Opinion issued March 11, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00325-CR
KAREY STEVEN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 653618
MEMORANDUM OPINION
In 1995, a jury found appellant, Karey Steven Jones, guilty of aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). The trial court assessed appellant’s punishment at 20 years’ confinement in prison. Appellant subsequently filed a motion for post-conviction DNA testing. The trial court denied appellant’s motion and adopted the State’s proposed findings of fact and conclusions of law. We determine whether the trial court erred by finding that appellant had not established by a preponderance of the evidence that he would not have been prosecuted or convicted if a package of cigarettes and a lighter had been tested for DNA. We affirm.
Facts and Procedural History
On November 20, 1992, while working as a convenience store clerk, Steven Mills was held at knife-point by a man demanding the money in the register. The same day, Mills assisted the Baytown Police Department in preparing a composite sketch of the suspect and identified appellant as the convenience store robber through a photographic line-up. In 1995, a jury found appellant guilty of aggravated robbery, and the trial court assessed his punishment. See Jones v. State, No. 14-95-00403-CR (Tex. App.—Houston [14th Dist.] April 3, 1997, pet. ref’d) (not designated for publication). In 1997, the Fourteenth Court of Appeals affirmed appellant’s conviction. Id.
On August 28, 2001, appellant filed a motion for DNA testing to be conducted on a package of cigarettes and a lighter that the robber had purportedly left on the counter after the robbery. Appellant argued that if the biological matter contained on the cigarette package or lighter was tested for DNA, the results would prove that he had not committed the robbery. The trial court denied appellant’s motion on March 12, 2003, based on its finding that appellant had failed to meet the requirements for post-conviction DNA testing.
Standard of Review
In reviewing the trial court’s decision, we afford almost total deference to the lower court’s decision regarding historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). The question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is, therefore, reviewed de novo. Id.
Reasonable Probability
In his sole point of error, appellant asserts that the trial court erred in denying his motion because he had met the burden of showing that a reasonable probability existed that he would not have been convicted if the cigarette package and the lighter had been tested for DNA. Appellant argues that if these two items were tested, it would have proven that he was not at the scene of the crime.
The Texas Code of Criminal Procedure provides the convicting court with guidelines for determining when post-conviction DNA testing is appropriate. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon 2003). Article 64.03(a)(2)(A) requires that a convicted person show that a reasonable probability exists that exculpatory DNA tests would prove his innocence. Id. art. 64.03(a)(2)(A); Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). The required showing has not been made if the exculpatory test results would “merely muddy the waters.” Rivera, 89 S.W.3d at 59.
Although the presence of appellant’s DNA on the package of cigarettes or the lighter could indicate appellant’s guilt, the absence of such DNA would not necessarily indicate that appellant did not commit the robbery. See id. at 60 (holding that “while the presence of the child’s DNA under appellant’s fingernails could indicate guilt, the absence of such DNA would not indicate innocence.”). Moreover, Mills testified that appellant pulled a knife on him as soon as Mills had laid the package of cigarettes on the counter, so that appellant apparently never touched the package. Mills also identified appellant as the robber in a photographic line-up and at appellant’s parole-revocation hearing. Thus, even if appellant’s DNA were not found on the package of cigarettes or the cigarette lighter, or if someone else’s DNA were found on either item, the DNA evidence would not provide a reasonable probability that appellant did not commit the robberies. The DNA evidence would “merely muddy the waters.” Kutzner, 75 S.W.3d at 439.
Because appellant has not shown that there is a reasonable probability that exculpatory DNA testing of the cigarette package and the lighter would prove his innocence, we hold that the trial court did not err in denying appellant’s post-conviction motion for DNA testing.
We overrule appellant’s sole point of error.
Conclusion
We affirm the trial court’s order denying appellant’s request for post-conviction DNA testing.
Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).