in Re Tom Robertson, Sr.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00282-CR

In re Tom Robertson, Sr.

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY
NO. A-05-0549-S, THE HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Tom Robertson, Sr. appeals the trial court’s order denying his motion

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

See Tex. Code Crim. Proc. arts. 64.01(a-1), 64.03. We will affirm.

BACKGROUND

In 2006, a jury found appellant guilty of sexual assault of a child, see Tex.

Penal Code § 22.011(a)(2), and sentenced him to twenty years’ imprisonment, see id. § 12.33.

His conviction was affirmed by the Thirteenth Court of Appeals.1 See Robertson v. State,

No. 13-06-00315-CR, 2007 WL 2417371, at *1 (Tex. App.—Corpus Christi–Edinburg

Aug. 28, 2007, pet. ref’d) (mem. op., not designated for publication). The following factual

background of appellant’s case was set forth by our sister court:

1 The Supreme Court of Texas transferred the direct appeal from this Court to the
Thirteenth Court of Appeals pursuant to its docket equalization authority. See Misc. Docket
No. 06-9063 (Tex. May 30, 2006); see also Tex. Gov’t Code § 73.001 (authorizing transfer of
cases between courts of appeals).
 Appellant and his two sons, Tom Elton Robertson II and Sam Robertson, were
separately indicted for sexual assault of the same child, J.J. According to J.J., she
had been sexually assaulted by all three men at various and separate times
beginning when she was fourteen years old. These alleged sexual assaults
occurred while J.J.’s mother was dating appellant. When she was fifteen years
old, J.J. became pregnant. DNA analysis showed that Tom Elton Robertson II is
the father of J.J.’s baby.

Id. Appellant and one of his sons, Tom Elton Robertson II, agreed to a joint trial.

During the joint trial, the State presented eleven witnesses, including J.J., and
numerous exhibits, including photographs, recorded phone calls, and blood
samples. Neither appellant [n]or Robertson II testified. After the close of the
evidence, the jury returned a guilty verdict for both defendants and sentenced
them both to twenty years in prison.

Id.

In 2009, appellant filed two separate pro se requests for the appointment of

counsel to assist him in seeking postconviction forensic DNA testing, which were both denied.

See Tex. Code Crim. Proc. art. 64.01(c). In 2018, he filed a third pro se request for appointed

counsel, which was also denied. See id. Appellant attempted to appeal the trial court’s order

denying his third request for appointed counsel; this Court dismissed the appeal for want of

jurisdiction. See Ex parte Robertson, No. 03-18-00103-CR, 2018 WL 2074653, at *1 (Tex.

App.—Austin May 4, 2018, no pet.) (mem. op., not designated for publication); see also

Whitfield v. State, 430 S.W.3d 405, 408 n.11 (Tex. Crim. App. 2014) (explaining that “a judge’s

refusal to appoint counsel for post-conviction DNA testing is not an immediately ‘appealable

order’ under 64.05 because it is a preliminary decision that is appropriately reviewed as alleged

error after a motion for DNA testing is denied” (citing Gutierrez v. State, 307 S.W.3d 318, 323

(Tex. Crim. App. 2010))).

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 Appellant then filed a pro se motion seeking postconviction forensic DNA testing.

See Tex. Code Crim. Proc. art. 64.01(a-1). The trial court ordered a response from the State, see

id. art. 64.02(a)(2) (requiring attorney representing State to either “deliver the evidence to the

court, along with a description of the condition of the evidence,” or “explain in writing to the

court why the state cannot deliver the evidence to the court”), and the State filed a response,

which attached as exhibits a list of evidence maintained by the police department and a list of

evidence admitted at trial, and a supplemental response, which attached as exhibits a DPS crime

lab report concerning the submitted evidence items tested in the case and an affidavit of the

evidence custodian from the police department.

After reviewing appellant’s motion and the evidence in the custody of the district

clerk and the State, the trial court entered an order denying appellant’s motion, making findings

as to appellant’s motion and the evidence that he sought to have tested.2 Regarding appellant’s

motion, the trial court found that:

1. Movant, Tom Robertson, Sr., filed what appears to be a “form motion”
containing numerous blank lines to be filled in by Movant.

