in Re Guadalupe Padilla

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00388-CR

In re Guadalupe Padilla

FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-95-952802, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING

MEMORANDUM OPINION

Guadalupe Padilla, who is serving concurrent prison sentences for two child

sexual abuse offenses, appeals the trial court’s order denying his motion for subsequent

postconviction forensic DNA testing under Chapter 64 of the Code of Criminal Procedure and

his motion requesting the appointment of counsel for the Chapter 64 proceeding. See Tex. Code

Crim. Proc. arts. 64.01(a-1), (c). We will affirm.

BACKGROUND1

In 2002, a jury found Padilla guilty of aggravated sexual assault of a child and

indecency with a child by sexual contact for sexually abusing his girlfriend’s eleven-year-old

daughter in 1994, see Tex. Penal Code §§ 22.021(a)(1)(B), 21.11(a)(1), and sentenced him to

1 The facts of this case have been discussed in prior opinions of this Court, see Padilla v.
State, No. 03-12-00300-CR, 2013 WL 3185896, at *1–2 (Tex. App.—Austin June 20, 2013, pet.
ref’d) (mem. op., not designated for publication); Padilla v. State, No. 03-02-00345-CR,
2003 WL 21401256, at *1 (Tex. App.—Austin June 19, 2003, pet. ref’d) (mem. op., not
designated for publication), so we do not repeat them in this opinion except as necessary to
advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P.
47.1, 47.4.
thirty-seven years’ and fifteen years’ imprisonment, respectively, see id. §§ 12.32, 12.33; Padilla

v. State, No. 03-02-00345-CR, 2003 WL 21401256, at *1 (Tex. App.—Austin June 19, 2003,

pet. ref’d) (mem. op., not designated for publication). This Court affirmed Padilla’s convictions

on appeal. See id. at *5.

In 2004, Padilla began filing requests for the appointment of counsel to assist him

in seeking postconviction forensic DNA testing. See Tex. Code Crim. Proc. arts. 64.01–.05.

After his second request for appointed counsel was denied, Padilla appealed the trial court’s

decision. This Court reversed the trial court’s order denying appointed counsel and held that

Padilla was entitled to the appointment of counsel.2 See In re Padilla, No. 03-07-00712-CR,

2008 WL 2468735 (Tex. App.—Austin June 18, 2008, no pet.) (mem. op., not designated for

publication). The trial court subsequently granted Padilla’s motion for DNA testing; Padilla

attempted to appeal the order granting testing.3 Concluding that an order granting DNA testing

is not a final appealable order under Chapter 64, this Court dismissed that appeal for want of

jurisdiction. See Ex parte Padilla, No. 03-10-00667-CR, 2010 WL 5019166, *1–2 (Tex. App.—

Austin Dec. 10, 2010, pet. ref’d) (mem. op., not designated for publication). After the DNA

2 At that time, due to a recently issued opinion by the Court of Criminal Appeals,
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007), the State conceded Padilla’s
entitlement to appointed counsel in its brief and joined in the request for remand to the trial court
for the appointment of counsel. This Court’s opinion was issued before the Court of Criminal
Appeals issued its opinion in Gutierrez v. State, which held that the trial court’s decision to deny
appointed counsel under article 64.01(c) is not an immediately appealable order. See Gutierrez
v. State, 307 S.W.3d 318, 319 (Tex. Crim. App. 2010).
3 This Court’s opinion reflected that the trial court ordered DNA testing in June 2009,
March 2010, and September 2010, and that Padilla sought to appeal the September order.
Ex parte Padilla, No. 03-10-00667-CR, 2010 WL 5019166, at *1 (Tex. App.—Austin
Dec. 10, 2010, pet. ref’d) (mem. op., not designated for publication). The opinion indicated that
it was unclear from the record why Padilla sought to appeal the order granting his request for
testing, although the opinion noted that in his notice of appeal, Padilla complained of appointed
counsel’s “defective representation.” Id. at *1 n.1.
2
testing was completed, the trial court concluded in its final order, issued in July 2011, that “the

results of the post-conviction DNA testing were not exculpatory and that it was not reasonably

probable that Padilla would not have been convicted had those results been available during his

trial.” See Padilla v. State, No. 03-12-00300-CR, 2013 WL 3185896, at *2 (Tex. App.—Austin

June 20, 2013, pet. ref’d) (mem. op., not designated for publication). No appeal was taken from

that order. See id.

In August 2011, Padilla filed a pro se motion for subsequent DNA testing and,

two months later, another pro se request for the appointment of counsel under Chapter 64. See

id. In March 2012, the trial court entered orders denying Padilla’s motion for subsequent DNA

testing and his subsequent request for the appointment of counsel. See id. In 2013, this Court

affirmed the trial court’s order denying Padilla’s motion for subsequent DNA testing and

concluded that the trial court’s decision to deny Padilla’s subsequent request for appointed

counsel was not error.4 See id. at *9–10.

