In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00145-CR
EX PARTE MOHAMID MAHDI ADBULKADIR
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 52,665-C, Honorable Ana Estevez, Presiding
July 11, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Mohamid Mahdi Abdulkadir, appeals from an order of the trial court
denying his request for post-conviction forensic DNA testing.1 Appellant brings forth
one issue claiming that the trial court abused its discretion in denying his request for
testing. We will affirm.
Factual and Procedural Background
Appellant was indicted on March 22, 2006, for the offense of aggravated sexual
assault of a child.2 Pursuant to a plea bargain agreement, appellant pleaded guilty to
1
See TEX. CODE CRIM. PROC. Ann. ch. 64 (West 2006 & Supp. 2012).
2
See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2012).
the offense on September 2, 2008, and was sentenced to confinement in the
Institutional Division of the Texas Department of Criminal Justice for ten years by a
judgment filed on September 9, 2008. Subsequently, on March 6, 2012, appellant filed
his “Motion for Forensic Examination or in the Alternative Request for Previously DNA
Testing.” The State filed a response requesting the trial court to deny the request. On
March 29, 2012, the trial court entered its order denying appellant’s request. The trial
court’s order denying appellant’s motion found that he had “failed to demonstrate that
he is entitled to post-conviction forensic DNA testing. . . pursuant to [Chapter] 64 of the
Texas Code of Criminal Procedure.” This appeal followed.
Through one issue, appellant contends that the trial court abused its discretion in
denying either appellant’s request for subsequent DNA testing or, in the alternative, for
discovery of the results of the previous DNA testing. Disagreeing with appellant, we will
affirm the order of the trial court.
Analysis
There was no evidence presented in this case; therefore, we review the trial
court’s order de novo. See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002).
The requirements of a motion for forensic DNA testing are set forth in article
64.01 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.
64.01.3 In relevant part, art. 64.01:
(a-1) A convicted person may submit to the convicting court a motion for
forensic DNA testing of evidence containing biological material. The
3
Further reference to the Texas Code of Criminal Procedure will be by reference
to “Article ____” or “art. ____.”
2
motion must be accompanied by an affidavit, sworn to by the convicted
person, containing statements of fact in support of the motion.
Appellant submitted his motion for forensic DNA testing; however, there was no
accompanying affidavit, or even an unsworn declaration, setting forth a statement of
facts in support of the motion. Contained within the motion, in paragraph V, in what we
construe to be the statement of facts in support of his motion, was the following
statement: “Identity is not an issue in this case.”
Article 64.03, “Requirements; Testing,” sets forth when a convicting court may
order forensic DNA testing. See art. 64.03. We are drawn to the provision that says the
convicting court may order “testing under this chapter only if: (1) the court finds that: (B)
identity was or is an issue in the case.” art. 64.03(a)(1)(B). Nothing in the record before
us alleges, much less attempts to show, that identity was or is an issue in the case.
Therefore, the basic requirements for post-conviction forensic DNA testing have not
been met. See Atkins v. State, No. 14-12-00482-CR, 2012 Tex. App. LEXIS 10500, at
*4 (Tex.App.—Houston [14th Dist] Dec. 20, 2012, pet ref’d) (citing Reger v. State, 222
S.W.3d 510, 514 (Tex.App.—Fort Worth 2007, pet. ref’d)). Because identity was not an
issue, the trial court’s decision to deny appellant’s motion was correct. Appellant’s issue
is overruled.
Conclusion
Having overruled appellant’s single issue, the trial court’s order denying the
motion for post-conviction forensic DNA testing is affirmed.
Per Curiam
Do not publish.
3