2. Movant requests forensic DNA testing of the following listed items
“containing biological material”: “Syringes, Hair, condoms, Spermicide
Applicators, Mattress Cavers (sic), Seat Covers, Flooring or, Tissues,
Swabs, QTips, Foam[.”]

2 Ten days before signing the order, the trial court mailed a letter to appellant with a
copy of the State’s supplemental response. In the letter, the court explained “the legal process of
applying for post-conviction DNA testing,” which included setting forth the applicable statutory
provisions and relevant standards expressed in case law. The trial judge then informed appellant,
“After reviewing your application, and the evidence remaining in custody, I have found that the
application and evidence do not satisfy the requirements of Chapter 64,” and conveyed the
court’s intention to deny appellant’s motion due to the failure to satisfy the requirements set out
in articles 64.01 and 64.03.
3
 3. The motion for DNA testing fails to allege facts that would show, by a
preponderance of the evidence, the requirements of Art. 64.03, Texas
Code of Criminal Procedure.

...

5. The motion further does not allege facts that would establish by a
preponderance of the evidence that movant would not have been convicted
if exculpatory results had been obtained through DNA testing, and that the
request for testing is not made to unreasonably delay the execution of
sentence or administration of justice.

Concerning the evidence in the possession of the district clerk, the trial court

found that:

1. Evidence admitted during Movant’s trial has been in the possession of the
Tom Green County District Clerk since the Mandate was issued in this
case.

2. The evidence consists of thirty-five (35) items. There are no syringes,
hair, condoms, spermicide applicator, mattress covers, seat covers,
flooring, tissues, Qtips, or foam. Only one (1) item requested to be tested
by movant would possibly be in the clerk’s possession. This is a “swab
DNA sample [K.J.]”. [K.J.] was born to the victim, [J.J.]. There is a
blood sample of [J.J.]. A search warrant authorized the drawing of blood
from Movant, and his son, Tom Robertson, Jr., a co-defendant. Tom
Robertson Jr. was shown to be the biological father of the infant. Movant
further, does not seek testing of the blood samples.

3. The evidence in the possession of the clerk is in an open cardboard box. It
appears to have [been] a box used for evidentiary purposes by the court
reporter to store various items during the appeal.

4. Even assuming that there was evidence in the possession of the clerk,
corresponding with that requested by Movant, the evidence has not been
subjected to a chain of custody since the trial to establish confidence that it
has not been substituted, tampered with, replaced, altered or remained
uncontaminated to allow for testing.

With regard to evidence “in the possession of the State,” the trial court found:

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 1. The Texas Department of Public Safety shows to have been in the
possession of three (3) items relevant to Movant’s motion: upholstery
from the vehicle of Tom Robertson (seat covers), yellow mattress sample
(mattress), and blue mattress sample (mattress).

2. Testimony from Diane Wilson, during the trial of Movant, revealed that
no DNA testing was done by the Department of Public Safety because the
items were so covered with stains that testing was ruled out as being able
to reveal anything probative.[3] Movant, co-defendant Tom Robertson Jr.,
the victim[,] and numerous other persons apparently stayed at the house
during a period of time preceding the seizing of evidence. DNA would
have been expected to be on the mattresses and sheets.

Based on these findings, the trial court denied appellant’s motion.4

DISCUSSION

Appellant raises two points of error on appeal. In his first point of error, he

argues that the trial court erred in denying his motion for DNA testing because he satisfied the

requisites of the statute. In his second point of error, he maintains that the trial court

“unconstitutionally applied” Chapter 64 to “his situation.”

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

3 Specifically, the trial testimony concerning the mattresses and sheets was that they
were “so covered with various stains and secretions and, in fact, layered stains on this — on
these covers” that the lab personnel “didn’t feel like that — that that they could do an adequate
and effective test on these mattress covers.”
4 In the order denying testing, the court “also decline[d] to appoint counsel for Movant.”
Appellant does not complain about the denial of his request for appointed counsel.
5
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. See 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).