4 Padilla filed a separate notice of appeal of the trial court’s order denying his request for
appointed counsel. We dismissed that appeal for want of jurisdiction, and, instead, addressed
Padilla’s complaint about the court’s refusal to appoint counsel in his appeal of the trial court’s
order denying his motion for subsequent DNA testing. See Padilla v. State, 03-12-00299-CR,
2013 WL 3185896, at *3, *9–10 (Tex. App.—Austin June 20, 2013, pet. ref’d); see
also Whitfield v. State, 430 S.W.3d 405, 408 n.11 (Tex. Crim. App. 2014) (stating that trial
court’s decision to deny appointed counsel in Chapter 64 proceeding is preliminary matter that is
not immediately appealable; rather, convicted person may raise any alleged error in trial court’s
refusal to appoint counsel in appeal of trial court’s denial of motion requesting DNA testing)
(citing Gutierrez, 307 S.W.3d at 323).

Padilla had also filed in the trial court, five motions in connection with his request for
subsequent DNA testing, the denial of which he attempted to appeal. We dismissed that appeal
for want of jurisdiction, concluding that the trial court’s denial of those five ancillary motions did
not fall within the purview of Chapter 64 and was, therefore, not reviewable on appeal under
article 64.05. See Padilla v. State, 03-12-00301-CR, 2013 WL 3185896, at *4 (Tex. App.—
Austin June 20, 2013, pet. ref’d).

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 In the years that followed, Padilla continued to file additional pro se motions for

DNA testing and other pleadings. In August 2016, Padilla filed another pro se motion for

subsequent DNA testing and another request for appointed counsel under Chapter 64, which, the

record indicates, the trial court denied in December 2016. No appeal was taken from that order.

In November 2017, Padilla filed a Motion to Compel Discovery of Forensic Evidence / Reports

and Request for a Hearing under the 2013 amendments to article 39.14 of the Code of Criminal

Procedure, also known as the Michael Morton Act, and he attempted to appeal the “denial by

operation of law” of that motion. See Padilla v. State, No. 03-18-00065-CR, 2018 WL 3118542,

at *1 (Tex. App.—Austin June 26, 2018, no pet.) (mem. op., not designated for publication).

This Court dismissed Padilla’s appeal of that order for want of jurisdiction. See id. at *2

(concluding that “there is no statutory provision authorizing an appeal from the denial of a

motion to compel discovery filed under article 39.14” and therefore this Court “ha[d] no

appellate jurisdiction”).5

In August 2018, Padilla filed another pro se motion for subsequent postconviction

forensic DNA testing along with another motion requesting the appointment of counsel. In

5 In addition, Padilla has filed multiple applications for writ of habeas corpus in state
court, all of which have been either denied or dismissed without written order by the Court of
Criminal Appeals, see Tex. Code Crim. Proc. art. 11.07, §§ 4, 5; see, e.g., In re Guadalupe
Padilla, No. WR-61,391-14 (denied on May 8, 2019); In re Guadalupe Padilla,
No. WR-61,391-13 (dismissed on Sept. 13, 2017); In re Guadalupe Padilla, No. WR-61,391-10
(dismissed on June 7, 2017); In re Guadalupe Padilla, No. WR-61,391-09 (denied on
July 20, 2016); In re Guadalupe Padilla, No. WR-61,391-08 (denied on Feb. 11, 2015); In re
Guadalupe Padilla, No. WR-61,391-06 (dismissed on May 22, 2013); In re Guadalupe Padilla,
No. WR-61,391-05 (dismissed on Nov. 5, 2008); In re Guadalupe Padilla, No. WR-61,391-03
(denied on Mar. 29, 2006); In re Guadalupe Padilla, No. WR-61,391-02 (denied on
Aug. 17, 2005), as well as applications for writ of habeas corpus and other pleadings in federal
court, see, e.g., Padilla v. Moore, No. A-18-CA-099-RP, 2018 WL 1419344 (W.D. Tex.
Mar. 22, 2018) (magistrate’s report and recommendation of dismissal of Padilla’s complaint
under 42 U.S.C. § 1983); Padilla v. Davis, No. A-16-CA-975-SS, 2016 WL 7413526 (W.D. Tex.
Dec. 20, 2016) (order denying Padilla’s application for writ of habeas corpus).
4
September 2018, he filed several discovery motions in which he sought the victim’s medical

records, including the medical report from when the child was examined by the sexual assault

nurse examiner at the hospital (the SANE report) and medical records (or hospital records)

concerning an unrelated sexual assault alleged to have been perpetrated against the child by her

stepfather. Padilla also filed several motions seeking a “discretionary evidentiary hearing.”

When the trial court failed to immediately act on Padilla’s motions for DNA

testing and for the appointment of counsel, Padilla sought mandamus relief from this Court. His

first petition for writ of mandamus was denied because Padilla failed to provide a sufficient

mandamus record. See In re Padilla, No. 03-19-00100-CV, 2019 WL 988322, at *1 (Tex.

