cord and states (i) the evidence, to the "best of [appellant's] recollection," was not tested 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 affidavit evidence do not set forth statements of fact establishing that, at the time of trial in February 2000, DNA testing was (i) not available; (ii) available, but not technologically capable of providing probative results; or (iii) 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) (Vernon Supp. 2004-05). 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 his discretion in denying appellant's motion. We overrule appellant's first issue. In light of our disposition of this issue, we conclude we need not reach appellant's second issue in which he claims the trial judge erred in denying the motion because appellant established identity was an issue. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(ii)(B) (Vernon Supp. 2004-05); Tex.R.App.P. 47.1. We affirm the trial court's order.