## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________
No. 02

- 19

- 00312

- CR

___________________________

On A ppeal from the 396th Dis t rict Court Tarrant County, Texas Trial Court No. 121345 2D

Before Kerr, Birdwell, and Bassel, JJ. Me morandum O pinion by Justice Bassel



### J EFFREY 

### L EE 

### M AN NS 

### , Appellant

V



### .

T H E 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION

I. I ntroduction
Appellant Jeffrey Lee Manns was previousl y convicted of agg ravated r obbery

with a deadly weapon

— a knife. Several years after his convictio n , Appellant filed a

pro se post conviction mo tion un der Chapter 64 of the T exas Code of Criminal

Procedure seeking DNA testing of two knives, a Gerber

- brand knife and a K obalt

brand kni fe

. The trial court denied the moti on , and again acting pro se, Appell ant

ap pealed.

I n what appears to be a single issue with multiple subparts, Appellant
challenges the denial of his C hapter 64 motion. A host of reasons su ppor t the tri al

cour t ’ s exercise of its discretion to deny the moti on. With respect to the Gerber

kni fe, which has never been tested
, Appellant does no t e xpla i n ho w the absence of his

DNA on the knife is so ex culpatory that it establishes by a preponderance o f the

e vidence t hat he would not have been convicted . Fur ther, the Gerber knife was not

held in a chain of custody sufficient to establish a relia ble test result

. Wi th respect to

the K oba lt knife
, D NA test ing is not warranted because there was no is sue at trial
,
and there is not one now , of Appellant ’ s identity as the perp etrator of the off ense

.

P r i or testing of the Kobalt knife could not exclude that Appellant ’ s DNA was on the

knife ’ s handle

. N ow, Appellant admits that he held the knife on th e nig ht of the

offense; with t his admission, he validates the accuracy of the pr ior test and negat es

any sug gestion that retesting will produce a different result. F urther, his m otion i s3 fatally deficient because it makes only a conclusory allegation that newe r testing
techniques prov ide a reasonable likelihood of results that are mo re accurate and mo re
probati ve than the results of the test previously conducted on the knife

. Finally, he

con tends that t he Kobalt knife should be tested to prove that it doe s not hold the

vict im’s DNA , but he make s no contention that material exists to conduct that test ,
and a Cha pter 64 moti on may not be used to obtain additional sample s of DNA.
Accordingly, we affirm.

II. Factua l Back groun d

In 2012, w e affi rmed Appellant ’ s aggr avated robbery conviction

. See Manns v.

State
, No. 02

- 11

- 0051 2

- CR
, 2012 W L 6049099 , at * 1, *5 (T ex. A pp.

— Fort Worth
Dec. 6, 2012, pet. ref ’ d

) (me m. op., not designated for publication)

. 1 For context, t he

foll ow ing is th e factual background fr om our prior opinion :

Charles Kent, a vehicle repossession agent, was on his way to re possess a vehicle when he ob served a 1977 Ford F

- 150 truck parked in a parking lot with its hood open and a man under the hood on the passenger side. Af ter circling the block to inv estigate, Kent foun d the t ruck in the parking lot with the hood closed and no one ar ound. H e parked i n the same parking lot to reroute his GPS and work on paperwork.

1 W e di smi ssed for w ant o f jurisdiction Appellant ’ s prior appeal s from the denia l of a pri o r moti on fo r DNA tes ting a nd a request f or appointed counsel

. See Manns v. State
, N o . 02

- 17

- 00259

- CR
, 2017 WL 69 47903, at *1 (Tex. App.

— Fort Worth Oct

. 19, 2017
, no pet.) ( mem. op., not des ignated for publication) (d ismissing appe al from denial of motion for ap pointment of counsel ) ; Manns v. State
, N o . 02

- 15

- 00247

- CR
, 2015 WL 5893122 , a t *1 (Tex. App.

— Fort Worth Oct

. 8, 2015, no pet.) ( mem. op., not designated for publicati on) (dismissing ap peal from denial of motion for DNA testing)

.4 The driver ’ s side door of the Ford truck flew open [,] and a man
, later identified as [Appellant] , jumped out and took off ru nning. Kent drove after [Appellant] and eventuall y cornered him n ea r a building. Kent, a concealed handgun license holder, pointed his .38 revolver at [Appellant] and told him to “freeze.” [Appellant] fled again, runnin g back toward th e Ford truck. [Appellant] fell down, a nd Kent got out of his vehicle, leaving his g un inside. He jumpe d on top of [Appellant]
, who struggled to get free

. While on top of [Appellant] , Kent felt a sharp pain in his stomach and looked down to see that [Appellant ] had “stuck” a kn ife in his stomach. Kent hit [Appellant]
, who dr opped the k nife. Kent told [Appellant[ tha t they should talk abo ut things “like men,” and [Appellant] sat up. Ken t returned to his truck, got his gun, called police, and detained [Appellant] until police arrived.

