Affirmed and Opinion filed January 20, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00177-CR
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CARL WAYNE CHAMBERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 9408112
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 trial court=s order denying relief. We affirm.
Background
In 1994, appellant entered a plea of guilty to the offense of murder. He was convicted and the court assessed punishment at forty-five years in the Institutional Division of the Texas Department of Criminal Justice. In 2002, appellant filed a motion requesting post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. Appellant sought DNA testing of evidence from the murder including a pistol, thirty-seven live cartridges, one fired cartridge case, and three fired bullets. Appellant contends DNA testing will reveal his co-defendant=s fingerprints on the evidence and will conclusively prove his co-defendant was the triggerman. The State filed a response to appellant=s motion contending that even if DNA evidence were found on the evidence, it would not provide exculpatory results. In other words, even if appellant=s co-defendant=s fingerprints were on the pistol and ammunition, it would not conclusively prove appellant did not participate in the murder. The trial court denied appellant=s motion and filed findings of fact and conclusions of law.
In its findings, the trial court determined appellant failed to (1) show the evidence contained any biological matter on which forensic DNA testing could be conducted, (2) show by a preponderance of the evidence that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, and (3) meet the requirements of article 64.03(a)(2) of the Texas Code of Criminal Procedure concerning his burden of proof.
Appellant filed a notice of appeal in this court challenging the trial court=s ruling. Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response in which he contends the trial court erred in denying his motion for DNA testing because (1) DNA testing should issue when identity is an issue, (2) latent fingerprints are a member of the DNA family to warrant issuance of DNA testing, and (3) the trial court abused its discretion in denying DNA testing when critical exculpatory evidence was destroyed prior to the hearing on appellant=s motion.
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 historical fact issues and the application of law to the fact issues that turn on 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) the person would not have been 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 (Vernon Supp.2004). 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).
Discussion
In his first two issues, appellant contends the trial court erred in denying his motion for post-conviction DNA testing because (1) DNA testing should be conducted when identity is an issue and (2) latent fingerprints warrant DNA testing. Article 64.03(a)(2)(A) of the Code of Criminal Procedure requires the convicted individual to establish by a preponderance of the evidence that a reasonable probability exists that he or she would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. The Court of Criminal Appeals has interpreted that language as meaning a reasonable probability exists that exculpatory DNA tests will prove a convicted individual=s innocence. Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003).
Here, appellant sought testing of a pistol, cartridges, a fired cartridge, and bullets. Assuming the evidence contained biological matter that could be tested for DNA, it would not prove appellant=s innocence. Appellant contends DNA testing would reveal his co-defendant=s fingerprints on the evidence. That alone will not conclusively prove appellant did not participate in the murder. Therefore, appellant failed to meet his burden of showing a reasonable probability that favorable test results would establish his innocence. Appellant=s first and second issues are overruled.
In his third issue, appellant contends the trial court abused its discretion in denying DNA testing when critical exculpatory evidence was destroyed prior to the filing of his motion. Appellant waived this complaint by failing to first raise it in the trial court. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1. Further, the trial court cannot order DNA testing if the evidence does not exist. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2004). Appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Opinion filed January 20, 2005.
Panel consists of Justices Yates, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).