### 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 Thirteent h Court of Appeals. 1 See Robertson v. S ta te , 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 b y our sister court:

1 T he Suprem e Court of Texas transferred the direct appeal fr om thi s Court to the Thirteenth Court of Appeals p ursuant to its docket equalization authority

. See Misc. Docket No. 06

- 90 63 (Tex. May 30, 2006); see also T ex. Gov’t Code § 73.001 (authorizing transfer o f c ases between courts of appea l s).2

Appellant a nd his t wo 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 separ ate time s beginning when she was fourtee n y ears 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 b aby.

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 . Neithe r appellant [n ] or Robert son I I 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 200 9 , app ellant fil ed two separate pro s e requests for the appointment of
counsel to ass ist hi m in seeking post conviction forensic DNA testing , which were both denied

. See Tex. Code Crim. Pro c. art. 64.01 (c)

. In 2018, he filed a third pro se request for appoint ed
counsel , which was also denied

. See id. Appellant attempted to appeal the tr ial co urt ’ s order denying his third request for appointed counsel; t his 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 designat ed 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 pr elimin ary decision that is appropriately reviewed as alleged error after a motion for DNA testing is denied ” (citing Gut ierrez v. State , 307 S.W.3d 318, 323 (Tex. Cr im

. App. 2010) ))

.3 A ppellant then filed a pro se motion seeking postconv i ction f orensic DN A test ing.
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 descript i on of the condit i on 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 evid ence maintained by the police department and a list of
evidence a dmit ted a t trial, and a supplemental response , which attached as exhibits a DPS crim e lab report concerning the sub mitted evidence items tested in the case an d an affidavit of the
evidence cu stodian from the police department

.

After reviewi n g appellant’s mot ion a n d the evidence in the cus tody 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 ha ve tested

. 2 Regarding appellant’s motion, t he tr i al co ur t 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 testin g of the following listed items “con t aining biological mat erial” : “Sy ri nges, Hair, condoms, Spermicide Applicators, Mattress C avers (sic), Seat Covers, Flooring or, Tissues, Swabs, QTips, Foam [. ” ]

2 Ten days before signing the order, the trial court mailed a lette r to appellan t with a copy of the State’s supplemental response. In th e letter, the court explained “the legal process of applying for post

- conviction DNA testing,” which included se t ting forth the applicable statutory provisions and relevant standa rds ex p ressed in ca se law. The trial ju dge then informed appellant, “After r eviewing your application, and the evidence remaining in custody, I h ave found th at the application and evidence do not satisfy the requirements of Chapter 64,” and conveyed the court’ s intention to deny appellant’s mo tion due to the failure to satisfy th e requirements set out in articles 64.01 and 64.03

.4

3. The motion for DNA testing fails to allege facts that wou ld show, by a preponderance of the e v idence, the require ments o f Art. 6 4.03, 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 conv icted if exculpatory results had bee n obtained through D NA tes t ing, a nd 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. Evi d ence admitted dur ing Mova n t’ s t ri al 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 syring es, hair, condoms, spermicide applic a t or, mattress cove rs, seat cover s, 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 b lood 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 furt her, does not seek testing of the b l o od samples.
3. T he evide n ce in t he 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 evide n c e in the possessi on of th e clerk, corre sponding 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, tamper ed with, replaced, altered or remaine d uncontaminated to allow f o r testi ng.

W ith 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: upholste r y from the vehic le of Tom R obertso n (sea t 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 d one by the Department of Public Safet y because the ite ms 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 pr e c eding the seizing of evidence. DN A woul d 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 e rr or, he
argu es that the t rial court e rred 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 Testin g We review a trial cou rt ’ s dec ision 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 sta ndard, we

a fford almos t total deference to a trial court ’ s determination of issues of historical fact and its

3 Specifically, the trial testim ony concerning the mattresse s and sheets wa s that they were “so covered with various stains and secretions and, in f act, layered stains on this

— on these covers” that the lab personnel “ didn ’ t feel like that

— that that they could do an ade quate and effective test on t hese mattress covers.”

