Affirmed and Memorandum Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-01057-CR
____________
JOHN CLARENCE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 766,671
M E M O R A N D U M O P I N I O N
This is an appeal from the denial of appellant=s post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings three issues challenging the constitutionality of the proceedings and the sufficiency of the evidence to support the trial court=s findings. 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 August 11, 2003, appellant filed a post-conviction motion for DNA testing requesting testing of all biological material in the State=s possession from his 1997 trial and conviction for murder.[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 concerning the condition of the evidence. The trial court made findings that appellant failed to establish that identity was or is an issue in this case or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory DNA results were obtained. See Act of April 5, 2001, 77th Leg. R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. arts. 64.03(a)(1)(B), 64.03(a)(2)(A) (Vernon Supp. 2004)). Accordingly, the court denied testing by written order containing its findings and conclusions signed August 27, 2003. Appellant filed a timely, written notice of appeal.
Standard of Review and Applicable Law
We review a trial court=s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. 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 the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id.
Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established:
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(I) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that 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.
Act of April 5, 2001, 77th Leg. R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004)).[2] By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
Appellant=s Issues
In his first two issues, appellant argues the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution by (1) conducting a final hearing on the motion without his presence, and (2) denying him the opportunity to confront and cross-examine witnesses.
The First Court of Appeals considered the same issues in Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d), and held them to be without merit. We have followed the reasoning of our sister court in addressing these issues. See Nunez v. State, No. 14-02-00684-CR (Tex. App.CHouston [14th Dist.] June 12, 2003, pet. ref=d) (not designated for publication); Calvin v. State, No. 14-02-01204-CR (Tex. App.CHouston [14th Dist.] October 9, 2003, pet. filed) (not designated for publication); Thompson v. State, No. 14-02-01194-CR (Tex. App.CHouston [14th Dist.] Dec. 11, 2003, pet. filed). We hold appellant=s claims are groundless and overrule issues one and two.
In his third issue, appellant contends the trial court erred in denying his motion for DNA testing. Specifically, appellant claims that the record shows by a preponderance of the evidence that appellant would not have been prosecuted or convicted if exculpatory results had been obtained. See Tex. Code Crim. Proc. Ann. Art. 64.03(a)(2)(A). The Texas Court of Criminal Appeals has interpreted this part of the statute Ato mean a reasonable probability exits that exculpatory DNA tests will prove a convicted person=s innocence.@ Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002).
In this case, appellant sought testing of his estranged wife=s clothes, claiming that the presence of the victim=s blood on them would prove his innocence. The evidence at trial was undisputed that both appellant and his estranged wife were present when the murder occurred. In addition, the wife testified she attempted to revive the victim. Therefore, the absence or presence of the victim=s blood on the wife=s clothing would not prove appellant=s innocence. Evidence of blood on the wife=s clothing could Amerely muddy the waters.@ See Kutzner, 75 S.W.3d at 439 (recognizing the Act=s legislative history shows it was meant to Aensure that a favorable [DNA] test would show that an inmate is innocent, not merely muddy the waters in the case@). The trial court did not err in denying DNA testing because appellant failed to prove, by a preponderance of the evidence, that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory DNA results had been obtained. We overrule appellant=s third issue.
Furthermore, there is an additional reason why the trial court did not err in denying DNA testing. The convicting court must find that Aidentity is or was an issue in the case.@ Tex. Code Crim. Proc. Ann. Art. 64.03(a)(1)(B) (Vernon Supp. 2004). Identity must be in question without considering the possible results of DNA testing. See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002) (AChapter 64 requires that identity >was or is= an issue, not that future DNA testing could raise the issue.@) On appeal, appellant does not challenge the trial court=s finding that identity was not and is not an issue in this case. That finding alone is a sufficient basis for the trial court to deny DNA testing. See Bell, 90 S.W.3d at 306 (holding trial court is not required to grant request for DNA testing unless statutory preconditions are met).
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 Walker v. State, 2 S.W.3d 655 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).
[2] The 2003 amendment to article 64.03(a)(2)(A) applies to motions filed on or after September 1, 2003, and is inapplicable here. All further references will be to the version in effect at the time appellant=s motion was filed.