App.—Austin Feb. 28, 2019, orig. proceeding). His subsequent petition for writ of mandamus

was dismissed as moot because the trial court had ruled on his motions for DNA testing and for

the appointment of counsel. See In re Padilla, 03-19-00256-CV, 2019 WL 1969518, at *1 (Tex.

App.—Austin May 3, 2019, orig. proceeding).

On April 29, 2019, the trial court entered an order denying Padilla’s August 2018

motion for subsequent DNA testing and his August 2018 motion requesting appointed counsel.

Padilla appeals the trial court’s order.

DISCUSSION

Padilla raises four points of error on appeal. In his first point of error, he argues

that the trial court erred in denying his motion for subsequent DNA testing and his motion

requesting appointed counsel. In his second point of error, he maintains that the trial court erred

in failing to exercise jurisdiction over “extrajudicial proceedings” that, he contends, are related to

his Chapter 64 proceeding. In his third point of error, Padilla challenges the sufficiency of the

5
evidence supporting this Court’s prior determinations concerning previous DNA testing in his

case. Finally, in his fourth point of error, he complains about the trial court’s denial of, or failure

to rule on, his discovery and hearing-request motions.

Denial of Motions

Subsequent DNA Testing

We review a trial court’s decision to deny a motion for postconviction DNA

testing under a bifurcated standard of review. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim.

App. 2017); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard, we

afford almost total deference to a trial court’s determination of issues of historical fact and its

application of the law to fact issues that turn on determinations of witnesses’ credibility and

demeanor, but we review de novo the trial court’s application of the law to fact issues that do not

turn on determinations of witnesses’ credibility and demeanor. Reed, 541 S.W.3d at 768–69;

Holberg v. State, 425 S.W.3d 282, 284–85 (Tex. Crim. App. 2014). However, where, as here,

the trial 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. Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005) (because trial court

did not hold live hearing on request for DNA testing, reviewing court conducted de novo review

as trial court was in no better position to determine issues).

Under Chapter 64 of the Code of Criminal Procedure, “[a] convicted person may

submit to the convicting court a motion for forensic DNA testing of evidence that has a

reasonable likelihood of containing biological material.” Tex. Code Crim. Proc. art. 64.01(a-1).

Several requirements must be met in order to obtain DNA testing under Chapter 64, and the

6
convicting court may order forensic DNA testing only if the statutory preconditions are met. See

id. arts. 64.01, 61.03; see also Hall v. State, 569 S.W.3d 646, 655 (Tex. Crim. App. 2019)

(confirming that to be entitled to postconviction DNA testing, “a convicted person must satisfy

the requirements of Chapter 64 of the Code of Criminal Procedure”); cf. Ex parte Gutierrez,

337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (summarizing statutory requirements of Chapter

64). When requesting testing for evidence that was previously subjected to DNA testing, the

convicted person must show that although previously subjected to DNA testing, the evidence

“can be subjected to testing with newer techniques that provide a reasonable likelihood of results

that are more accurate and probative than the results of the previous test.” See Tex. Code Crim.

Proc. art. 64.01(b)(2); Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). To meet

the burden of the Chapter 64 requirements, the convicted person must provide statements of fact

in support of his claims; general, conclusory statements are insufficient. See Routier v. State,

273 S.W.3d 241, 255 (Tex. Crim. App. 2008); Dinkins, 84 S.W.3d at 642; see also Swearingen

v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010) (stating that “a mere assertion or a general

claim” will not satisfy Chapter 64 burden).

In his motion for subsequent DNA testing, Padilla requested that “‘ALL’ forensic

evidence – the forensic biological evidence and the forensic documentary evidence” be included

“for consideration with DNA re-calculation and re-analysis.” The basis for the motion was a

Brady notice from the Travis County District Attorney dated January 7, 2016, that informed

Padilla that his case “might possibly be impacted by recent scientific developments relating to

DNA evidence.” See Brady v. Maryland, 373 U.S. 83, 87 (1963) (establishing that due process

requires prosecutors to disclose exculpatory, material evidence to defendant). The notice was

based on a letter from the Texas Forensic Science Commission (TFSC) dated August 21, 2015,

7
which advised members of the Texas criminal-justice community of concerns about the

statistical population database used to calculate DNA match statistics and that corrections had

been made to the FBI allele frequency data. The letter explained that the widely accepted

consensus was that the database corrections had no impact on the threshold question of whether

an individual was included or excluded in any DNA test result. The letter also addressed the

impact of the database corrections on DNA mixture interpretation that used a type of statistical

calculation known as Combined Probability of Inclusion/Combined Probability of Exclusion

(CPI/CPE).6 Along with the Brady notice and TFSC letter, the State provided a letter and form

from the Capital Area Private Defender Service (CAPDS) to assist Padilla in obtaining

re-calculation of the DNA test results in his case if he so chose. A letter from CAPDS to Padilla,

which he attached to his motion for subsequent DNA testing, indicates that he sought re-

calculation of the DNA test results in his case with the assistance of CAPDS.