When po lice arr ived, they se cured Kent ’ s gun and re co vered [Appellant ’ s ] knife from the parking lot. The responding of ficers found the Ford truck with the hood ajar, w ith wires hanging down underneath the driver ’ s side, and with its ignition pried open as if someone ha d tried to ho twire th e truck. [Appel lant] first told police that he was trying to get into t he truck to sleep but lat er told them that he intended to hotwire th e truck so that he could drive it to go collect a debt and then return the truck.

2012 WL 604909 9 , at *1

.

To c larify th e role of t he two knives that Ap pellant seeks to have tested, the

kn ife described in the q uoted background i s the K obalt

. The DNA test on th e

Kobalt ’ s handle was introduced at Appellant ’ s trial ; it i ndicated that the han dle

contained a two

- per so n mi xture of D NA and that Appellant could not be exclud ed as

one of the contribut ors

. The Gerber i s not mentione d in the quoted background ; the

ow ner of the Ford pickup foun d it on th e truck’s floorboard the mo rning after the

incident.5 Again, Ap pellan t seeks retesting of the Kobalt and testing for the first time of

the Gerber. Appel lant ’ s Cha pter 64 mot ion had two basic th em es : ( 1) the FB I testing
methods had been upd ated since the time of th e original testing of the K o balt
, and

(2) DNA testing of th e K obalt would show an a bsence o f the victim ’ s and his DNA

on its handle and blade

— t hus negati ng the possibility that the victim was stabbed

with the knife

. The m otion ’ s most deciph erab le presentation of this argument is as

follow s :

A newer and c o mplete test of the Kobalt and Ge rber kni[f]e blades, handles, and inside casings wi ll positiv ely demonstrate an absence of Kent ’ s and [Appellant ’ s ] DNA. Thereby, there is a reasona ble prob abili ty that, if the jury heard probative evidence t hat Kent ’ s a nd [Appellant ’ s] DNA [was] not foun d on the evidence, [Appellant] would not have been foun d guilt y o f the aggr [a] vated element of intentionally, knowingly, viciously [,] and savagely stabbing Mr. K ent as w as pr esented to the jury and contested herein. Again
, the [s] tateme n ts made by the Sta te are the only evidence that constitute s the charged of fense.

T he trial court denied Appe llant ’ s motion and made numerous findings of fact:

1. On Septemb er 9, 2010, be twee n 2:00 a.m. and 3:00 a.m., tow truck driver Char les Ke n t noticed a 1977 Ford F

- 15 0 pickup truck parked in a warehouse lot with its hood o p en ne ar In terstate 30 and Las Vega s Trail.

2. Mr. Kent s aw [Appellant] u nder the truck’s hood on its passenger side.

3. After circling the block, Mr. Kent r e

- ap pr o ache d the parked truck whose hood was now closed, but he did not see anyone around the vehicl e.

4. Once Mr. Kent re turned to his tow truck, the pickup truck’s driver side door suddenly opened.

5. [Appellant] scrambled out of the truck and took o f f running.6 6. Real izin g that [Ap pellant] was stealing the vehicle, Mr. Kent intuiti vely gave chase in his tow truck.

7. When he caught up to [Appellant] , Mr. Kent pointed his gun through his passenger side window and t o ld him to “fr eeze [

. ” ]

8. [Appellant] hastily turned in the opposi te direction back towards the parked pickup tru c k.

9. Mr. Kent left his tow tru ck to capture [Appellant] but did no t bring his g un b ecause he did not think he would need it to defend himself.

10. Wh ile straddling [Appellant] a nd stru gglin g to hold him down, Mr. Kent f elt a sharp pain in hi s s tomach.

11. [Appellant] had a knife clenched in his white

- knuckled hands [] and

was pushing it into him.

12. Mr. Ken t punch ed [Appellant] unti l he th rew the k nife about an arm’s length away.

13. Mr. K ent eventu ally calmed [Appellant] dow n so tha t he could call the police.

14. When [Appellant] resume d get ting anxious, Mr. Kent drew his gun and ordered [Appellant] to stay put until t he poli ce arriv ed.

