IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
POST-CONVICTION DNA TESTING
FROM THE 248TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY
O P I N I O N
I join Judge Hervey's dissenting opinion because I agree that appellant is not legally entitled to DNA testing at State expense under Chapter 64 of the Texas Code of Criminal Procedure.
That said, one might fairly question the wisdom of the State's position in this case as: 1) appellant's attorneys announced, at oral argument, their willingness to pay all costs associated with the DNA testing; 2) there is nothing in the record to indicate that all of the material that could be subject to DNA testing would be consumed in the testing process and thereby deny either or both parties the ability to conduct further tests should that become necessary; 3) it cannot escape notice that significant concerns have been raised about the Houston Police Department crime lab and its various testing procedures in the recent past; and 4) when appellant filed his request for DNA testing, he had not yet completed his full complement of appellate remedies; thus, voluntarily giving him access to these evidentiary items to conduct DNA testing would not have prolonged the review process.
I continue to believe that Chapter 64 was intended to increase, not limit or decrease, a trial court's authority to permit post-conviction DNA testing. (1) Those who insist upon balancing atop the sharp point of the letter of Chapter 64 law may one day find themselves hoist on their own forensic petard. Sometimes discretion is the better part of valor.
Cochran
Filed: June 29, 2005
1.