4 In t he order denying testing , the court “ also decline [d] to appoint counsel fo r 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 th e trial court ’ s applicatio n 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 tri al record and af

fidavit of appellant a re the o nly 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. Ap p. 2005) (bec aus e tria l
court did not hold liv e 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 D NA testin g be

con ducte d “on the follow ing evid ence containing biological material, NAMELY [,] Syringes, Hair, condoms, Spermicide Applicators, M attress C [o] vers , Seat Covers, Flooring or Tissues,
Swabs , Q

- Tips, Foam.” In an “ affidavit ” attached to his mo ti on, 5 app ell ant appear s to recount tria l test imony from the child victim that describe d an incident in which appellant had sexual

5 A m otion for forensic DNA testin g must be accompanied by “an affida vit, sworn to b y the convicted person, containing statements of fact in s upport of the moti on.” See T ex. Code Crim. Proc. art. 64.01(a

- 1); see Dunning v. State , 572 S.W.3d 685, 697 (Tex. Cri m . App. 2019) (explaining that defen dant “must incl ude an affidav it” when filing motion to obta in DNA testing). Although appellant’s moti on is not accompan ied by the required s w o r n
- to affidavit, it contains an affidavit with an “inmate’s declarat ion” in wh i ch appellant swears “under pe nalty of perjury” tha t the facts c ontained in the affidavit are “ true and correct.” This Court has previous ly held that simil ar verifica tion was sufficient to satisfy the affidavit requirement. See In re Fain , 83 S .W.3d 885, 889 n.4 (Tex. App.

— Austin 200 2, no pet.); see also Tex. Civ. Pr ac. & Rem. Code § 132.001(a) (a llowing “unsworn declaration” to be used in lieu of affidavit ). Although appellant’s declaration does not include his date of birth, we conclude that i t neverthe l ess substantially complies wi th the statutorily pr escribed decl aration form. See Tex. Civ. Pr ac. & Rem. Code § 132.001(e) (setting out p rescribed declarat ion form fo r inmate); see also Bahm v. State , 219 S.W.3d 391, 393 (Tex. Crim. App. 2007) ( explaining that requirements of “unsworn decla ration” “are si mply that the unsworn declar ation must be (1 ) written and (2) ‘subscribed by the person making the declar ation as tr ue under penalty of perjury’ ” and clarifying that only substantial compliance with prescr i bed form in statute is necess ary).7

intercourse with her in his truck after he put a syringe or spermicide applicator “ up in ” her an d “the foam squirted into the v ictim’s vag ina.” 6 Ap p ellant a vers i n his un sworn 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 sh ow [his] innoce nce. ”

U n der Chapter 6 4 of the Code of Criminal Proce dure, “[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 Cr im. Proc. a rt. 64.0 1 ( a
- 1 ).
Severa l requirements must be me t in o rder 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, 6 4 .03; see also Hall v. State , 569 S.W.3d 6 4 6, 655 (Tex. C rim. App. 2019) (confirm ing th at 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 req uirements, the conv i c ted person mu s t provide statements of fact i n 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 S wea ringen v. S tate , 303 S.W.3d 728, 73 2 (Tex . Crim. App. 2010) (stating that “a mere assertion or a general claim” will not satisfy Chapter 64 burden).

U nder Chapter 64, the convicting court may order DNA testing only if the court
finds that:

1. the e v i den ce “still e x ists and is in a condit ion ma king DNA testing possible;”

6 In her tria l testimony , J .J. described i ncident s of appellant ’ s sexual abuse of her that occurred in appellant’s bed room, on th e floor of his be d r o om, in Sam ’ s bedr oom, a nd in appellant’s truck. She said t ha t appella nt used the same metho ds o f birth control (the foa m spermicide a nd a condom) ev ery tim e.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 respe ct;”
3. “ the re is a rea s onable likelihood that the ev idence 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

. Cri m. App. 2011 ) ; see also Whitaker v. State , 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (noting findings that trial c ourt must make before it may order DNA testing). In addition, the convicted person must establish by a preponderance of the evidenc e that:

1

. h e “would not h ave been convicted if excu lpator y results had been obtained through DNA testing; and”
2. “the re quest for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.”