15. Officer Chris Bolling found both [Appellant] and Mr. Ke nt at the

scene [] and took [Appellant] into custody

.

16. Of ficer Bolling found a blue folding pocket knife

– the Kobalt kn ife

– in the open position on the ground clo se to w here [Appellant] had been sitting.

17. Inve stigati ng th e pickup truck, Officer Bolling s aw that the hood was ajar [,] and [] inside its cabi n, the ignition h ad been pried ope n and cut wires were hanging around the driver’s side as if someone had been

t rying to “hot

- wire” the truck to steal it.7 18. Officer Manuel Ram irez testified tha t it lo oked like someone was attempting to “hot

- wire” th e t r uck to steal it.

19. Officer Bolling and Officer Ramirez both opined that the knife used

can cause seriou s bodily injury or death.

20. Shaun Riddle, the truck’s owner, testifi ed t he truck was ope rable on the night of the offense [,] and it [s] ignition switch was intact.

21. M r. Ridd le tes tified that he had given no one permission to use his

truc k.

2 2. Mr. R iddl e testified that it appeared that someone had tried to run a wire from the positi v e post on his truck’s bat tery to the ignitio n co il to

s tart i t.

23. Although Mr. Kent’s wound initially appeared to be a pinprick or a b ruise, it fest ered to the point where he required a tetanus inoculation and antibiotics.

24. Or chid Ce llmark La borat ory conducted pre [] trial DNA testing on the Kobalt knife at [Appellant ’ s ] request.

25. Using Short Tandem Repeat (STR) testing, the laboratory o btained a two [

- ] person mix ture DN A prof ile from the knife’s handle from which [Appellant] could not be exclude d.

26. The Orchid C ellmark Laboratory’s DNA testing r esults are probative inculpato ry evid ence t hat [Appellant] handled the Kobalt knife

r ecovere d from the crime scene.

27. The Orchid Cell mark testing r esul ts are probative inculpatory

ev idence that [Ap pellant] c ommitte d this offense.

28. [Appellant] makes no credible showing that newer testin g techniques, capable of providing more

- ac curate or more

- probative results than the STR testing done in 2011, are available.

29. There is n o reasonable likeliho od that any new DNA testing technique would p rovi de a more accurate or probative result.8 30. [Appellant] has failed to meet the re quireme nts for new p ost [] conviction for ensic DNA testing of previously

- tested evidence.

31. Mr. Rid d le testified that he f ound the Gerb er knife inside his truck near th e pedal s on t he morning after [Appellant had ] tried to steal it.

32. The G erber knife rem ain ed in Mr. Riddle’s possession until he brought it to court with him when he testified.

33. Mr. Riddle testi fied th at the Gerber kn ife did not belong to him.

34

. T he G erber knife doe s n ot meet the chain of custody requirement for post [ ] convicti on fore nsic DNA testing because it (1) was not secured in relation to the offens e and (2) was not in the State’s possession u ntil Mr. Riddle br ought it to court when he testi f ied.

35. [Appellant] testified during the punishment phase that Mr. Kent [had ] confr onted him while he was trying to steal a truck, that he [had] pulled a knife to get Mr . Kent o ff him, and that Mr. Kent was stabbed duri ng this confrontation.

36. [Appellant] admits in this motion that he got into an altercation with Mr. Kent while t rying to “unlawfully borrow” Mr. Riddle’ s truck

.

37. [Appellant] does not meet the identi ty req uirement for po st [] convicti on forensic DNA testing.

38. Significant non

- DNA evidence establishes that [Appellant] stabbed Charles Kent when confr o nted d u ring t he process of stealing Shaun Riddle’s truck.

39. [Appellant] has not shown by a pre ponderan c e of the eviden ce that

new “ exculpat ory” DNA testing results would establish a reasonable probability of his non

- conviction.

40. [Appellant] h as fail ed to mee t the requirements of article 64.03 for post [ ] conviction forensic DNA testing. [Record references omitted

. ]9 III. D enia l of A ppe l lan t ’ s DNA Motion W as Proper

I n a single issue with multiple subparts, Appellant challenges the denial of his

C hapter 64 motion. We address his arguments after setting forth the standard of

revie w and the law applicable to DNA testing under Cha pter 64.

A. S tandard of Revie w

We u t i lize a bifurcated standard when review i ng a trial court ’ s decision

di sposi ng of a Chapter 64 motion

. Rivera v. State , 89 S.W. 3d 55, 59 (Tex. Crim. App.

