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

M E M O R A N D U M O P I N I O N

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).
2

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))).
3

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.
4

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:
5

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.
6

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).
7

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.
8

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)).
9

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).
10

(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.
11

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
12

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.”
13

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 “strangervictim 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 
14

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 
15

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 
16

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).
17

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

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