Tex. Code Crim . P r oc. art. 64.03 ( a)(2). T he record demonstrates that appellant failed to meet the statutory requirements of Chapter 64 for obtaining postconviction DNA testing

.

First , i n his motion, a ppellant did not explain whether the evidence sought to be
tested s til l exis ts and is in a condition capable of being tested. 7 T h e affidavit of the evidence custodian of the poli c e department, which was attached to the State’s supplemental response, indicates that several items that appellant sought to have test ed did no t “ s t ill e xist ” or never did

7 We also note that, in his motion, appellant lists items of evi dence gener ally without any specif ic identifying information, simply asserting that “[t]his evidence was secured in relation to the Offen [s] e of Sexu al Assault of a Child.” For e x amp le , he asks for “hair” to be tested, but fails to identify whose hair or when o r where such evidence w as 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 requ irements of a rt ic le 64.01, an appellant must clearly state, at a minimum, what evidenc e he wants tested.” (citing Dinkins v. State , 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) )

.9

exist for pur p oses of the statute because no such it e m s were collected during the investigation of appellant’s case

. 8 T he custodian stated that he found “ no record” of hair, spermicide applicators, flooring or tissues, swabs, Q

- tips, or foam “b e i ng submitted to the evid ence section in relation to
this case .”
In addition , the custodian stated that he was “unable to locate” a Ziploc bag containing disposa ble plastic syringes with disposable needles , which was seized pursuant to a

s earch w arrant a nd w as sub m itte d to th e 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 indivi dual at appellant ’ s request , a nd t he Zipl oc 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 a nd were su b mitted to the evidence storage at the poli ce depa rtment , although t he evidence custodian found no record of the release or destruction of
these item s
. “Affidavit testimony from a relevant witness that no biological evidence from the
case is m a intained o r possessed is suffic ient, absent any contrary evidence, to sup po rt de nial of a motion for forensic DNA testing.” Lewis v. State , 191 S.W.3d 225, 228 (Te x. App.

— San Antonio 2005, pet. ref’d) ; accord In re Fletcher , No. 03

- 19

- 0 0044

- CR, 2020 WL 7 4 2383, at * 3 (Tex. App.

— Austin F eb. 14, 2020, no pet.) (mem. op., not desi gn ated 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 articl e 64.01, the motion “may request forensic DNA test ing only of ev idence describe d 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 tr ial of the o ffense [.]” Tex. Code Crim. Proc. art. 64.01(b)

.10

(c oncluding that trial court’s finding tha t movant failed t o show that DNA evidence “still e xists and is in a condition making DNA tes ti ng po ssible ” was supported by record when State averred
that no testable DNA evidence exi sted and submitted affidavits of records custodians of d istrict

c lerk, po lice

- department c r i me l ab, an d police

- department p roperty r oom )

. Appellan t did n ot offer any evidence contradicting the affidavit evidence presented by the State that these items of
evidence did not “ still exist ” o r did not exist at a ll. See Gutierrez , 3 37 S.W.3d 8 91 ( ob s e rving
that courts have found that reas onable 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 admitt ed at trial and i n the posses sion of the district clerk, the only “ still
exist [ ing ] ” evidence item was the DNA swab o f t he infant child in this case . T he trial court
found that the swab was not in a condition capable of being tested given th at it had been stored in

a n op en cardboard box in the district clerk’s office and “ has not been subjected to a chain of custody sinc e the trial to establish confidence that it has not been substituted, tampered with, replaced, altered or remained uncontaminated to allow for testing. ” 9 S e e Reed , 5 41 S.W.3d at 770 (stating th at evidence handled by number of people and stored “commingled i n a common repository” cast “doubt on the evidence’s integrity”).