2002). We afford almost total deference to the trial court ’ s de termination of his torical

fact s and ap p lication

- of

- law

- to

- fact issues that turn on credibility and demeano r, whil e
we review de novo other application

- of

- law

- to

- fact i ssues. Id.

B. Standards to O btain DNA T esting under Chapter 64 of the Code of C riminal Procedure

T o o btain post conviction DNA testi ng , the movant must meet the
requirement s of Art ic le 64 .0 3 o f t h e Code of the Criminal Procedure , which provides

that

( a) A convicting c ourt ma y order fore nsic DNA testing under this chapter only if:

(1 ) the co urt finds that:
(A) the evi dence:

(i) stil l exists and is in a condition making DNA testing p ossibl e ; and

(ii) has been subjected to a chain of custody suffic ient to establish that it has n ot been10 substituted, tampered with, replaced, or a ltered i n

a ny mat erial respect;
(B) there is a reas onable likelihood that the evidence contains biologica l ma ter ial suitable for DNA testing; and

(C) i dentity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of th e evidence that:
(A) the person would not have been convicted if exculpatory results had been obt aine d t hrough DNA testing; and

(B) the re quest for the proposed DNA testing is not made

to unre asonably delay the execution of sente nce or administ ration o f justice.

T e x. Code Crim. Pro c

. Ann. a rt. 64.03(a)

.

The motion seeking D NA testing must meet spec ifi c statutory requirements

.
Overall
, “ [a] convicted person may submit to the co nvicting cour t a motion for

forensic DN A testing of evide nce that has a re asonable likelihood of containing

biolo gical material. ” 2 Id. a rt. 64.01( a

– 1 ). T he statute enumer ates t h e fo llowing
requirements that a re relevant to th e context of Appellant ’ s moti on :
(b) The m o tion may request fo rensic DNA testi ng only of eviden ce descri bed by Subsection (a

– 1) that was secure d in relation to the offense that is the basis of the chal leng ed convict ion and was in the possession of the [S] tate during the trial of the offense, but:

2 Biologica l material is def ined as “ an item tha t is in poss ession of the [S] tate and that c ontains blood , semen, hair, saliva, skin tissue or cells, fingernai l scrap ings, bone, bodily fluids, o r oth er identifiab le biological evidence that may be suitable for forensi c DNA test ing

. ” See Tex. Code Crim. Proc. Ann. a rt. 64.01(a )( 1).11 (1 ) was not pr eviously subject ed to DNA testing; or
(2) although previously subjected to DNA te sting:

( A) can be subjected to testing with newer testing

tec hni que s that provide a reasonable likelihood of results that are more accurate and probative t han the re sults of t he previous test [

. ]

Id. a rt . 64.0 1 ( b )

. Further, the motion “ must be accompani ed by an affidavit, sworn to
by the convic ted per son, cont ain ing statement s of fact in support of the motion. ” Id.

a rt. 64.01( a

– 1 ).

C. Analy sis

W e will explain in turn why the trial court acted with in its discreti on to deny
Appellant ’ s moti on f or testi ng the Gerber an d the K obalt knives

.

1

. The trial cour t p roperly denied testing of the Gerber knife.

T he trial court did not err by denying Appel lant ’ s request to test the Gerber

bec ause (1) a test res ult e stablish ing that Appellant ’ s DNA was not o n tha t knife does

not c reate a g reater than 50% chance the jur y would not have convicted him in light

of other evidence establishin g his gui lt
, and (2) t he Gerber was not subject to a chain

of cu stod y that wou ld have pr eve nted po tential adulteration of any biol ogical material

f

ound o n it. T he Gerber was found in the floorboard of the truck by the truck ’ s

owner the morning after the events of the offense. The owner retained posses sion of

the knife until he bro ught it to Ap pellant’s trial.12 A specific requ iremen t of Chapter 64 i s that “ the person would not ha ve b een
convicted if exculpatory r esults had been obtained through DNA testing

. ” See id.

art

. 64. 03(a) (2 )( A

). W e recently fleshed out Appellant ’ s burden a s fol lows:

Un der Article 64.03, a co nvicted person i s not entitled to DNA testing unless he first sh ows tha t there is “great er than a 50% chance that he would not have been convicted if DN A testing provided exculp atory results.” Ex parte Gutierrez , 337 S. W.3d 883, 899 (Tex. Crim. App. 2011) (quotin g Prible [ v. State ] , 245 S.W.3d [ 466
, ] 467

– 68 [(Tex. Cri m. A pp. 2008)] ); see also Smith v. State , 165 S.W.3d 361, 364 (Te x. Crim. App. 2005). This burden is met “if the record shows tha t exculpatory DNA

test re s ults, excludi ng the defendant as the donor of the ma terial, would establish, b y a pre ponderance of t he e vid ence, that the defendant would not have been convicted.” Gu tierrez , 337 S.W.3d at 899. “A ‘favorable’ DNA test result must be the sort of evidence t hat would af firmatively cast doubt upon the validit y of the inmate ’ s conviction ; other wise, DNA

tes ting wo uld simply ‘muddy the waters.’ ” Id . at 892.
Copple v. State
, No. 02

- 19

- 00120

- CR
, 2020 WL 101867 , at *4 (T e x. App.