In his motion for DNA testing, appellant requested that forensic DNA testing be

conducted “on the following evidence containing biological material, NAMELY[,] Syringes,

Hair, condoms, Spermicide Applicators, Mattress C[o]vers, Seat Covers, Flooring or Tissues,

Swabs, Q-Tips, Foam.” In an “affidavit” attached to his motion,5 appellant appears to recount

trial testimony from the child victim that described an incident in which appellant had sexual

5 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 appellant’s motion is not accompanied by the required sworn-to affidavit, it
contains an affidavit with an “inmate’s declaration” in which appellant swears “under penalty of
perjury” that the facts contained in the affidavit 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
appellant’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
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).
6
intercourse with her in his truck after he put a syringe or spermicide applicator “up in” her and

“the foam squirted into the victim’s vagina.”6 Appellant avers in his unsworn declaration that

“[t]he testing of the list of evidence in this Affidavit; if it returns any useable DNA, will show

that none of [his] DNA is on the evidence, and that the evidence would show [his] innocence.”

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

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

id. arts. 64.01, 64.03; 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”). 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 v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002); 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).

Under Chapter 64, the convicting court may order DNA testing only if the court

finds that:

1. the evidence “still exists and is in a condition making DNA testing possible;”

6 In her trial testimony, J.J. described incidents of appellant’s sexual abuse of her that
occurred in appellant’s bedroom, on the floor of his bedroom, in Sam’s bedroom, and in
appellant’s truck. She said that appellant used the same methods of birth control (the foam
spermicide and a condom) every time.
7
2. the evidence “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;”

3. “there is a reasonable likelihood that the evidence contains biological material suitable
for DNA testing; and”

4. “identity was or is an issue in the case[.]”

Tex. Code Crim. Proc. art. 64.03(a)(1); see Ex parte Gutierrez, 337 S.W.3d 883, 889, 891 (Tex.

Crim. App. 2011); see also Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (noting

findings that trial court must make before it may order DNA testing). In addition, the convicted

person must establish by a preponderance of the evidence that:

1. he “would not have been convicted if exculpatory results had been obtained through
DNA testing; and”

2. “the request for the proposed DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice.”

Tex. Code Crim. Proc. art. 64.03(a)(2). The record demonstrates that appellant failed to meet the

statutory requirements of Chapter 64 for obtaining postconviction DNA testing.

First, in his motion, appellant did not explain whether the evidence sought to be

tested still exists and is in a condition capable of being tested.7 The affidavit of the evidence

custodian of the police department, which was attached to the State’s supplemental response,

indicates that several items that appellant sought to have tested did not “still exist” or never did

7 We also note that, in his motion, appellant lists items of evidence generally without any
specific identifying information, simply asserting that “[t]his evidence was secured in relation to
the Offen[s]e of Sexual Assault of a Child.” For example, he asks for “hair” to be tested, but
fails to identify whose hair or when or where such evidence was purported to have been
collected. 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 v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002)).

8
exist for purposes of the statute because no such items were collected during the investigation of

appellant’s case.8 The custodian stated that he found “no record” of hair, spermicide applicators,

flooring or tissues, swabs, Q-tips, or foam “being submitted to the evidence section in relation to

this case.”

In addition, the custodian stated that he was “unable to locate” a Ziploc bag

containing disposable plastic syringes with disposable needles, which was seized pursuant to a

search warrant and was submitted to the evidence storage at the police department. He explained

that, while he did not have a record of the release or destruction of this item, the lockbox that the

item was originally found in was released to an individual at appellant’s request, and the Ziploc

bag may have been released with the lockbox. The custodian also indicated that he was “unable

to locate” “condom packages” (not “condoms” as appellant referenced in his motion), which had

been seized pursuant to a search warrant and were submitted to the evidence storage at the police

department, although the evidence custodian found no record of the release or destruction of

these items.

