Affirmed and Memorandum Opinion filed February 19, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00794-CR
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RICKIE LYNN GRAVES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 29,378-A
M E M O R A N D U M O P I N I O N
Appellant, Rickie Lynn Graves, was indicted on the offense of possession of a prohibited substance in a correctional facility. The jury returned a guilty verdict, and after finding enhancements true, the trial court sentenced appellant to fifty years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant later filed a post-conviction motion for forensic DNA testing of a piece of the State=s evidence. The trial court conducted a hearing and denied the motion. The Seventh Court of Appeals affirmed this denial. Appellant then filed a second motion for forensic DNA testing of the same piece of the State=s evidence. The trial court denied the motion. It is the denial of this second motion for forensic DNA testing that appellant complains of here.
Factual Background
On June 3, 1997, appellant was an inmate in the Central Unit, Texas Department of Criminal Justice, Institutional Division, in Sugarland, Texas. Late in the morning, he was coming into one of the dormitory units when a correctional officer conducted a pat-down search of appellant. Appellant pulled out the contents of his pockets, including his wallet, and handed them to the officer. The officer opened the wallet and found a piece of tissue paper around two tightly wrapped cigarettes. The cigarettes were confiscated and passed through a chain of custody to the Department of Public Safety Crime Lab in Houston, which tested the cigarettes and found them to contain marijuana.
Standard of Review and Applicable Law
We review the trial court's decision to deny DNA testing under a bifurcated standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We defer to the trial court's determination of issues 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. Where, as here, no hearing was held and the trial record and affidavit of appellant are the only sources of information supporting the motion, we will review the issue de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005).
A convicting court may order forensic DNA testing if the court finds 1) the evidence still exists and is in a condition making DNA testing possible; 2) it 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 3) identity was or is an issue in the case. Tex. Code Crim. Proc. art. 64.03(a)(1); Whitaker, 160 S.W.3d at 8. In addition, the convicted person bears the burden of showing by a preponderance of the evidence that he or she would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. art. 64.03(a)(2)(A). Stated differently, A[t]he defendant must prove that, had the results of the DNA test been available at trial, there is a 51% chance that the defendant would not have been convicted.@ Smith, 165 S.W.3d at 364 (quoting House Criminal Jurisprudence Comm., Bill Analysis, Tex. H.B. 1011, 78th Leg., R.S. (2003)). Such a showing is not made if exculpatory test results would Amerely muddy the waters.@ Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
Analysis
All three of appellant=s issues appear to be predicated on the trial court=s use of the following language in its order: AAs the issues raised by the defendant have already been addressed numerous times, his request for DNA testing has already been addressed and he presents no new grounds or reasons for the testing of the DNA[,] it is the decision of this Court to Deny defendant[=]s motion.@ Appellant=s first and third issues are nearly identical and complain that the trial court used the wrong standard of review. The second complains that the court erred in holding that no new grounds or reasons for granting the motion had been brought forth, where there have been developments in the law since appellant=s last motion for post-conviction forensic DNA testing was denied. Regardless of whether the trial court incorrectly relied on a previous ruling or applied an incorrect standard of review, we still affirm the trial court=s judgment because the result is correct. Arnott v. State, 498 S.W.2d 166, 179 (Tex. Crim. App. 1973) (AEven if a trial judge relies upon a wrong ground or gives the wrong reason for a ruling, this Court is not bound to limit its consideration to such a reason if the decision below is correct.@).
Assuming that identity is at issue in a trial where a defendant asserts a defense that he has been framed, appellant still has not shown by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. art. 64.03. If no DNA evidence is recoverable from the marijuana cigarettes, or if the DNA is from someone other than appellant, this would be little or no evidence that appellant did not possess the marijuana cigarettes. It was not alleged by the State that appellant rolled the cigarettes himself. Furthermore, when the marijuana cigarettes were found on appellant, they were wrapped in tissue. Thus, appellant could have possessed them and never have touched them. To the extent that a finding of no DNA or someone else=s DNA could be considered exculpatory, it would not, in light of the trial record, show by a preponderance of the evidence that appellant would not have been convicted of possession. It would, at best, Amuddy the waters.@ See Rivera, 89 S.W.3d at 59. Because we find that the trial court reached the correct result, we overrule all three of appellant=s issues.
Conclusion
Having overruled all of appellant=s issues, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed February 19, 2008.
Panel consists of Justices Yates, Fowler, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).