Opinion
No. 10-04-00147-CR
Memorandum opinion delivered and filed April 13, 2005. DO NOT PUBLISH.
Appeal from the 82nd District Court, Robertson County, Texas, Trial Court # 95-06-15773-CR.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE concurring with note).
"(Justice Vance concurs in the judgment with a note: I do not join this opinion because it does not discuss Williams's contention that the statute allows testing if "identity was or is an issue in the case." He argues that identity is now an issue, even if it was not at trial.)"
MEMORANDUM OPINION
Williams was convicted of aggravated assault with a deadly weapon, namely a revolver. See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon Supp. 2004-2005). Williams appeals the trial court's denial of his motion for forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01-64.05 (Vernon Supp. 2004-2005). We will affirm. In his sole issue, Williams contends that the trial court erred in not finding that "identity was or is an issue in the case." See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B). In reviewing the trial court's decision on a motion for DNA testing, appellate courts must "afford almost total deference to a trial court'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." Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002); see Skinner v. State, 122 S.W.3d 808, 811 (Tex.Crim.App. 2003). "[A] movant does not satisfy his burden under article 64.03 if the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing." Carter v. State, 134 S.W.3d 484, 486 (Tex.App.-Waco 2004, pet. ref'd). Williams' counsel offered the testimony of the arresting officer that Williams spontaneously said that he shot the victim, and gave the officer the revolver he used; and gave a written statement to the same effect. The trial court heard no contradicting evidence. Williams' counsel argued that the revolver should be tested for DNA evidence because Williams was illiterate and unable to give a written statement. The trial court did not abuse its discretion in not finding that identity was an issue in the case. We overrule Williams' issue.
We affirm the judgment.