“Affidavit testimony from a relevant witness that no biological evidence from the

case is maintained or possessed is sufficient, absent any contrary evidence, to support denial of a

motion for forensic DNA testing.” Lewis v. State, 191 S.W.3d 225, 228 (Tex. App.—San

Antonio 2005, pet. ref’d); accord In re Fletcher, No. 03-19-00044-CR, 2020 WL 742383, at *3

(Tex. App.—Austin Feb. 14, 2020, no pet.) (mem. op., not designated for publication); see, e.g.,

Caddie v. State, 176 S.W.3d 286, 290 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)

8 Under article 64.01, the motion “may request forensic DNA testing only of evidence
described by Subsection (a-1) that was secured in relation to the offense that is the basis of the
challenged conviction and was in the possession of the state during the trial of the offense[.]”
Tex. Code Crim. Proc. art. 64.01(b).
9
(concluding that trial court’s finding that movant failed to show that DNA evidence “still exists

and is in a condition making DNA testing possible” was supported by record when State averred

that no testable DNA evidence existed and submitted affidavits of records custodians of district

clerk, police-department crime lab, and police-department property room). Appellant did not

offer any evidence contradicting the affidavit evidence presented by the State that these items of

evidence did not “still exist” or did not exist at all. See Gutierrez, 337 S.W.3d 891 (observing

that courts have found that reasonable grounds are not present if no evidence exists or if it has

been destroyed).

Assuming, as the trial court did, that appellant’s request for the testing of “swabs”

referred to DNA swabs admitted at trial and in the possession of the district clerk, the only “still

exist[ing]” evidence item was the DNA swab of the infant child in this case. The trial court

found that the swab was not in a condition capable of being tested given that it had been stored in

an open cardboard box in the district clerk’s office and “has not been subjected to a chain of

custody since the trial to establish confidence that it has not been substituted, tampered with,

replaced, altered or remained uncontaminated to allow for testing.”9 See Reed, 541 S.W.3d at

770 (stating that evidence handled by number of people and stored “commingled in a common

repository” cast “doubt on the evidence’s integrity”).

Concerning the remaining items that appellant sought to have tested—the seat

covers (from appellant’s truck) and the mattress covers (of the mattresses from the bedrooms of

appellant’s home), another threshold requirement under Chapter 64 is that “the convicted person

establishes by a preponderance of the evidence that . . . the person would not have been

9 We also note that the DNA paternity testing previously done in this case demonstrated
that appellant’s son and co-defendant was the father of the child. Thus, exculpatory evidence as
to this DNA swab was presented to the jury at trial.
10
convicted if exculpatory results had been obtained through DNA testing.” Tex. Code Crim.

Proc. art. 64.03(a)(2)(A). This means that a convicted person must show a greater than 50%

chance that he would not have been convicted if exculpatory results from the requested DNA

testing had been available at trial. Hall, 569 S.W.3d at 655; Reed, 541 S.W.3d at 774; see LaRue

v. State, 518 S.W.3d 439, 446 (Tex. Crim. App. 2017) (“This requires the convicted person to

show that he, more likely than not, would not have been convicted if results of the requested

testing exclude him.”). “Exculpatory results” means only results excluding the convicted person

as the donor of the DNA. Hall, 569 S.W.3d at 655–56; Reed, 541 S.W.3d at 774. The required

showing has not been made if exculpatory test results would “merely muddy the waters.”

LaRue, 518 S.W.3d at 446; Rivera, 89 S.W.3d at 59.

As the trial court noted, appellant’s motion “[did] not allege facts that would

establish by a preponderance of the evidence that movant would not have been convicted if

exculpatory results had been obtained through DNA testing.” Instead, appellant merely

summarily asserted that “[t]he testing of the list of evidence in this Affidavit; if it returns any

useable DNA, will show that none of my DNA is on the evidence, and that the evidence would

show my innocence.” However, the “facts” asserted in his unsworn declaration recite trial

testimony describing an incident in which appellant sexually assaulted J.J. in his truck. The lab

testing on the seat covers before trial reflected that there were “no indications of semen on the

upholstery,” which included the seat covers of the driver’s seat, the center seat, and the passenger

seat of appellant’s truck. Appellant failed to explain—or establish by a preponderance by the

evidence—how DNA testing of the seat covers would produce exculpatory results that would

11
exonerate him. Given the absence of semen on the upholstery of appellant’s truck,10 DNA on the

seat covers of someone other than appellant would neither support nor refute the alleged sexual

contact. See Rivera, 89 S.W.3d at 60 n.20 (observing that “the absence of appellant’s DNA

would not indicate innocence because it could simply mean none was deposited”); see, e.g.,

Whitaker, 160 S.W.3d at 9 (concluding that DNA test of murder weapon “would be

meaningless” under facts of case).

