Affirmed and Opinion filed August 1, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-01018-CR
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CHRISTOPHER JAMES MURPHY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 449021
O P I N I O N
In November 1987, appellant Christopher James Murphy was convicted of aggravated sexual assault and sentenced to sixty-five years in prison. In 2002, he filed a motion seeking forensic DNA testing of biological evidence obtained during the investigation of the assault. The trial court denied the motion, finding that appellant failed to establish that identity was an issue in the case, as required by article 64.03 of the Texas Code of Criminal Procedure. In his sole issue, appellant contends that the trial court erred in denying his post-conviction motion for DNA testing. We affirm.
Standards of Review
Under the version of article 64.03 applicable to appellant=s motion, a trial court is permitted to order forensic DNA testing only if the court finds that (1) the evidence to be tested still exists in a condition making testing possible, (2) the evidence has been subjected to a reliable chain of custody, and (3) identity was or remains an issue in the case. Additionally, in order to be entitled to forensic DNA testing, the convicted person must establish by a preponderance of the evidence that (1) a reasonable probability exists that he or she would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, and (2) the request for testing was not made to unreasonably delay execution of the sentence. Act of April 5, 2001, 77th Leg., R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2, 3, amended by Act of May 9, 2003, 78th Leg., R.S., ch. 13, ' 3, 2003 Tex. Gen. Laws 16 (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2005)).[1] The statute does not require convicted persons to prove their innocence before a court may order DNA testing, but it does require convicted persons to show a reasonable probability exists that exculpatory DNA tests would prove their innocence. Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex. Crim. App. 2002). This showing has not been made where exculpatory test results would merely muddy the waters. Id. at 439. A trial court is not required to hold a hearing prior to making determinations under article 64.03. Rivera v. State, 89 S.W.3d 55, 58B59 (Tex. Crim. App. 2002).
In reviewing the trial court=s denial of post-conviction DNA testing, we afford almost total deference to the court=s determination of historical fact and application‑of‑law‑to‑fact issues that turn on credibility and demeanor, while we review de novo other application‑of‑law‑to‑fact issues. Id. at 59. We review the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence under a de novo standard. Id.
Discussion
In his motion and accompanying affidavit, appellant stated that the identity of the offender was and remains a material issue in the case and that a reasonable probability exists that he would not have been convicted if the evidence had been properly tested and the results revealed. Beyond these rote, conclusory statements, appellant made no factual allegations that if true would establish that identity was an issue or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Thus, appellant=s motion is insufficient to entitle him to DNA testing. See Eubanks v. State, 113 S.W.3d 562, 566 (Tex. App.CDallas 2003, no pet.) (stating Athe convicted person must do more than simply ask for the testing so that he might be able to raise an argument@); Green v. State, 100 S.W.3d 344, 344 (Tex. App.B San Antonio 2002, pet. ref=d) (holding trial court did not err in denying motion for testing where convicted person did not assert any facts supporting his assertion that identity is or was an issue in an affidavit accompanying the motion); In re McBride, 82 S.W.3d 395, 397 (Tex. App.CAustin 2002, no pet.) (holding that trial court did not err in failing to order testing where motion did not contain any factual allegations that if true would support finding that identity was an issue or that a reasonable probability existed as required by article 64.03).
In his brief, appellant posits that (1) the identity of the perpetrator must be proven beyond a reasonable doubt in every criminal prosecution, and (2) identity was an issue in this case because appellant never confessed to the crime. Certainly, in order to convict a particular person for a particular offense, the State must prove beyond a reasonable doubt that the person committed the offense. See, e.g., Moore v. State, 700 S.W.2d 193, 199 (Tex. Crim. App. 1985) (AOf course, the identity of the accused as the wrongdoer is one of the material issues which is raised by the State=s pleading an offense in any charging instrument . . . .@). However, this does not mean that Aidentity@ by itself is an issue in every criminal prosecution. See Wilson v. State, 185 S.W.3d 481, 484-85 (Tex. Crim. App. 2006) (holding identity was not an issue because the convicted person never challenged the issue of identity); see also Eubanks, 113 S.W.3d at 566 n.1 (noting that identity was not an issue where victim was convicted person=s daughter); Morris v. State, 110 S.W.3d 100, 103 (Tex. App.CEastland 2003, pet. ref=d) (holding identity was not an issue because convicted person was victim=s mother=s long-term boyfriend); McBride, 82 S.W.3d at 397 (noting that identity was not an issue where prior DNA test inculpated convicted person). The fact that appellant did not confess to the offense in the present case also does not necessarily mean that identity was an issue. Courts have held that the fact that a defendant confessed to an offense nullified the issue of identity, see, e.g., Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002); however, courts have also held that identity was not an issue for a number of other reasons. See Wilson, 185 S.W.3d at 484-85; Eubanks, 113 S.W.3d at 566 n.1; Morris, 110 S.W.3d at 103; McBride, 82 S.W.3d at 397. Thus, contrary to appellant=s assertions, the mere fact that appellant was prosecuted and did not confess does not mean that identity was an issue in this case.
Appellant=s primary defense at trial was not that he was not the perpetrator of the offense but that no offense had occurred. He admitted to being with the complainant during the period of the alleged assault, but he asserted the complainant fabricated the assault. Additionally, the complainant testified that appellant did not ejaculate during the sexual assault. With these circumstances in mind, it is not apparent how DNA testing of the available evidence could be exculpatory for appellant. Appellant certainly offers no explanation. Cf. Rivera, 89 S.W.3d at 60 (noting that while a positive DNA match might indicate guilt, a negative result would not indicate innocence under the circumstances of the case). We further note that in the original appeal of appellant=s conviction, he did not attack the sufficiency of the evidence as it pertained to identity. See Green v. State, 100 S.W.3d 344, 345 (Tex. App.CSan Antonio 2002, no pet.) (holding identity was not an issue where prior appellate challenge to sufficiency of the evidence was directed to an element other than identity); McBride, 82 S.W.3d 397 (noting same).
Based on the foregoing, we find that appellant has failed to demonstrate that identity was or remains an issue in this case or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Consequently, the trial court did not err in denying appellant=s motion for post-conviction DNA testing. Appellant=s sole issue is overruled.
We affirm the trial court=s order.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed August 1, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s motion is governed by the former version of article 64.03 because appellant filed his motion prior to the effective date of the amendment. See Act of May 9, 2003, 78th Leg., R.S., ch. 13, ' 9, 2003 Tex. Gen. Laws 16, 17.