C oncerning the remain ing item s that appellant sought to have tested

— the seat

covers (f r om appell ant’s truck ) and the mattres s covers ( of the mattresses from the bedrooms of appellant’s h ome) , a n other threshold requirement under Chapter 64 is that “the convicted person
establi shes by a preponderance of the evidence that

. . . the person wo ul d not have been

9 We also note that the DNA p aternity testing previously done in this case demonstrated tha t ap pe llant’s son and co

- defendant was the father of the child. Thus, ex culpatory e vidence as to this DNA swab was presented to the jury at trial.11

convicted if exculpator y results had been obtained through DNA testing.” Tex. Code C rim.
Pr oc. art. 64.03(a)(2)(A). This means that a convicted person must show a greater t han 50%
chance that he would not have been co nvi cted if exculpat or y results from the requested DNA
testin g had been available at trial. Hall , 569 S.W.3d at 655 ; Reed , 541 S. W.3d at 774; see La R ue v. State , 518 S.W.3d 439, 446 (Tex. Crim. App. 2017) (“ This requires th e convicted person to show that he, more likely than n o t, would n ot have been convicted if res ults of the requested testing exclude him

. ”) . “ Exculpatory results” means only results e xcluding 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
show i ng has not been made if exculpator y test results would “merely muddy the waters.”
La R ue , 518 S.W.3d at 4 46; Rivera , 89 S.W.3d at 59.

As the trial court noted, appellant ’ s motion “[did] not al lege fac ts that would establish by a prepon derance of the evi d ence that movant would not hav e been convicted if exculpatory results had been obtai ned through DNA testing.” Instead, appel lant merely summarily asserted that “[t]he testing of the list of evi dence in this Affidavit; if it returns any useable DNA, will s how that none of my DNA is on the evidence, and that the evidence would show my inno cence.” How ever, the “facts” asserted in his un sw or n declaration recite trial testimony describ ing an incid ent in which appellant sexual ly assault ed J.J

. in his truck. T h e lab testing on the s eat covers before trial reflected that there were “no indi cations of s emen on the upholstery,” whic h included the seat covers of the driver’s seat, the center se at, and the pass enger seat of appellant’s truck. Appe llant failed to ex p lain

— or establi sh by a preponderanc e by the
evidence

—how DNA testing of the seat covers woul d produce exculpatory results that would12

exo nerate him. Given the absence of semen on the upholstery of a ppellant’s truck, 10 DNA on the

seat cove rs of someone othe r than appellant would neither support nor refute the alleged sexual

contact. S ee Rivera , 8 9 S.W.3d at 60 n.20 (observin g that “the absence of appellant’s DNA
would not indicate inno cence because it could simply mean none was depo sited”) ; s ee, e.g. , Whita k er , 160 S.W.3d at 9 ( concluding that DNA test of murder weapon “ would be
meani n gless ” under facts of case).

Concer ning the mattress covers, which remained in the custody of the police after being returned from the lab , the trial court noted the trial te s timony that indicated that the cr im e la b did not test t hese items because , given the ac cess to these items by multip le individuals in the
home (including all three of the all eged perpetrators) , they “were so covered with stains that

test ing was ruled out a s being able to reveal anything probati ve
. ” “[T]he significant possibility
of DNA bein g deposited by an innocent pe rson reduces the probative value of any exculpatory DNA test result,” H

all , 569 S.W.3d at 658, and t he probative value of DNA testing that e xcludes
a defendant is diminished if mu ltiple potent ial contributors could have handled the item sough t t o be tested , s ee Dunning v. State , 572 S.W.3d 685, 693 (Tex. Crim. App. 2019)

.

In sum , a ppellant has not shown by a preponderance of the evidence th a t he
would not have been convicted if e xculpa tory re sults had been obtained through DNA testing of
the “still exis ti ng” items of evidence that he sought to have tested

.

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

to e s tablish all of C hapter 64 ’ s requirement s. Gi ven th e deficits in appellant’ s motion and

un sworn declarat ion , the rec ord demonstrate s that appellant failed to satisfy the statutory

10 As the trial c ourt noted in its findings, J .J. testified t hat appellant “us ed a condom and a spermicide d urin g the assaults.”13

requirement s set out in a rticle 64.03. Thus, the trial c ourt did not abuse its discretion in denying appellant’s m otion seeking D NA testing. See Bell v. State , 9 0 S.W.3d 3 01, 306 (Tex. Crim. App. 2002) (recognizing that “a court must order testing only if the statutory preconditions are met”). We overrule app ellant’s first poi n t of error.

