Affirmed and Memorandum Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01060-CR
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WILLIE LEA WRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 701,164
M E M O R A N D U M O P I N I O N
The trial court granted appellant=s post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. After testing, the trial court made findings of fact and conclusions of law that the DNA test results were Anot favorable@ to appellant. In appellant=s sole issue, he complains of the trial court=s finding and attempts to challenge his 1996 conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.
Background
On December 28, 2001, appellant filed a post-conviction motion for DNA testing requesting testing of biological material in the State=s possession from his 1996 trial and conviction for sexually assaulting his then 13-year old daughter, L.W.[1] The trial court appointed counsel to represent appellant. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant=s motion and provided affidavits and supporting documentation of the condition of the evidence. The trial court granted the motion on April 24, 2002. The Texas Department of Public Safety Crime Laboratory examined the complainant=s fingernail scraping, vaginal swab sample, oral swab sample, anal swab sample, and loose evidence collection sample. No DNA evidence remained in any of those samples. DNA was extracted from appellant=s blood stain card and from the complainant=s vaginal smear slides, oral smear slides, and anal smear slides. No DNA profile was obtained from the anal or oral smear slides. Although a partial DNA profile was obtained from the vaginal smear slide, no male DNA was present. On July 11, 2003, the trial court made findings that the results were not favorable to appellant and that no reasonable probability exists that he would not have been prosecuted or convicted if the DNA results had been available before or during the trial. See Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp. 2004). Appellant filed a premature, written notice of appeal. See Tex. R. App. P. 27.1(b) (prematurely filed notice of appeal is deemed filed on the same day, but after, the appealable order is signed).
Standard of Review and Applicable Law
We apply the standard of review established for trial court decisions regarding DNA testing under article 64.03 to challenges to a trial court=s finding under article 64.04 of the Texas Code of Criminal Procedure. Baggett v. State, 110 S.W.3d 704, 705-06 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Appellate courts review a trial court=s decision to deny DNA testing under article 64.03 using a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Accordingly, we afford almost total deference to the trial court=s determination of issues of historical fact and the application of law to the fact issues that turn on an evaluation of credibility and demeanor. Id. However, we review de novo the ultimate question of whether a reasonable probability exists that DNA results are favorable or if it is reasonably probable that, had the DNA results been available before or during trial, appellant would not have been prosecuted or convicted. See id.
If a trial court orders post‑conviction DNA testing under the Texas Code of Criminal Procedure, it has an obligation to determine whether the results obtained are Afavorable to the convicted person.@ Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp.2004). Results are Afavorable@ if, had the results been available before or during the trial of the offense, it is Areasonably probable that the person would not have been prosecuted or convicted.@ Id. In interpreting article 64.03, courts have held the requirement that appellant establish by a preponderance of the evidence that a Areasonable probability exists that [appellant] would not have been prosecuted or convicted@ to mean an appellant must show a reasonable probability that exculpatory DNA tests would Aprove [his] innocence.@ Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex. Crim. App. 2002). We apply the same review to challenges under article 64.04. See Baggett, 110 S.W.2d at 706.
A Areasonable probability@ of innocence exists when there is a Aprobability sufficient to undermine confidence in the outcome.@ Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A Areasonable probability@ of innocence does not exist if there is sufficient evidence, other than the evidence in question, to establish guilt. Rivera, 89 S.W.3d at 60. Thus, a trial court does not err by finding DNA test results Anot favorable@ if the post‑conviction results fail to demonstrate a reasonable probability of innocence and there was sufficient evidence, other than the evidence in question, to establish guilt.
Appellant=s Issue
In his sole point of error, appellant raises several issues relating to his original conviction. Though he asserts the trial court erred in denying relief under his post-conviction DNA motion, the substance of his argument concerns allegations he did not receive a fair trial in 1996 because the prosecutor withheld exculpatory evidence. These issues are outside the scope of an appeal from post-conviction DNA proceedings. Chapter 64 only authorizes the convicting court to order DNA testing. See Wolfe v. State, 120 S.W.3d 368, 371-72 (Tex. Crim. App. 2003) (discussing scope of appeals under article 64.05); State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (same).
To the extent appellant actually seeks habeas relief, this court is without jurisdiction. See, e.g., Watson v. State, 96 S.W.3d 497, 500 (Tex. App.CAmarillo 2002, pet. ref=d) (finding claim that the failure to preserve biological material denied due process was request for application for writ of habeas corpus). We have no original habeas corpus jurisdiction in felony criminal cases. Tex. Gov=t Code Ann. ' 22.221 (Vernon Supp. 2004). To the extent appellant challenges his original conviction, his issues are dismissed.
To the extent appellant contends the trial court erred in finding his DNA test results were not favorable, his argument also fails. The DNA evidence test results, in particular the vaginal smear slide, revealed no male DNA. This result does not establish a reasonable probability of innocence. See Baggett, 110 S.W.2d at 707 (holding test result showing Ainconclusive male pattern@ did not establish a reasonable probability of innocence); see also Rivera, 89 S.W.3d at 56 (no reasonable probability of innocence where no DNA was found under appellant=s fingernails and result from victim=s rape kit was negative). Moreover, the evidence at trial sufficiently established appellant=s guilt. His daughter, L.W., testified that appellant assaulted her. A physical examination at the emergency room confirmed her allegations. L.W.=s mother testified her daughter always had a good relationship with appellant, implying she would have had no reason to falsely accuse him. The trial court did not err in finding that appellant=s DNA test results were not favorable. Had the results been available before or during the trial of the offense, it is not reasonably probable that appellant would not have been prosecuted or convicted. See Tex. Code Crim. Proc. Ann. Art. 64.04 (Vernon Supp. 2004). Appellant=s sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed March 16, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] This court affirmed appellant=s conviction on direct appeal. See Wright v. State, No. 14-96-01559-CR, 1198 WL 724009 (Tex. App.CHouston [14th Dist.] Oct. 15, 1998, no pet.) (not designated for publication).