The State filed a response to Padilla’s motion for subsequent DNA testing,

arguing that Padilla did not meet his burden to establish that he was entitled to retesting under

Texas law. Specifically, the State noted that the re-evaluation had already been conducted in this

6 Specifically, the letter explained that empirical testing conducted to assess the
statistical impact of the corrected data

concluded that the difference between profile probabilities using the original data
and the corrected data is less than a two-fold difference in a full and partial
profile. Testing performed by Texas laboratories also supports the conclusion the
difference is less than two-fold. For example, in an assessment performed by one
Texas laboratory, the maximum factor was determined to be 1.2 fold. In other
words, after recalculating cases using the amended data, the case with the most
substantially affected Combined Probability of Inclusion/Exclusion (“CPI”)[ ]
statistical calculation (evaluated for a mixed sample) changed from a 1 in
260,900,000 expression of probability to a 1 in 225,300,000 expression
of probability.
8
case, and the re-evaluation report reflected that CPI was not used for statistical analysis in

this case.7

In its April 2019 order, the trial court found that:

1. Applicant’s biological evidence has already been tested and his motion for
post-conviction DNA testing fails to show that newer testing methods are
available that provide a reasonable likelihood of results that are more
accurate and probative than the results of the previous test.

2. Applicant has not established that a reasonable ground exists for the filing
of a motion for post-conviction DNA testing.

Therefore, the court concluded that Padilla failed to satisfy the requisites for retesting under

article 64.01(b) and, further, that he failed to demonstrate that he was entitled to appointed

counsel under article 64.01(c). Based on these conclusions, the court denied Padilla’s motions.

The record supports the trial court’s fact findings and legal conclusions; it

demonstrates that Padilla failed to meet the statutory requirements of Chapter 64.8

7 Attached to its response, the State provided a copy of the CPI Evaluation Laboratory
Report issued on March 23, 2017, which stated: “This case was evaluated in accordance with the
Criteria for the Evaluation of DNA Mixture Interpretation document issued by the Texas
Forensic Science Commission on 10/15/2015. CPI was not used for statistical analysis in this
case; therefore reinterpretation may not be necessary.”
8 Initially, we note that a motion for forensic DNA testing must be accompanied by “an
affidavit, sworn to by the convicted person, containing statements of fact in support of the
motion.” See Tex. Code Crim. Proc. art. 64.01(a-1); see Dunning v. State, 572 S.W.3d 685, 697
(Tex. Crim. App. 2019) (explaining that defendant “must include an affidavit” when filing
motion to obtain DNA testing). Although Padilla’s motion is not accompanied by the required
affidavit, it contains an “unsworn declaration” in which Padilla swears “under penalty of
perjury” that the facts contained in the motion are “true and correct.” This Court has previously
held that similar verification was sufficient to satisfy the affidavit requirement. See In re Fain,
83 S.W.3d 885, 889 n.4 (Tex. App.—Austin 2002, no pet.); see also Tex. Civ. Prac. & Rem.
Code § 132.001(a) (allowing “unsworn declaration” to be used in lieu of affidavit). Although
Padilla’s declaration does not include his date of birth, we conclude that it nevertheless
substantially complies with the statutorily prescribed declaration form. See Tex. Civ. Prac.
& Rem. Code § 132.001(e) (setting out prescribed declaration form for inmate); see also Bahm
9
 First, Padilla failed to identify what evidence should be retested. In his motion,

when discussing the history of his case, Padilla described all of the previously tested evidence—

what was tested initially before trial and what was later tested in the Chapter 64 proceeding—but

he failed to specify any particular item of evidence containing biological material that should be

subjected to further DNA testing. See Jones v. State, 161 S.W.3d 685, 688 (Tex. App.—Fort

Worth 2005, pet. ref’d) (“To meet the requirements of article 64.01, an appellant must clearly

state, at a minimum, what evidence he wants tested.” (citing Dinkins, 84 S.W.3d at 642)).

Rather, Padilla simply requested that “‘ALL’ forensic evidence – the forensic biological

evidence and the forensic documentary evidence” be included “for consideration with DNA re-

calculation and re-analysis.”

Further, Padilla’s overbroad request for “all” evidence to be retested included

evidence that, contrary to Padilla’s contention, is not within the purview of Chapter 64. “Article

64.01 requires that the item sought to be tested ‘contain[ ] biological material.’” Holberg,

425 S.W.3d at 285 (citing Tex. Code Crim. Proc. art. 64.01(a–1)). For purposes of the statute,

“biological material”:

(1) means an item that is in possession of the state and that contains blood,
semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily
fluids, or other identifiable biological evidence that may be suitable for
forensic DNA testing; and

(2) includes the contents of a sexual assault evidence collection kit.

v. State, 219 S.W.3d 391, 393 (Tex. Crim. App. 2007) (explaining that requirements of “unsworn
declaration” “are simply that the unsworn declaration must be (1) written and (2) ‘subscribed by
the person making the declaration as true under penalty of perjury’” and clarifying that only
substantial compliance with prescribed form in statute is necessary).
10
Tex. Code Crim. Proc. art. 64.01(a). Padilla’s request for the testing of “forensic documentary

evidence,” such as the SANE report or hospital records, does not meet this definition. While

“biological material” includes the contents of a sexual assault evidence kit, it does not include a

report detailing the collection of that evidence or records describing the exam during which the

evidence was collected—that is, documents about the contents of a sexual assault kit.