Due Process C l aim
In his secon d point o f error, appellant as serts that t he trial court’s denial of hi s motion for DNA testing violated his right to due process because “Chapter 64 was unconstitutionally applied to his situ ation.”

It is dif f icult to discern what, exactly, appe llant is compla ining about in this p oint
of erro r
. Appellant acknowle dges th at there is no substantive due process right to postconviction DNA testing, see Dist rict Attorney’s Office for Third J udi cial Dist rict v. Osbo r

ne , 557 U.S. 52, 72 (2009) (declining t o reco gnize freestanding, substantiv e due proces s right to DNA evidenc e ) , but appears to assert that , in requiring that “ identity be an issue ” in the c ase , the D N A testing statute violates proced ural due process beca u se “ the failure to provide access to ev idence for post

- conviction DNA testi ng is an arb itrary, unconstitutiona l appl ication of Chapter 64 to all similarly situated appellants and a clear violation of their due process rights

. ” A ppell ant maintains that th e require ment that “identity being an is sue ” s hould be limited to “stranger

victim misid entificatio n cases.” Thus, a ccording to appe llant , the DNA testing statute is unconstitutional as applied to him because h is case did not involve “ stranger

- victim
mis i d entifi cation ” since the chi ld victim wa s acqu ainted with him.

Appellant ’s due proce ss claim appears to raise an “as applied” con stitutional challenge to the DNA testing statute

. H owever, a ppellant presents this due process challe nge for14

the first time o n appeal . H e did not present a due p rocess claim in his motion for DNA t esting or

ot herwise present the cla im 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 r e quirement of making specific request, objec tion, or motion to preserve co mplaint for appellate review) ; Reyn olds v . St ate , 4 23 S.W.3d 377, 383 (Tex. Crim. App. 2014) ( stating that “ ‘ [a] s applied ’ constitutional claims are subject to the preservation requi r ement and therefore must be objected
to at the trial court in order to pr eserve error ”) ; see also Curry v. State , 186 S.W.3 d 39, 42 ( Tex.
A pp.

— Houston [1st Dist.] 2005, no pet.) (concluding that due process challenge to article
64.0 3(a) , which was not ass e rt ed at trial

- court level, was waived and explaining that “[c]onstitutio nal rights, including the rights of due process and due c ourse of l aw, may be waived if the proper request, objection, or motion is not asserted in the trial co urt”).

Even assuming t hat app ellant’s due process claim has been preserved , “[t] here is
no fre e
- standing d ue
- process right to DNA testing, and th e task of fashio ning rules to ‘harness
DNA ’ s power to prove innocence without unnecessarily overthrowing the established system of

c r iminal justice’ belongs ‘primari ly to the legislatur e.’” Gutierrez , 337 S.W.3d at 8 88 ( quoting
Osborne , 557 U.S. at 62) ; see Ex parte Mine s , 26 S.W.3d 910, 914 (Tex. Crim. App. 2000) (stating that there is no constitutional right t o post conviction DNA te s ting)

. Concerning procedural due process in the con text o f postc on victi on r elief , t he United States Supreme Court has explained:

A cr iminal defendan t proved guilty afte r 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 gov ernmen t prove its ca se beyond re asonable doubt. B ut o nce a defendant has bee n afforded a fa ir trial and convict ed of the offense for which he was charged, the presumption o f innocence disappears. Given a valid15

conviction, the criminal defendant has been consti tutionally dep rived of his liberty. The State accordingly has more fle xibility in dec iding what procedure s are needed in th e context of postconviction relief. W hen a State chooses to offer help to those seeking relief from convictions, due process does n ot dictat e the exact form such assistance must assume. [ A convicted pe rson ’s] right t o due process is not parallel to a trial right, but rather must be analyzed in l ight of the fact that he has already been found guilty at a fair trial , and has only a lim ited interest in postconvi ction relief.

. . . Instead, the question i s whether consi deration of [a conv i c ted person ’s ] claim within the framework of the State ’ s pr ocedures for postconvict i on relief offends some principle of justice so rooted in the tradi tions and cons cience of ou r people as to be ranked as fundamental, or t ransgresses any recognized principl e of fundamental fairness in operation. Federal courts may upset a St ate ’ s postcon v iction relief procedures only if they are fundamentally inad equate to vindicate the substant ive rights provided.

