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Walker v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2007
No. 05-06-01124-CR (Tex. App. Jul. 12, 2007)

Opinion

No. 05-06-01124-CR

Opinion Filed July 12, 2007. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F92-02704-JH.

Before Justices MORRIS, WRIGHT, and FITZGERALD.


MEMORANDUM OPINION


Gary Walker appeals the trial court's denial of his motion for post-conviction DNA testing. Walker was convicted of murder. At his trial, one witness testified he saw Walker beating the victim and subsequently heard a gunshot. Another witness testified she saw Walker shoot the victim. Walker asserts his innocence and contends that — if he had beaten the victim — he would have left DNA evidence behind. Thus, he argues, DNA testing could exonerate him. Because the dispositive issue is clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's order. Walker relies on Smith v. State, 165 S.W.3d 361 (Tex.Crim.App. 2005), arguing that actual innocence was a contested fact raised in support of his motion for DNA testing. We agree that an assertion of innocence does raise a contested fact issue which, when combined with an appropriate record, may suffice to obtain DNA testing. See id. at 365. However, an assertion of actual innocence alone is not sufficient to obtain testing if the record does not contain facts that would support the petitioner's statutory burden. See Tex. Code Crim. Proc. Ann art. 64.03(a) (Vernon 2006) ("A convicting court may order forensic DNA testing under this chapter only if . . .") (emphasis added). Walker was required to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See id. art. 64.03(a)(2)(A). The relevant evidence available for testing in this case includes an otherwise unidentified "blood sample" and cuttings from the victim's left-hand and right-hand fingernails. If Walker's DNA were found in the blood or under the victim's fingernails, it would further implicate him in this crime. However, if Walker's DNA were not found, it would not indicate he was innocent; it would show only that the victim had not successfully drawn Walker's skin or blood in her defensive struggle. See Rivera, 89 S.W.3d 55, 60 (Tex.Crim.App. 2002). Finally, an absence of Walker's DNA on the victim would not speak in any way to Walker's responsibility for the victim's death by shooting, the basis of his conviction. We conclude Walker has failed to carry his burden to show himself entitled to post-conviction DNA testing. We decide his sole issue against him, and we affirm the trial court's order.

Walker's motion sought testing of "clothing fibers, fingernails and blood left at the scene." The State properly points out that clothing fibers are outside the scope of this inquiry, which pertains only to testing of "biological material." See Tex. Code Crim. Proc. art. 64.01(a).

Likewise, if another person's DNA were found, it would establish only that the victim, at some point in time, had come into contact with that other person. That fact would not exonerate Walker either.


Summaries of

Walker v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2007
No. 05-06-01124-CR (Tex. App. Jul. 12, 2007)
Case details for

Walker v. State

Case Details

Full title:GARY WALKER, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 12, 2007

Citations

No. 05-06-01124-CR (Tex. App. Jul. 12, 2007)