Opinion
No. 05-04-01858-CR
Opinion Filed November 8, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F88-97195-RJ. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
MEMORANDUM OPINION
A jury convicted Errol Stanley Vickers in 1989 for the aggravated robbery of Jerrell Kerbo, following testimony from Vickers's girlfriend that Vickers had admitted to her that he had robbed Kerbo and struck him on the head with a pipe wrench and evidence that Vickers had sold some of the stolen property. See Vickers v. State, No. 05-89-00213-CR (Tex.App.-Dallas 1990) (pet. ref'd) (not designated for publication). Fourteen years later, after unsuccessful appeals and pursuant to Chapter 64 of the Texas Code of Criminal Procedure, Vickers filed his motion for post-conviction DNA testing of "any and all evidence seized in this case," asserting identity of the perpetrator was and is an issue and that a "reasonable probability" existed that he would not have been prosecuted or convicted if exculpatory results were obtained. See Tex. R. App. Proc. Ann. art. 64.03 (Vernon Supp. Pamph. 2005). Specifically finding against Vickers on both assertions, the trial court denied the motion. Vickers now appeals that order challenging in his first issue the court's finding concerning identity and asserting in a second issue that the court erred in failing to require the State to comply with article 64.02(2) by delivering the evidence to the court or explaining in writing why it could not do so. Vickers does not challenge the court's finding concerning the probability that he would not have been convicted had exculpatory results been obtained. However, before a convicting court may order post-conviction DNA testing under Chapter 64, the movant must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Id. art. 64.03(a)(2)(A); Whitaker v. State, 160 S.W.3d 5, 8-9 (Tex.Crim.App.), cert. denied, 124 S.Ct. 194 (2004); Torres v. State, 104 S.W.3d 638, 640-41 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Vickers's failure to challenge this required finding is dispositive of this appeal. Even if identity was or is at issue and the court erred in failing to require the State to comply with article 64.02(2), the court could not have granted Vickers's motion. See Tex. Code Crim. Proc. Ann. art. 64.03(a). Accordingly, we need not address Vickers's issues. We affirm the trial court's order denying Vickers's motion for post-conviction DNA testing.