In addition, Padilla did not explain whether the evidence sought to be retested still

exists and is in a condition capable of being tested. See id. art. 64.03 (a)(1)(A) (requiring

convicted person to establish that evidence still exists and is in condition making DNA testing

possible and that evidence has been subjected to sufficient chain of custody to establish

its integrity).

Moreover, Padilla provided no evidence, description, or explanation of “new

testing techniques” that would provide a likelihood of a more accurate and probative result than

the previous testing that has already been done in this case. See id. art. 64.01(b)(2); see, e.g.,

Routier, 273 S.W.3d at 251 (holding that convicted person’s motion satisfied article 64.01(b)(2)

by including affidavit from expert who stated that current “clean up” procedures were better than

prior techniques and would make it more likely that retesting would yield result when prior

testing did not). In his motion, Padilla did not identify what new testing techniques could be

used that were not available when the tests were originally performed. Instead, Padilla appeared

to rely on the Texas Forensic Science Commission’s letter indicating that there was the potential

for error in testing results and seemed to suggest that the “re-calculation and re-analysis” is the

“new testing technique” that would yield more accurate and probative testing results in his case.

However, the record reflects that such “re-analysis” has already been conducted in

his case. The CPI Evaluation Laboratory Report in the record, issued in March 2017, reflects

11
that the evidence in this case was evaluated in accordance with the Texas Forensic Science

Commission’s new DNA mixture interpretation protocol and showed that CPI was not used for

statistical analysis in this case.9 Padilla’s suggestion that the “re-calculation and re-analysis”

would yield a more accurate and probative result than previous testing ignores the fact that,

because CPI/CPE calculation was not used in this case, there is no “re-calculation” to be made.10

Because Padilla failed to carry his burden to establish his entitlement to

subsequent DNA testing under article 64.01(b)(2) for the evidence that was previously tested, the

trial court did not abuse its discretion in denying Padilla’s most recent motion seeking further

9 Padilla implies that the lab report, attached to the State’s Response, is not properly part
of the record. However, he cites to no authority stating that, in a Chapter 64 proceeding, the trial
court is precluded from considering exhibits attached to the State’s response, and we find none.
See, e.g., Ex parte Gutierrez, 337 S.W.3d 883, 893 (Tex. Crim. App. 2011) (observing that
legislature “placed no barriers to the type of relevant and reliable information that the trial judge
may consider when determining if identity was or is an issue in the case” and concluding that
witness statements attached to State’s brief submitted to trial judge were part of record and
properly considered by court); Mearis v. State, 120 S.W.3d 20, 24 (Tex. App.—San Antonio
2003, pet. ref’d) (concluding that trial court did not err in considering affidavits submitted by
State in opposition to motion for forensic DNA testing because, based on language of Chapter
64, in deciding whether evidence to be tested still exists, trial court could reach that decision
based on sufficiency of State’s written explanation in State’s response and affidavits attached
as exhibits).

Furthermore, in his motion, Padilla asked the trial court to take judicial notice “of the
entire contents of the District Clerk’s file on record” and “the record developed during Chapter
64 TX.C.Cr.P [sic] proceedings, and significantly of all current and ongoing proceedings
involving the ‘re-calculation and re-analysis’ of the DNA test results obtained under Chapter 64.”
10 Padilla contends that the CPI Evaluation Lab Report is not “conclusive.” However,
the letter from the Texas Forensic Science Commission stated: “We therefore recommend any
prosecutor, defendant or defense attorney with a currently pending case involving a DNA
mixture in which the results could impact the conviction consider requesting confirmation that
CPI was calculated by the laboratory using current and proper mixture interpretation protocols.
If the laboratory is unable to confirm the use of currently accepted protocols for the results
provided, counsel should consider requesting a re-analysis of CPI.” The evaluation here, which
demonstrated that CPI was not used in the statistical analysis of the DNA testing in Padilla’s
case, addressed the potential concerns with the DNA mixture interpretation protocol and the
impact of the database correction on the expression of profile probability in this case.
12
DNA testing of the evidence in this case. See Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App.

2002) (recognizing that “a court must order testing only if the statutory preconditions are met”).

Appointment of Counsel

An indigent convicted person intending to file a motion for postconviction

forensic DNA testing has a limited right to appointed counsel. Gutierrez, 337 S.W.3d at

889; see Tex. Code Crim. Proc. art. 64.01(c) (stating requirements for appointment of counsel).

Appointment of counsel in a Chapter 64 proceeding is determined by three criteria: (1) the

defendant must inform the convicting court that he wishes to submit a motion for DNA testing;

(2) the convicting court must find that “reasonable grounds” exist for filing a DNA motion; and

(3) the convicting court must find that the movant is indigent. Gutierrez v. State, 307 S.W.3d 318,

321 (Tex. Crim. App. 2010).