— Fort Wort h
Jan. 9, 2020, no pet. ) (mem. op., n ot designated for publication) . A m ova nt f ails to

meet th is burden when “the record con tai ns other substant ial evi dence of guilt
independent of that for which the movant seeks DNA t esting.” Swe a ringen v. State , 303
S.W.3d 728, 736 (Tex. C rim. App. 2010 ) ; see Dunn ing v. State , 572 S.W.3d 68 5, 698
(Tex. Crim. App. 2019) ( holding that if t he e xcu lpatory value of potential test results

were w eighed against inculpatory evidence , appellan t had failed to show proba bility

that h e would not have be en convicted).

It is unclea r what Appellant hopes t o prove through testing of the Gerber. His

bri ef s tat es that the evidence of the Gerber’s discovery was “fabricated” by the truck

owner and the State. Even if we accept that the facts surrou nding the Gerber’s13 discovery suggested a fabrication of evidence
, we do not understand how the ab s ence

of Appellant ’ s DNA impacts the argument that is the basis of his moti on , whic h is

th at he did not stab the victim

. No one contended that he had used the Gerber to

stab the vi ctim ; indeed, Appellant ’ s brief highlights the victim ’ s statement s at tr ial tha t

he had never seen the Gerber. If we assume Appellant ’ s argu ment is that t he lack of

his DNA on the Gerber undermines the evidence that h e was ever in the pickup
, the

evidence of th is fact is overwhelming an d wa s not disputed by Appell ant at trial.

Further, the knife was in the possession of the truck o wner from the morn ing af t er

t he offense until tria l

. Balancing the distinct possibility th at the tru ck owner ’ s
handling of the Gerb er adulterated Appe llant ’ s DNA on the Gerber ag ainst

A ppellant ’ s concessio n and the undisputed ev idence that he was in the truck

demonstrates why additional testing wo uld not provide e xculpatory evidence
undermining the proba bility of Appellan t ’ s convictio n. It wo uld not stir the waters
enough even to muddy them.

And the poss ession of the Gerber b y the t ruc k owner provides an add itional

bas i s for the denial of Appella nt ’ s moti on. A r ticle 64.03 requires that the article to be

tested “ has been su bjected to a chain of cus tody sufficient to establish that it h as not
been substituted, tampered with, replace d, or a ltered in any materia l respect

. ” See Tex.

Code Crim. Proc. Ann. a rt. 64.03(a)( 1 )( A

) (i i) ; Reed v. State
, 541 S.W.3d 759, 7 70 (Tex.

Crim. Ap p. 2017) ( stating that ev idence handle d by a number o f people a nd stored

“ commingled in a common repository ” cast “ doubt on the evidence ’ s integrity ” ).14 Here, the trial court ’ s fi ndings discussed that the owne r had found the G erber

in his truck and ha d pos session of it unti l Ap pel lant ’ s trial

. Based o n these f act s , the

trial court also found that the Gerber did not meet Chapte r 64 ’ s chain

- of

- custody
requirements be cause it “ (1) was not secured in relation to the offense and (2) was not
in the State’s posse ss io n un ti l [the truck owner] brought it to court when he testified. ”

This is a finding of historical fact to wh ich we pay great deference. Noth ing

demon strates an abuse of disc retion in the findi ng s regardi ng the deficient chain of
custody for the G erbe r

.

M any o f Appellan t ’ s other argument s attack matte r s that have nothing to do

with whether DNA testing of the Gerb er was warranted

. These include cha llen ges
that the Gerber was illegally brought into the co urthouse and that it was impro perly

admitte d in t o evide nc e

. Those conten tions may not be considered in a Chapter 64
proceeding
, and we have no juri sdiction to address them in this app eal. See Ford v.

State
, No. 02

- 18

- 00080

- CR
, 2018 WL 4627163 , at * 2 (T e x. App.

