Opinion
No. 05-05-01170-CR
Opinion issued June 23, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F88-90560-Svk. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Scott Dwayne Young appeals the trial court's denial of his motion for post-conviction DNA testing. In a single issue, appellant argues the trial court erred in denying his motion because exculpatory DNA test results would establish that he is innocent. We affirm the trial court's order. On June 29, 1988, Debra Jones went to purchase crack cocaine at an apartment where she encountered appellant and another man. Jones had seen appellant on "many occasions" and recognized his face. After leaving the apartment, Jones saw another man hand appellant a "long gun" and saw appellant shoot James Jackson multiple times. Although there were "a lot more people" at the scene who saw the shooting, "they wouldn't even talk to the police either." Jackson died from his wounds, and appellant was convicted of murder and sentenced to life imprisonment. In August, 2003, appellant filed a motion for post-conviction DNA testing of blood droplets, shell casings, and a baseball cap taken from the scene of the shooting. The trial court denied appellant's motion on the grounds that identity was not an issue in the case, and it was not established by a preponderance of the evidence that appellant would not have been convicted if exculpatory results were obtained through DNA testing. This appeal followed. In a single issue, appellant argues the trial court erred in denying his motion because exculpatory DNA test results would establish that he is innocent. We review a trial court's decision denying a motion for post-conviction DNA testing under the bifurcated standard of review articulated 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 court's determination of issues of historical fact and application of law-to-fact issues that turn on credibility and demeanor. Rivera, 89 S.W.3d at 59. Application of law-to-fact issues that do not turn on credibility and demeanor are reviewed de novo, including the ultimate question of whether the trial court was required to grant a motion for DNA testing. See id. The scope of evidence that an appellate court may review on appeal from the denial of a post-conviction motion for DNA testing is not limited to evidence relating to the motion and/or hearing on the motion for DNA testing. See Jacobs v. State, 115 S.W.3d 108, 112-13 (Tex.App.-Texarkana 2003, pet. ref'd). Among other things, to obtain post-conviction DNA testing, a convicted person must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2005). In reviewing a trial court's decision on post-conviction DNA testing, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have proven innocence is an application-of-law-to-fact question that is reviewed de novo. Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.); Torres v. State, 104 S.W.3d 638, 640 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The term "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Eubanks, 113 S.W.3d at 565. A trial court does not err in denying post-conviction DNA testing where, at most, exculpatory DNA tests would "merely muddy the waters." Eubanks, 113 S.W.3d at 565 (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002). We conclude appellant did not meet his burden for requesting post-conviction DNA testing in the trial court. Appellant argues that the baseball cap found at the scene belonged to "the perpetrator who walked away" and, if DNA testing showed the absence of appellant's DNA on the baseball cap found at the scene, this would conclusively show appellant did not commit murder. Further, appellant argues the person who loaded the bullets in the gun would have transferred some of his DNA to the shell casings; thus, an absence of appellant's DNA on the shell casings would show he did not commit murder. Finally, appellant argues a showing that the blood samples did not belong to him would demonstrate his innocence. In seeking post-conviction DNA testing, the convicted person must do more than simply ask for DNA testing so that he might be able to raise an argument. Eubanks, 113 S.W.3d at 566 (emphasis in original). The prospect of casting doubt is clearly not enough to meet the burden of proof to show a reasonable probability of one's innocence. Id. Here, the presence or absence of appellant's DNA on the baseball cap or in the blood samples is irrelevant to the issue of whether appellant shot Jackson. In fact, Jones testified there were "a lot more people" at the scene, and there was no evidence as to who may or may not have been wearing the baseball cap found at the scene. Further, Jones testified that a man handed appellant the gun he used to shoot Jackson. Thus, whether or not appellant loaded the gun is irrelevant to the issue of whether appellant used the gun he was given to murder Jackson. Finally, even if all the DNA tests came out as appellant argues, none of this DNA evidence or lack thereof would contradict Jones' testimony that she saw appellant shoot Jackson numerous times. Appellant's voluntary statement, admitted at trial, stated "On June 29, early in the morning I was coming around the corner at Park Row and Holmes when I saw a man. I started chasing him. A group of my friends joined in to help me. He ran over to South Blvd. I fired shots at him. The guy fell down." We note that, at the punishment hearing before the trial court, appellant stated that he had "made mistakes" and would "go back and undo them" if he could. Appellant stated he was "just sorry," implying that he in fact committed the murder with which he was charged. Because we conclude appellant has not shown, as article 64.03 requires, that a reasonable probability exists that exculpatory DNA tests would prove his innocence, we overrule appellant's sole issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.