Though a convicted person need not prove entitlement to DNA testing as a

precondition for obtaining appointed counsel, whether “reasonable grounds” exist for testing

necessarily turns on what is required for testing. Gutierrez, 337 S.W.3d at 891; see Lewis

v. State, 191 S.W.3d 225, 227–28 (Tex. App.—San Antonio 2005, pet. ref’d) (statute requires

only showing of “reasonable grounds” for motion to be filed, not establishment of “prima facie”

case). Entitlement to appointed counsel is conditioned on the trial judge’s finding that

reasonable grounds exist for the filing of a motion for postconviction DNA testing.

As discussed above, we have already concluded—as the trial court did—that

Padilla failed to satisfy the statutory requirements of article 64.01(b) for subsequent DNA

testing. Thus, as the trial court found, Padilla did not establish “reasonable grounds” to file a

motion for subsequent DNA testing. See Lewis, 191 S.W.3d at 228–29 (“If a convicted person

13
who bears the burden of satisfying the requirements of Chapter 64 fails to meet the preconditions

to obtaining post-conviction DNA testing, he has failed to set forth reasonable grounds to file a

motion and, therefore, is not entitled to the appointment of counsel.”). Therefore, we conclude—

as the trial court did—that Padilla failed to satisfy the statutory requirements of article 64.01(c)

for the appointment of counsel. Consequently, we conclude that the trial court’s decision to deny

Padilla’s most recent request for appointed counsel was not error. See Weems v. State,

550 S.W.3d 776, 781 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (determining that trial

court did not err by denying request for appointment of counsel under Chapter 64 when

convicted person “failed to demonstrate” that “the statutory preconditions to obtaining DNA

testing” were met); In re Ludwig, 162 S.W.3d 454, 455 (Tex. App.—Waco 2005, no pet.)

(stating that even if convicting court determines that convicted person is indigent, court is not

required to appoint counsel if it found there were no reasonable grounds for motion for forensic

DNA testing to be filed).

In sum, we conclude that Padilla did not satisfy the statutory requirements of

article 64.01(b) for subsequent postconviction forensic DNA testing or the statutory requirements

of article 64.01(c) for the appointment of counsel. Thus, we conclude that the trial court did not

abuse its discretion in denying Padilla’s August 2018 motion for subsequent DNA testing or his

August 2018 motion requesting the appointment of counsel. We overrule Padilla’s first point

of error.

“Extrajudicial” Jurisdiction

In his motion seeking subsequent DNA testing, Padilla “requested” the trial

court’s jurisdiction over “collateral proceedings” involving: (1) the Travis County District

14
Attorney’s Office, concerning the Brady notice provided to Padilla; (2) the Capitol Area Private

Defender Service (CAPDS), later named “The Forensic Project”; (3) the Texas Forensic Science

Commission; and (4) the Texas Department of Public Safety Crime Lab “related to the ‘re-

calculation and re-analysis’ of DNA testing” under Chapter 64. In his second point of error,

Padilla contends that the trial court “committed reversible error” by “not taking” jurisdiction

over “extrajudicial proceedings involving the re-testing and re-analysis of previous test results”

to review a potential conflict of interest involving these entities.

A trial court cannot assume jurisdiction upon request. In a criminal case, once

general jurisdiction has expired, a trial court can act only if, and to the extent, that it is authorized

to do so by a specific statutory source. Skinner v. State, 305 S.W.3d 593, 594 (Tex. Crim. App.

2010); see Skinner v. State, 484 S.W.3d 434, 437 (Tex. Crim. App. 2016) (explaining that once

general jurisdiction of trial court is exhausted, court “has only limited jurisdiction . . . to perform

functions specified by law”); State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002)

(“Without jurisdiction, the trial court has no power to act. Consequently, a source of jurisdiction

must be found to authorize the trial court’s orders.”).

“[I]n enacting Chapter 64, the Legislature provided a source of limited

jurisdiction for a [trial] court to entertain a movant’s request for postconviction DNA testing and

a framework for trial courts to conduct those proceedings.” Skinner, 484 S.W.3d at 437; State

v. Holloway, 360 S.W.3d 480, 487 (Tex. Crim. App. 2012), abrogated on other grounds by

Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014) (recognizing that Chapter 64 re-

confers limited subject-matter jurisdiction in convicting court). Chapter 64 provides no authority

for the trial court to exercise jurisdiction over individuals or entities related to claims of an

alleged conflict of interest. See Tex. Code Crim. Proc. arts. 64.01–.04; cf. Holloway, 360 S.W.3d

15
at 488 (“The jurisdictional purpose of Chapter 64 is simply to provide deserving applicants with

a mechanism for post-conviction DNA testing and a favorable finding on the record if justified

by that testing; it does not include any other remedy or form of relief in the convicting court.”