— Fort Worth
Sept. 27, 2018 , n o pet.) (mem. op., not desi gnated for publication) ( stating that “ t o the

extent that Ford ’ s argume nts on app eal b roadly challenge his conviction on other
grounds, those challenges are beyond the scope of a [C] hapter 64 proceeding, and we

do not cons ider th em ” ); McCain v. State
, N o . 02

- 15

- 0 0469

- CR
, 2016 WL 4491226 , at

* 2 n.5 (Tex. App.

— Fort Wort h Aug. 16, 20 16, no p e t.) (mem. op., not desi gnated for
publi cation) (“Appellant’s brief raises other issues that are outside the scope of this
appeal, inclu ding ‘ p ros ecutorial m isconduct
, ’ ‘ vindictive/ selective prosecution, ’ hiding15 or tampering with evidence, and challenge s t o the indictment made agains t him i n the
original case. We decline to address these issues, as we do not have the jurisdiction to

do so

. ” ); Re ger v. State
, 222 S.W.3 d 510, 513 (Tex. App.

— Fort Worth 2007, pet. ref ’ d)

(same)

.

2. The trial court prope rly den ied DNA testing of the Kobalt knife.
Appellant ’ s request for testing the Kobalt fail s to m eet almost every sh owing

needed to obtain po st co nviction DNA tes ting

. To obtain new testing, identity must
be in issue. Yet, Appellant concede s that identity was not in issue at trial and is not

now an issue ; instead, he contends on ly that he did not commit all the elements of the

offe nse

. Ind eed , he admits that he held the k nife while committing part of the

offense ; this validate s the accuracy of the prior te st and undermines any claim that a

new test might produce a different res ult. Also , h is moti on is fatally conclusory in its

all egation t hat add itional DNA te st ing w ould produce a different result than that
obtained originally

. Finally, h e also fails to a llege that bi ological material e xists to te st
his theory that the victim ’ s DNA is not on the Kobalt ’ s b lade.

To o btain testin g under C hap te r 64, the movant mus t establi s h that “ identity

was or is an issue in the case ” and that a preponderance of the evi denc e shows “ the

p erson would not have been c onvicted if exculpatory results had been obtained
through DNA testing

. ” Tex. Code Crim. Pro c. Ann. a rt. 64.03(a) (1)( C )
, ( 2 ) (A )

.

A ppellan t has admitted his way out of meeting either requirement

.16 A t every step in the process , A ppellant has admitted t hat h e was properly

identified as the person who was attempting to ste al the truck involved in th e o ffen se,

but he now de nies that he committed one el ement of the offense

— that he used or

ex hibited a deadly weap on in its commission

. See Tex. Penal Code Ann. § 29.03(a)(2).

In other words , he acknowledges every element of the offense and what occurre d

ex cept for using the Kob alt (the d eadl y weapon) to attempt to s tab the victim

. His

brief a rticulates th is distinction as follows : “ Identity is a major issue in t his case but
not with the identity of the appellant. The issue of mistaken identity i s with th e

al leged dead ly weapo n. ” Spec i fically, his motion states his knife

- f ree version of events

as follows:

[ While Ap p ell ant ] admitt edly at tempt ed to unl awfully borrow the vehicle , . . . a Mr. Charles Kent ( “ Ken t ” ) drove up to the scene [ and bra ndi shed a han dgun. ]

. . . [Appellant ] immedia t ely fled in f ear of hi s life as he had no way of knowing what Kent wante d or planned to do and Ke nt gave chase. Kent
, who [] is over a foot taller and 100 l bs heavier easily dwa rfed [Appellant]

. In fear and s cra mbli ng from the unknown assailant w [ie] ldin g a firearm giving chase, [Appellant] fell to the ground [,] and Kent jump ed atop of him pinning him to the grou nd.

A t that point [,] Kent identified himself as a tow truc k driver who only wan ted to ta lk to [ App ell a nt] and see why he was running a way. [Ap p ellant] sat up and patiently conversed wit h Kent without incident. Af ter [Appellant] had told Kent that he did not own the truck [,] Ken t calle d the police [,] and they both awaited for authorities to arrive. [Footnote omitted.]

