NO. 12-04-00040-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIAM DAVID TOMPKINS, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
William David Tompkins (“Appellant”) appeals the trial court’s denial of his motion for DNA testing. We affirm.
Background
On May 21, 1992, Appellant was convicted of aggravated sexual assault of a child and was sentenced to forty years of imprisonment. Appellant challenged the conviction in an appeal to the Eleventh Court of Appeals, which affirmed the conviction in a published opinion on January 6, 1994. See Tompkins v. State, 869 S.W.2d 637, 643 (Tex. App.–Eastland 1994, pet. dism’d).
On November 19, 2002, Appellant filed a pro se motion for forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2003). Appellant attached his own affidavit to the motion, stating that, inter alia, 1) he had no documentation that any biological materials obtained during the investigation of his crime were subjected to DNA testing, 2) “[i]dentity was an issue for the conviction [he was] challenging,” 3) “[he] would not have been prosecuted or convicted if exculpatory results had been obtained via DNA testing,” and 4) his request was not made to unreasonably delay the execution of his sentence or the administration of justice. On November 11, 2003, the trial court entered an order setting Appellant’s motion for a hearing on November 25, but the hearing was eventually reset for December 15. The order also stated that Appellant had been appointed counsel in April of 2003 to represent him at any future hearings on the motion.
The State filed a response to Appellant’s motion on December 12, stating that prior to Appellant’s trial, a pair of the victim’s panties were tested for the presence of semen by the Texas Department of Public Safety Crime Laboratory. The results of the test proved negative for the presence of semen on the panties. Specifically, a letter from the Crime Laboratory stated that it was requested to “[p]rocess the [panties] for any physical trace evidence associated with sexual assault” and that “[a] nonspecific presumptive test for the presence of semen was negative on stains in the crotch and on the back of the panties.” Therefore, the State argued that no evidence was available for DNA testing.
On January 2, 2004, the trial court entered an order denying Appellant’s request for DNA testing. In its order, the trial court found that “there is no evidence that any biological materials have been preserved for testing” and that Appellant had failed to meet his burden of proof under section 64.03(a)(2) of the Texas Code of Criminal Procedure.
On January 14, 2004, Appellant filed a “‘Second’ Motion for Forensic DNA Testing.” The clerk’s record shows that the trial court took no action on this motion. On February 2, 2004, Appellant filed a notice of appeal of the trial court’s January 2 order denying his request for DNA testing.
Analysis
The convicting court may order forensic DNA testing only if 1) the court finds that the evidence still exists in a condition making DNA testing possible and has been subjected to a sufficient chain of custody to establish its integrity, 2) identity was or is an issue in the case, and 3) the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that (A) the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and (B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004). In the instant case, the trial court found that no biological materials were preserved for testing and that Appellant failed to meet his burden of proving the elements necessary to obtain the testing under article 64.03.
In reviewing the trial court’s decision, we employ the Guzman bifurcated standard of review by affording 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, while reviewing de novo other application-of-law-to-fact issues. See Rivera, 89 S.W.3d at 59 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The trial court’s determination that a reasonable probability did not exist that exculpatory DNA tests would prove innocence is an application-of-law-to-fact issue that does not turn on credibility and demeanor; therefore, this issue is reviewed de novo. Id.
In his first issue, Appellant argues that the trial court erred when it found “no evidence that any biological materials have been preserved for testing.” In his second issue, Appellant argues that the trial court erred by not requiring the State to explain in writing why it could not deliver the evidence to the court. We need not reach Appellant’s second issue because we hold that the trial court did not err by finding that no evidence existed for testing.
In order to obtain a DNA test, Appellant must demonstrate that there is evidence containing “biological material.” See Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004). The State has shown, by the results of testing done by the Texas Department of Public Safety, that no “physical trace evidence,” including semen, was found in the crotch and on the back of the victim’s panties. Therefore, no “biological material” exists in order to perform a DNA test.
The results of this testing performed by the Texas Department of Public Safety were also published to the jury during Appellant’s trial. Although none of Appellant’s semen was found in the victim’s panties, the jury took this exculpatory evidence into account and still convicted him. Appellant has therefore not shown that 1) identity was or is an issue in the case and 2) he would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. Accordingly, the trial court did not err by denying Appellant’s motion for DNA testing.
Disposition
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered August 31, 2004.
Panel consisted of Worthen, C.J. and Griffith, J.,
DeVasto, J., not participating
(DO NOT PUBLISH)