Concerning the mattress covers, which remained in the custody of the police after

being returned from the lab, the trial court noted the trial testimony that indicated that the crime

lab did not test these items because, given the access to these items by multiple individuals in the

home (including all three of the alleged perpetrators), they “were so covered with stains that

testing was ruled out as being able to reveal anything probative.” “[T]he significant possibility

of DNA being deposited by an innocent person reduces the probative value of any exculpatory

DNA test result,” Hall, 569 S.W.3d at 658, and the probative value of DNA testing that excludes

a defendant is diminished if multiple potential contributors could have handled the item sought to

be tested, see Dunning v. State, 572 S.W.3d 685, 693 (Tex. Crim. App. 2019).

In sum, appellant 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 of

the “still existing” items of evidence that he sought to have tested.

To succeed on his motion for postconviction DNA testing, appellant was required

to establish all of Chapter 64’s requirements. Given the deficits in appellant’s motion and

unsworn declaration, the record demonstrates that appellant failed to satisfy the statutory

10 As the trial court noted in its findings, J.J. testified that appellant “used a condom and
a spermicide during the assaults.”
12
requirements set out in article 64.03. Thus, the trial court did not abuse its discretion in denying

appellant’s motion seeking DNA testing. 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”).

We overrule appellant’s first point of error.

Due Process Claim

In his second point of error, appellant asserts that the trial court’s denial of his

motion for DNA testing violated his right to due process because “Chapter 64 was

unconstitutionally applied to his situation.”

It is difficult to discern what, exactly, appellant is complaining about in this point

of error. Appellant acknowledges that there is no substantive due process right to postconviction

DNA testing, see District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52,

72 (2009) (declining to recognize freestanding, substantive due process right to DNA evidence),

but appears to assert that, in requiring that “identity be an issue” in the case, the DNA testing

statute violates procedural due process because “the failure to provide access to evidence for

post-conviction DNA testing is an arbitrary, unconstitutional application of Chapter 64 to all

similarly situated appellants and a clear violation of their due process rights.” Appellant

maintains that the requirement that “identity being an issue” should be limited to “stranger-

victim misidentification cases.” Thus, according to appellant, the DNA testing statute is

unconstitutional as applied to him because his case did not involve “stranger-victim

misidentification” since the child victim was acquainted with him.

Appellant’s due process claim appears to raise an “as applied” constitutional

challenge to the DNA testing statute. However, appellant presents this due process challenge for

13
the first time on appeal. He did not present a due process claim in his motion for DNA testing or

otherwise present the claim to the trial court. Accordingly, appellant did not preserve this

complaint for appellate review. See Tex. R. App. P. 33.1(a)(1)(A) (imposing requirement of

making specific request, objection, or motion to preserve complaint for appellate review);

Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (stating that “‘[a]s applied’

constitutional claims are subject to the preservation requirement and therefore must be objected

to at the trial court in order to preserve error”); see also Curry v. State, 186 S.W.3d 39, 42 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (concluding that due process challenge to article

64.03(a), which was not asserted at trial-court level, was waived and explaining that

“[c]onstitutional rights, including the rights of due process and due course of law, may be waived

if the proper request, objection, or motion is not asserted in the trial court”).

Even assuming that appellant’s due process claim has been preserved, “[t]here is

no free-standing due-process right to DNA testing, and the task of fashioning rules to ‘harness

DNA’s power to prove innocence without unnecessarily overthrowing the established system of

criminal justice’ belongs ‘primarily to the legislature.’” Gutierrez, 337 S.W.3d at 888 (quoting

Osborne, 557 U.S. at 62); see Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000)

(stating that there is no constitutional right to postconviction DNA testing). Concerning

procedural due process in the context of postconviction relief, the United States Supreme Court

has explained:

A criminal defendant proved guilty after a fair trial does not have the same
liberty interests as a free man. At trial, the defendant is presumed innocent and
may demand that the government prove its case beyond reasonable doubt. But
once a defendant has been afforded a fair trial and convicted of the offense for
which he was charged, the presumption of innocence disappears. Given a valid

14
 conviction, the criminal defendant has been constitutionally deprived of his
liberty.