This version of events d o es not match App ellant ’ s trial tes timony. A s the trial

court foun d
, “ [Appellant ] testified during the punishment phase that Mr. Kent

confronted him while he was trying to steal a truck, that he pulled a k nife to get Mr

.17 Ke nt off him, and that Mr . Kent was stabbed during this confrontati on. ” Appellant’s

br ief does not di spute th at finding but instead cla i ms that he made the statements

because h e feare d a harsher punishment if he did not accept the St ate ’ s ve rsio n of

events

. And in the same parag raph of hi s brief where he now contends that his prior

sworn testimon y was untruthful, Appellant concedes that the prior DNA result was

accu rate in determining tha t his D NA might be on the Koba lt ’ s han dle : “ The
appella nt has never said he did not have a k nife. He did, to use as a tool to attempt to

steal the truck. Appellant ha s ne ver de nied trying to steal the truck [,] but the factual
evidence is the appellant did not use a knife to stab Kent. ” His argument is that new
DNA testing would “ prove there is no way po ssible the appellant hand led the knife in
the way Mr[

. ] Kent tes tified to
, ” apparent ly based on his s peculation that i f he had
gripped the knife to stab the victim , he would ha ve left more DNA on the handle

tha n the previous tes ting revealed. A s there are only two kni ves at issue, and bec ause
App ellant contends the Ge rber was a plant, the knife that he is referring to must be

the Kobalt.
Thus, Appellant wants DNA tes ting to di sprove that he held a kn ife that he

now adm it s holding ; t hus, Appellan t self

- ide ntifies as both the person attempting t o

steal the truck and th e holder of the kn ife. W e have repeatedly held that if ident i ty i s

not and has never been a n issue, DN A te sting is not warranted. See Duran v. State
,

No. 02

- 17

- 00405

- CR, 2018 WL 307 5030, a t * 2 (Tex. App.

–– Fort W orth June 21,
2018, p et. ref ’ d) (mem. op., not desig nated for publication) (“[B]ecause identity was18 not and i s not a n issue, the trial court pr ope rly denied his [C] hapter 64 motion for
DNA testing.”); Diaz v. State , No. 02

- 17

- 00003

- C R, 2018 WL 3 59958, at *3 (Tex.
App.

— Fort Wor th Jan. 11, 2018, n o pet.) (mem . op., not designated for publication)

(“Diaz ’ s complaint i s fata l ly flawed because Diaz do es not raise an issue as to the
identity of who he claims would have been the assai lant ot her than him self

. . . . ”);

Rege r , 222 S.W.3d at 514 (“ [Reger ’ s] contention fails to raise an issue as to the ident ity

of the perpetrator of the alleged offense, which is required under the plain meanin g of

[ C hapter 64].”).
Admittedly, i n some c i rc umstanc es , over whelming e viden ce of identification

and the statutory p roh i bi tion against re lying solely o n a party ’ s con fes sion as a bar to
DNA testing do not forestall a right to testing ; those circumstances are not present in

this case

. See Esparza v. S tate , 2 82 S.W.3d 913, 9 22 (Tex . Crim. App. 2009) ; Blacklock v.

State , 23 5 S.W.3d 231, 232

– 33 (Tex. Cri m. App. 2007) ; P eg ues v. State , 518 S.W.3d 529,
535 (Tex. App.

— Houston [1st Dist.] 2017, no pe t.) ; see also Tex. Cod e Crim. Proc.

Ann. a rt. 64.03( b ) ( “ A c onvicte d p erson who

. . . made a co nfession or similar
admission in the case may submit a motion under this cha pter, a nd th e co nvicting
court is prohibited from finding that identity was not an issue in th e case solely on the
basis of that plea, confessi on , or ad mis sion, as applicable. ” )

. The cited cases are

sexual assault cases , and in their context, their holdin gs make s ens e. I n some sexual

assault s, the absence of the defendant’s biological material or the presence of

another ’ s excludes the possib il i t y tha t the defendant committed the crim e

— no matter19 what other evidence identified him as the perpetrator o r his ac k nowledg em ent s of
culpability

. But outside that unique ci rcumstance , it cannot be an abuse of discretion

to deny further DNA testing when the t rial reco rd, Appellant ’ s stateme nts a t trial, his

C hapter 64 motion, and his brief all negate any challenge to id entity an d c onfi rm th e
accuracy of the prior D NA testing result

. Also, Appellant ’ s moti on i s defici en t in its attem pt to allege that ther e i s

biol ogica l material that “ can be subj ected to testing with n ewer testing techn iques that
provide a reasonable lik elihood of res ults that are more accurate and probative than
the results of the previous test

. ” See Tex

. Code Crim. Proc. Ann. a rt. 6 4.01(b) ( 2)(A).