(emphasis added)). The Court of Criminal Appeals has explained,

Patrick and its progeny further contradict the notion that a court can be required
by constitutional principles to consider claims under a remedial statute that are not
authorized by the language of that statute. Quite the opposite: if the statute is
what creates the remedy, and the claim at issue does not qualify under the statute,
then the court is prohibited from granting relief under the statute.

Ex parte White, 506 S.W.3d 39, 51 (Tex. Crim. App. 2016). Thus, the trial court cannot exercise

its limited jurisdiction under Chapter 64 to consider Padilla’s conflict-of-interest claim or grant

Padilla any relief on the basis of such a claim. See, e.g., Holloway, 360 S.W.3d at 487

(concluding that permitting trial court to take extra-statutory action of granting new trial would

conflict with plainly expressed jurisdictional purpose of DNA statute).

On appeal, Padilla describes this issue as “a subsidiary issue” directed to this

Court, in which he asks us “to consider a ‘potential’ conflict” among the state officials who were

involved in the trial of his case who are, according to Padilla, involved, in an oversight capacity,

with the DNA testing “re-calculation” process. However, in an appeal from the trial court’s

denial of a request for DNA testing, we may not consider any claims that fall outside the scope

of Chapter 64. In re Garcia, 363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.); see

Nelson v. State, No. 03-12-00187-CR, 2014 WL 902497, at *1 (Tex. App.—Austin Mar. 5, 2014,

no pet.) (mem. op., not designated for publication); Padilla, 2013 WL 3185896, at *4; see also

Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d) (concluding that,

16
because trial court was without jurisdiction to consider contentions under DNA statute, issues

fell outside scope of appellate review under article 64.05).

We overrule Padilla’s second point of error.

Sufficiency Challenge

In his third point of error, Padilla challenges the sufficiency of the evidence “to

support the legal and factual determinations made by [this Court in our 2013 opinion] relating to

previous chapter 64 DNA test results.”

As an initial matter, we note that the proper vehicle for challenging a prior

decision of this Court is a petition for discretionary review in the Court of Criminal Appeals.

See Tex. R. App. P. 68.1 (“On petition by any party, the Court of Criminal Appeals may review a

court of appeals’ decision in a criminal case.”); 43B George E. Dix & John M.

Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 57:1 (3d ed.) (noting

that either party to criminal case decided by court of appeals has statutory right to seek review by

Court of Criminal Appeals and explaining that vehicle for pursuing such review

is petition for discretionary review or “PDR”); Tex. Code Crim. Proc. art. 44.45(b)(1) (“The state

or a defendant in a case may petition the Court of Criminal Appeals for review of the decision of

a court of appeals in that case.”). Padilla sought discretionary review of this Court’s 2013

decision, which he now claims was not supported by the trial record or the record “on Chapter

64,” and such review was refused by the Court of Criminal Appeals. See Tex. R. App. P. 69.1;

see also Website of Court of Criminal Appeals, http://search.txcourts.gov/Case.aspx?cn=PD-

1168-13&coa=coscca.

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 Furthermore, Padilla relies on Whitfield v. State, 430 S.W.3d 405 (Tex. Crim.

App. 2014), to support his contention that “courts of appeal have been given the authority to

consider the sufficiency of evidence as well as other grounds on appeal” in a Chapter 64

proceeding. However, Whitfield addressed the issue of whether a convicted person could appeal

the trial court’s unfavorable finding under article 64.04. See id. 407–09; see also Tex. Code

Crim. Proc. art. 64.04 (providing that, after examining DNA testing results, convicting court

shall “make a finding as to whether, had the results been available during the trial of the offense,

it is reasonably probable that the person would not have been convicted”). Abrogating a prior

decision, the Court of Criminal Appeals held that an appeal under Chapter 64 extends to the

sufficiency of the evidence to support an article 64.04 finding.11 Whitfield, 430 S.W.3d at 409.

The trial court here made no finding under article 64.04.

Moreover, while the court in Whitfield stated that “the courts of appeals have been

given authority to consider the sufficiency of the evidence as well as other grounds of appeal,”

the court was construing article 64.05, the statute governing DNA-testing appeals. Id. That

statute explicitly provides for appeals “under this chapter,” meaning Chapter 64. See Tex. Code

Crim. Proc. art. 64.05. The evidentiary sufficiency review that Whitfield authorizes is the

sufficiency of the evidence supporting a finding made pursuant to article 64.04, which is an

appeal “under this chapter.” We do not construe Whitfield as expanding article 64.05 to

11 In State v. Holloway, 360 S.W.3d 480 (Tex. Crim. App. 2012), abrogated on other
grounds by Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014), the Court of Criminal
Appeals held that the court of appeals erred by addressing a State’s appeal of the trial court’s
finding favorable to a convicted person because any opinion on the merits of the finding related
to the DNA testing would result in an advisory-only opinion. 360 S.W.3d at 490. In Whitfield,
the court overruled Holloway in light of its conclusion that the legislative intent was to grant the
courts of appeals the authority to review a trial court’s findings under the DNA statute.
430 S.W.3d at 410.
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authorize a general sufficiency review or an appeal of any issue beyond the scope of Chapter 64,

such as Padilla’s evidentiary-sufficiency challenge here, which is, at its core, a challenge to

the sufficiency of the evidence supporting his convictions. See Garcia, 363 S.W.3d at 822

(“[C]hapter 64 is not an invitation to review every potential error in the underlying trial

proceedings; instead, it is simply a procedural vehicle for obtaining evidence ‘which might then

be used in a state or federal habeas proceeding.’ Accordingly, chapter 64 does not confer

jurisdiction on an appellate court . . . to review, under the guise of a DNA testing appeal,

anything beyond the scope of those articles.” (internal citations omitted)).