The State accordingly has more flexibility in deciding what procedures are
needed in the context of postconviction relief. When a State chooses to offer help
to those seeking relief from convictions, due process does not dictate the exact
form such assistance must assume. [A convicted person’s] right to due process is
not parallel to a trial right, but rather must be analyzed in light of the fact that he
has already been found guilty at a fair trial, and has only a limited interest in
postconviction relief. . . .

Instead, the question is whether consideration of [a convicted person’s]
claim within the framework of the State’s procedures for postconviction relief
offends some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental, or transgresses any recognized principle of
fundamental fairness in operation. Federal courts may upset a State’s
postconviction relief procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided.

Osborne, 557 U.S. at 68–69 (internal quotation marks, alterations, and citations omitted).

As discussed in the previous point of error, the record demonstrates that, given the

deficiencies in appellant’s motion and his accompanying unsworn declaration, the trial court

correctly determined that several requirements established by the Legislature for postconviction

DNA testing in Chapter 64 were not met in this case. The trial court did not conclude—and

neither do we—that the statutory requirement that identity be an issue in the case was not

established here. Thus, even if the statute’s requirement that identity be an issue somehow

violates due process—and we do not conclude that such a requirement is “fundamentally unfair”

or “transgresses any recognized principle fundamental fairness in operation,” see id. at 59—we

can perceive no due process violation from the trial court’s ruling here since it was not based on

the “identity as an issue” requirement. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim.

App. 2008) (stating that “[t]here is nothing unreasonable or unjust with the way Chapter 64 deals

with requests for DNA testing” in rejecting claim that Chapter 64 requirement that case raise

15
issue of identity violates due process rights because it prevents introduction of evidence that

someone else committed crime); see also Cravin v. State, 95 S.W.3d 506, 511 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (holding that “there is nothing fundamentally unfair about

the procedures set out in chapter 64 and followed by the convicting court” and that “the [Chapter

64] procedures do not violate appellant’s due process rights”); Christ v. State, No. 14-08-00902-CR,

2009 WL 5227884, at *3 (Tex. App.—Houston [14th Dist.] Sept. 1, 2009, pet. ref’d) (mem. op.,

not designated for publication) (“There is nothing fundamentally inadequate about article 64.03’s

procedure for post-conviction DNA testing and we should defer to the legislature’s

determinations.”); cf. Bell, 90 S.W.3d at 305–06 (rejecting challenge that denial of request for

DNA testing violated due process rights).

We overrule appellant’s second point of error.11

CONCLUSION

Applying the appropriate standard of review, we conclude that the trial court’s

denial of appellant’s motion for postconviction DNA testing is supported by the record and,

therefore, was not an abuse its discretion. Further, we fail to perceive any due process violation

11 Within his complaint that the trial court’s application of the statute violated his right to
due process, appellant seems to suggest a violation of article 38.43 of the Code of Criminal
Procedure, which governs the retention of evidence containing biological material. However,
such a complaint arguably falls outside the purview of the Chapter 64 articles and thus falls
outside our appellate jurisdiction under Chapter 64. See Weems v. State, 550 S.W.3d 776, 781
(Tex. App.—Houston [14th Dist.] 2018, no pet.); In re Garcia, 363 S.W.3d 819, 822 (Tex.
App.—Austin 2012, no pet.); Reger v. State, 222 S.W.3d 510, 513 (Tex. App.—Fort Worth
2007, pet. ref’d); see also Tex. Code Crim. Proc. art. 64.05 (authorizing appeal “under this
chapter”). Moreover, appellant failed to assert any violation of the statute in the trial court.
Therefore, to the extent that appellant attempts to raise such a complaint here, he failed to
preserve it for appellate review. See Tex. R. App. P. 33.1(a)(1)(A).
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in the trial court’s denial of DNA testing by adhering to the statutory requirements. Accordingly,

we affirm the trial court’s order denying appellant’s motion seeking postconviction DNA testing.

__________________________________________
Edward Smith, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: April 8, 2021

Do Not Publish

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