Affirmed and Memorandum Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00871-CR
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CHARLES LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 839,211
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 six issues challenging 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 May 23, 2003, appellant, through his appointed counsel, filed a post-conviction motion for DNA testing requesting testing of all biological material in the State=s possession from his trial and conviction in 2000 for sexual assault.[1] 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 the Houston Police Department Crime Lab conducted DNA testing of evidence in this case, and the DNA detected on the vaginal swab from the complainant and her clothing was consistent with the DNA of the defendant.[2] The court further found that appellant failed to demonstrate the previously tested materials could be retested with newer, more accurate techniques. See Tex. Code Crim. Proc. Ann. art. 64.01(b)(2) (Vernon Supp. 2004). Finally, the court found that the trial record and direct appeal opinion from this court established appellant admitted he had intercourse with the complainant; therefore, identity was or is not an issue in this case. Accordingly, the court denied testing by written order containing its findings and conclusions signed July 30, 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)).[3] 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).
Dispositive Issue
Appellant asserts in his fourth point of error that the trial court erred in finding identity was not or is not an issue in this case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). Appellant=s motion was defective and did not comply with article 64.01 because he did not assert or establish below that identity was an issue. Appellant admitted at trial he had sexual intercourse with the complainant and admitted that his semen was taken from her. Lopez, slip op. at 3. On appeal, he argues that this admission does not eliminate identity as an issue because he did not admit sexually assaulting the complainant. He argues that new DNA testing might exclude him as the person who sexually assaulted her. Identity must be in question without considering the possible results of DNA testing. See Bell, 90 S.W.3d at 308 (AChapter 64 requires that identity >was or is= an issue, not that future DNA testing could raise the issue.@). We hold the trial court did not err in finding that identity was not or is not an issue in the case. Although this finding alone is a sufficient basis for the trial court to deny DNA testing, a brief discussion of appellant=s remaining issues follows. 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).
Appellant=s Remaining Issues
In his remaining five issues, appellant makes a consolidated argument that the trial court erred in finding he did not satisfy the conditions of article 64.03 of the Code of Criminal Procedure.
The trial court found that the defendant failed to demonstrate the evidence in this case can be subjected to DNA testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous tests. See Tex. Code Crim. Proc. Ann. Art. 64.01(b)(2). Appellant=s only argument is that he was not required to produce any evidence because the State must have already made such a showing when it had the evidence retested in 2003.
The trial court is entitled to make its determination based solely upon appellant=s motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Appellant bears the burden of production or persuasion at each stage under Chapter 64. Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.CDallas 2003, no pet.). Appellant=s motion and affidavit failed to offer any relevant evidence or argument to support its contentions. We hold the trial court did not err in finding appellant failed to demonstrate evidence in this case can be subjected to newer, more accurate DNA testing. We overrule appellant=s first issue.
In his second and third issues, appellant asserts the trial court erred in finding appellant failed to establish evidence exists in a condition permitting testing and it has a sufficient chain of custody. See Tex. Code Crim. Proc. Ann. arts. 64.03(a)(1)(A)(i), 64.03(a)(1)(A)(ii). In light of the trial court=s other findings negating new testing, its failure to find the evidence still exists in testable condition with a sufficient chain of custody is immaterial. Accordingly, we overrule issues two and three.
In his fifth issue, appellant asserts the court erred in finding that he failed to establish by a preponderance of the evidence that he 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, evidence that appellant=s DNA was not present 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@). Appellant admitted to sexual intercourse with the complainant, and we will not disturb the credibility determination regarding her testimony that the sex was not consensual. 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 fifth issue.
Finally, appellant asserts the trial court erred in finding in the negative that the request for DNA testing was not made to unreasonably delay the execution of sentence or administration of justice. See Tex. Code Crim. Proc. Ann. Art. 64.03(a)(2)(B). Appellant=s only argument is that he has been in continuous custody since his arrest in 1999, and he is entitled to request DNA testing under the statute. Because the evidence had been recently tested by an independent laboratory and the earlier results confirmed, the trial court did not err in its implied finding that further testing would delay the administration of justice. Appellant=s sixth 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. See Lopez v. State, No. 14-00-00981-CR (Tex. App.CHouston [14th Dist.] Nov. 1, 2001, pet. ref=d) (not designated for publication).
[2] The record further reflects that the evidence was retested by Identigene in 2003, and retesting confirmed the DNA was consistent with appellant=s DNA. Appellant=s counsel at the hearing on his DNA motion admitted Athis whole thing is moot in light of the retesting.@ Nonetheless, appellate counsel has brought this appeal.
[3] The 2003 amendment to article 64.03(a)(2)(A) applies to motions filed on or after September 1, 2003, and are inapplicable here. All subsequent citations will be to the original statute in effect at the time appellant=s motion was filed.