A s the Austin Cour t of Appe als recently noted
,

For r etesting, “the con victed person must show that althou g h p rev i ously subjected to DNA testing, the evidence can be subjected to testing with

newer te chniques that provide a reasonable likeli hood of results th at are

m ore accu rate and probative than the result s of the previous test.” See Padilla v. State , Nos. 0 3

- 1 2

- 00 299 [

- CR, 03

- 12

- 00300

- CR, 03

- 12

- ] 0 0301

- CR, 2013 WL 3185896, at *5 (Tex. App.

— Austin June 20, 2013, pet. ref ’ d) (mem. op., not des ignated for publi cation). “To meet this bur den, the co nvicted person must provide statements of fact in support of his cla ims ; ge neral, conclusory st atement s are insufficient.” Id.

I

n re Kell er

, N o . 03

- 18

- 00420

- CR
, 2019 WL 1561817 , at *4 (Tex. A pp.

— Austi n
Apr. 11, 2019, p et. ref ’ d) (mem. op., not designated for publication) . Here,
Appellant ’ s moti on did allege that “ FBI te sti ng m ethods

. . . recently require [d]

ac credite d DNA Labs in the State of Texas t o use a minimal 22 loci test. This gives a

more ac curate and relia ble result an d pre sents a grea ter chance that prior unknown
DNA can be properly identified. ” This i nfo rmat ion was contain ed in a l et ter fro m a20 lawye r who had represented Appellant on a prio r Chapt er 64 motion ; Appellant

attached the letter to hi s motion. Though Appe llant ’ s moti on cont ains something

mor e th an a bare conclusion that a new DNA test woul d produce a differ ent result
,
his allegation is still conclusory

. The statute ’ s require ment

— that th ere be fact ual
support for the c laim that new te sti ng woul d be more ac curate and probative

— would

be a meaningless formality if that requirement were sati sfi ed with t he allegation that

someone of unknown qualifications had told the movant that there wa s a new testing
regime n , and based on thi s change, t h at must m e an th at a differe nt result would occur

if the item were retes ted

. 3

Final ly, o ne contention in Appella nt ’ s moti on is tha t testing the Kob alt would

show an absence of the victi m ’ s DNA on the knife blade and thus disprove that he

stab b ed the victim with th at knif e

. The m oti on does n ot allege that the re is an

existi ng sample of the victim ’ s DNA that could te st this c onten tion. The inventory

attached to the Stat e ’ s A rt ic le 64.02 notice mentions no such sample. 4 Further, if a
sample doe s not exist
, a Chapter 64 mo t i on can not be used to compel the collection

of add itional sampl e s

. See Castro v. St ate , N o . 01

- 17

- 0 08 58

- CR
, 2019 WL 3330969 , at

3 Specifically , the trial cou rt found Appellant ’ s m otion to be defici ent because

“ [

Appella nt ] makes no c r edible sh owing t hat newer t es ting techniques, capable of providing more

- accurate or mo re

- probati ve resu lts than the STR testing don e in 2011, are available. ”

4 Article 64.02( a) (2) requires the State to deliver evi dence to the trial cour t o r explain why it cannot be delivered. See T ex. C o de Crim

. P r oc. Ann. art

. 64.02(a) ( 2).21 *2 (Tex. App.

— Houst on [1 st D ist.] July 25, 2 019, pet. ref ’ d) (mem. op., not
designated for publication ) ( “ On it s face, Ch apter 64 provides sol ely for the testing of

evid ence th at previously was secu red by the [S] tate and was in t he [S] t ate ’ s possession

at trial. As a matter of law, Castro cannot compel [the compl ainant] to submit a DNA
sample for comparis on post [] conviction

. ” (citat ion omitted ) ) ; McCain
, 2016 WL

4491226, at * 2 ( “ Appellant has not shown t hat any evidence exists to test for DNA

an d, i n fac t, admit s that no such ev idence exists. If evidence does not exist, the trial
court cannot order DNA testing. ” ). Thus, Ap pellant ’ s Chapter 64 motion fails

becaus e it makes no allegation of an exis ting sample; the record contains no eviden ce

that a sample exists to conduct a t est that might validate Appe llant ’ s theory ; and if t hat
sample does not exist , a Chapter 64 motion pr ovides n o m e ans to obtain it.

Because t he trial court acted well within its discretion to deny Appellant ’ s

C hapter 64 motion
, w e overr ule Appellant ’ s so le issue

.

IV. Con clusion
Having overruled Appellant ’ s sole issue, w e affirm t he trial co urt ’ s order

de n ying Appe l lant ’ s reques t for forensic DNA tes ting

. /s/ Dabney Bassel

Dabne y Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered : March 26, 2020