Affirmed and Memorandum Opinion filed May 28, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00441-CR
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DENNIS ALAN JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 775100
M E M O R A N D U M O P I N I O N
A jury convicted appellant Dennis Alan Johnson of aggravated robbery and assessed punishment at fifteen years= confinement. After his conviction became final, appellant filed two motions for post-conviction DNA analysis. The trial court denied these motions. In a single issue, appellant challenges the denial of his motions. Because appellant failed to meet the requirements of chapter 64 of the Texas Code of Criminal Procedure, we affirm.
I. Background
In 1998, a jury convicted appellant of aggravated robbery and sentenced him to 15 years= confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court rendered judgment on the jury=s verdict and his conviction became final in 2002.
In January 2007 and May 2008, appellant filed motions for post-conviction DNA analysis.[1] The State responded by asserting that appellant failed to meet the burden of establishing by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.[2] The trial court heard the motions and denied them in May 2008. Appellant timely appealed.
II. Issue Presented
In appellant=s sole issue, he argues that the trial court erred by denying his motion for post-conviction DNA testing because he established by a preponderance of evidence that, had the results proved exculpatory, he would not have been prosecuted or convicted.
III. Analysis
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). 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. But where, as here, the clerk=s record and affidavit of appellant are the only sources of information supporting the motion, the trial court is in no better position than we are to make its decision, and we review the issues de novo.[3] See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). An appellant bears the burden of satisfying the chapter 64 requirements. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
A court may order forensic DNA testing of evidence only if the court finds (1) evidence, which has been subjected to a sufficient chain of custody to establish its integrity, exists in a condition making DNA testing possible; (2) identity was or is an issue in the case; and (3) the defendant establishes by a preponderance of the evidence that (a) he would not have been convicted if exculpatory results had been obtained through DNA testing, and (b) the request for DNA testing is not made to unreasonably delay the execution of his sentence or interfere with the administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a); Dinkins v. State, 84 S.W.3d 639, 641B42 (Tex. Crim. App. 2002). In this case, the trial court=s findings indicate that some of the physical evidence identified by appellant in his motion existed in a condition making DNA testing possible. The trial court further found that appellant Afail[ed] to show by a preponderance of the evidence that a reasonable probability exists that [he] would not have been convicted if exculpatory results had been obtained through DNA testing.@[4] Thus, the trial court concluded that appellant did not meet the Aburden of proof requirements under article 64.03(a)(2).@ See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2) (requiring that the convicted person show, by a preponderance of the evidence, that he would not have been convicted if exculpatory results had been obtained through DNA testing and that the request for DNA testing was not made to unreasonably delay execution of his sentence or the administration of justice).
Only evidence that qualifies for testing under article 64.01(b) should be included in the Acalculus@ for determining whether an appellant has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Routier v. State, 273 S.W.3d 241, 245 (Tex. Crim. App. 2008). In this case, our analysis begins and ends with consideration of whether appellant=s motion and the evidence identified therein qualify for testing under article 64.01(b).
As is relevant here, for evidence that was not previously subjected to DNA testing, this article provides that a convicted person must demonstrate in his motion that, through no fault of his own, the evidence was not tested but requires testing to satisfy the interests of justice. Tex. Code Crim. Proc. Ann. art. 64.01(b)(1)(B). It is not enough for an appellant to merely assert that the evidence at issue was not subjected to testing through no fault of his own; instead, he must make a Amore particularized@ showing of the absence of fault to properly invoke this subsection. Routier, 273 S.W.3d at 252 (ABut the appellant does not even attempt to argue that she can satisfy [article 64.01(b)(1)(B)] (other than her general no-fault argument, which we have already rejected). She has therefore failed to show she is now entitled to conduct post-conviction DNA testing on the previously untested blood stains. . . .@); Tex. Code Crim. Proc. Ann. art. 64.01(a) (providing motion must be accompanied by affidavit containing factual statements supporting motion).
Like the appellant in Routier, appellant simply states in his motions thatA[t]he evidence was not previously subjected to DNA testing through no fault of the defendant, for reasons that are of a nature such that the interests of justice require DNA testing.@ Appellant=s affidavit provides only that he has Aread the foregoing [motion for DNA testing]. Each and every factual allegation contained therein is true and correct to [his] own personal knowledge, or through official records which [he] has read.@[5] Other than procedural details, there are no facts contained in the motions.[6] Instead, the motions simply reiterate the statutory requirements regarding post-conviction DNA testing.
Under these circumstances, we conclude that appellant has not made the necessary Aparticularized showing@ of the absence of fault in his motion. See Routier, 273 S.W.3d at 245, 252; see also Tex. Code Crim. Proc. Ann. art. 64.01(a) (AThe motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.@ (emphasis added)). Thus none of the items appellant has identified in his motions qualify for testing under article 64.01, and none are included in the Acollective calculus@ for determining whether he would not have been convicted. See Routier, 273 S.W.3d at 245. Accordingly, appellant has not established 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. Ann. art. 64.03(a)(2). The trial court did not err in denying his motions for post-conviction DNA testing.
IV. Conclusion
We overrule appellant=s sole issue and affirm the decision of the trial court.
/s/ Eva M. Guzman
Justice
Panel consists of Justices Yates, Guzman, and Sullivan.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The latter motion differs from the former in that appellant specifies the following items for testing: fingernail scrapings, blood smears Awhich may have been the attacker[=]s,@ turned out pockets Awhich may contain biological tissue identifying the actual person who robbed/murdered complainant,@ door jambs, burglar bars and closet doors, and latent prints. The same affidavit, dated November 17, 2006, is attached to both motions.
[2] Tex. Code Crim. Proc. Ann. art. 64.03(a)(2) (Vernon Supp. 2008).
[3] Although we have a copy of the reporter=s record from the hearing on appellant=s motions, no witnesses testified at this hearing. Instead, on the State=s motion, the trial court admitted the State=s affidavits regarding the status of the evidence from appellant=s trial and heard argument from counsel. The only argument proffered by appellant=s trial counsel is as follows:
Mr. Johnson would like to have the Defendant=s DNA evidence tested to show that he was not at the scene of the crime. He feels that he was not at the scene of the crime. He feels that all the testing that they could possibly - - there is evidence in the State=s possession. And, basically, he=d like to have it tested to prove that he wasn=t there at the scene or he=s also saying that he was innocent.
[4] The trial court made no finding that identity was or is an issue in this case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(B). Nothing in article 64.03 requires the trial court to make such findings when denying a motion for DNA testing. But we focus our analysis on the findings that the trial court did make, although the State identifies numerous other defects in appellant=s motion.
[5] We have previously observed that an affidavit identical to the one provided by appellant here did not satisfy the requirements of article 64.01(a). See Vay v. State, No. 14-06-00080-CR, 2007 WL 705620, at *3 (Tex. App.CHouston [14th Dist.] Mar. 8, 2007, no pet.).
[6] Appellant did attach a copy of this court=s opinion affirming his conviction to his motion. See Johnson v. State, No. 14-98-01349-CR, 2001 WL 306111 (Tex. App.CHouston [14th Dist.] Mar. 29, 2001, pet. ref=d) (not designated for publication). However, nothing in the opinion sheds any light on this particular issue.