We overrule Padilla’s third point of error.

Other Motions

In his fourth point of error, Padilla argues that the trial court erred by denying, or

not ruling on, other motions filed in connection with his most recent motion for subsequent DNA

testing. Specifically, Padilla filed motions for discovery of the victim’s medical records and

motions for a “discretionary evidentiary hearing.”

This Court has previously construed the Chapter 64 statutory scheme as

permitting only appeals from an order denying testing or an order related to testing results

(an article 64.04 finding) and has concluded that we lack jurisdiction to review anything

outside the purview of the Chapter 64 articles. Padilla, 2013 WL 3185896, at *3–4; Garcia,

363 S.W.3d 822; Padilla, 2010 WL 5019166, at *1–2; see, e.g., Martin v. State, No. 03-11-

00839-CR, 2014 WL 295036, at *3 (Tex. App.—Austin Jan. 23, 2014, no pet.) (mem. op., not

designated for publication) (concluding that denial of request for appointed counsel to assist in

having DNA test results compared to statewide DNA database did fall within purview of Chapter

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64 and was not reviewable on appeal); see also Tex. Crim. Proc. Code art. 64.05 (authorizing

appeal “under this chapter”). Several of our sister courts of appeals have also concluded that

Chapter 64 does not confer jurisdiction on appellate courts to review anything beyond the scope

of the Chapter 64 articles. See Weems, 550 S.W.3d at 781; Reger, 222 S.W.3d at 514; Lopez

v. State, 114 S.W.3d 711, 714 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.); see also

Diaz v. State, No. 02-17-00003-CR, 2018 WL 359958, at *2 (Tex. App.—Fort Worth Jan. 11, 2018,

no pet.) (mem. op., not designated for publication); Dukes v. State, No. 04-12-00404-CR,

2013 WL 1760618, at *2 (Tex. App.—San Antonio Apr. 24, 2013, no pet.) (mem. op., not

designated for publication); Conlin v. State, No. 09-07-344 CR, 2007 WL 5101236, at *5 (Tex.

App.—Beaumont Apr. 16, 2008, no pet.) (mem. op., not designated for publication).

The trial court’s denial of discovery motions, which are not authorized under

Chapter 64, or the failure to rule on such motions, does not fall within the purview of Chapter 64

and is, therefore, not reviewable on appeal under article 64.05. Cf. Wolfe v. State, 120 S.W.3d 368,

371 (Tex. Crim. App. 2003) (dismissing appeal because 2003 version of article 64.05 did not

authorize review of trial court’s denial of appellant’s request to appoint DNA expert).

As for Padilla’s complaint concerning a “discretionary evidentiary hearing”—the

trial court’s denial of his motions requesting such a hearing, the court’s failure to rule on the

motions seeking such a hearing, or the court’s failure to conduct such a hearing—the statutory

requirement for a hearing in a Chapter 64 proceeding appears in article 64.04, which applies after

the DNA testing has been ordered and conducted. That statute provides:

After examining the results of testing under Article 64.03 and any comparison of
a DNA profile under Article 64.035, the convicting court shall hold a hearing and
make a finding as to whether, had the results been available during the trial of the
offense, it is reasonably probable that the person would not have been convicted.

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Tex. Code Crim. Proc. art. 64.04. The trial court here did not order subsequent DNA testing and

no subsequent DNA testing was conducted; thus, no hearing was required since there was no

article 64.04 finding for the trial court to make. The trial court did not err in failing to conduct a

hearing pursuant to article 64.04.

To the extent that Padilla sought an evidentiary hearing related to his discovery

motions—that is, sought a hearing to compel discovery—such a hearing is not authorized under

Chapter 64. See id. Thus, the denial of Padilla’s motions requesting such a hearing, the failure

to rule on the motions requesting such a hearing, or the failure to conduct such a hearing, fall

outside the purview of Chapter 64 and, like his complaints relating to the discovery motions

themselves, are not reviewable on appeal under article 64.05. Cf. Wolfe, 120 S.W.3d at 371.

We overrule Padilla’s fourth point of error.

CONCLUSION

We affirm the trial court’s order denying Padilla’s August 2018 motion for

subsequent postconviction forensic DNA testing and August 2018 motion requesting the

appointment of counsel.

__________________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: January 14, 2021

Do Not Publish

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