Osborne , 557 U.S. at 68

– 69 ( internal q uotation marks , alte rations , and citations omitted)

.

A s discussed in the prev ious point of error, the r ecord demonstrates that , given the
deficiencies in appellan t’s mo tion and his a ccompanying un sworn declaration, the trial court correctl y determined that several requirements es tablished by the L egislature for post conviction
DNA t esting in Chapter 64 were not m et in this case

. T h e trial court did not co nclude

— and
neith er do we

— that the stat utor y requirement that identi t y be an issue in th e case was not establish ed here. T h us, e ven if the statute ’ s re quirement that identi t y be an issue somehow
violates du e pro cess

— and we do not conclude that such a requirement is “ funda mentally unfai r ”

or “ trans gresses any recognized pri nci ple fundamental fairness in operation , ” see id. at 59

— w e

can perceive no due process violation fro m the trial court ’ s ruling here since it was not b ased o n the “ identit y as an issu e ” requirement

. See Prible v. State , 245 S.W .3d 466, 470 (Tex. Crim. App. 2008) ( sta ting that “ [ t ] here is nothing unreasonable or unjus t with the way Chapter 64 deals with requests for DNA testing ” in rejecting clai m that C hapter 64 requiremen t that case raise16

issue of identity violates due pro cess rights because it prevents introduc t ion of evidence that
someone else committed crime ) ; see also Cravin v. State , 95 S.W.3d 506, 511 (Tex. Ap p.

— Houston [1st Dist.] 20 0 2, pet. ref’ d) (ho lding that “ th ere is no thi ng fundamentall y unfair about the procedures set out in chapter 64 and followed by the convict ing court ” and that “ the [ C hapter 64] proc edures do not violate appellant ’ s due process righ ts ” ) ; Christ v. State , No

. 14

- 08

- 00902

- CR , 2009 WL 522788 4 , at *3 (Tex

. App.

— Houston [14th Dist.] Sept. 1, 2009, pet. ref’d) (mem. op., not designated for publication) ( “ T here is nothin g fundamentally inade quate about article 64.03 ’ s procedure for post

- con viction DNA testing and w e should defer to the legislature ’ s determinations. ” ) ; c

f. Bell , 90 S .W.3d a t 305

– 06 ( re jecting challenge that denial of request for DNA testing v iolated due process rights).

W e o verru le appellant’s second point of error. 11

CONC LUSION Applying the appro p riate standard of review, we conclude that the tri al court ’ s denial of a pp e llant ’ s mot ion for postconviction DNA testing is supported by the reco rd and,
therefore , was not an abu se its discretion. Further, we fail to perceive a ny due process violation

11 Within his complaint that the trial court ’ s appli cation of t he statute violat ed his right t o due process, appellant seems to suggest a violat ion of article 38.43 of the C ode of Criminal Pro cedure, which governs the retention of evid ence c ontaining biological material. However, such a complaint arguably falls outsi de the purview of the Chapter 6 4 articles and thus falls outside our appellate ju risdiction und er Chapter 64

. See Weems v. Sta te , 550 S.W.3d 776, 781 (Tex. App.

— Houston [1 4th Di st.] 2018, no pet.); In re Garcia , 363 S.W.3d 819, 822 (Tex. App.

— A ustin 2012, no pet.); Reger v. State , 222 S.W.3d 510, 513 (Tex. App.

— Fort Worth 2007, pet. r ef’d) ; see als o Tex. Code Cri m . Proc. art. 64. 05 (authorizin g appeal “under this chapter”). Mo re over, appellant failed to assert any violation of the statute in th e trial cou rt

. T herefore, to the extent t hat appellant attempts to raise such a complain t h ere, he failed to preserve it for appellate revie w. See Tex . R. App. P. 33.1(a)(1)(A)

.17

in the trial court ’ s denia l of DNA testing by adh ering to the statutory requi r ements

. Ac cordingly ,

w e affirm t he trial court ’ s order denying appell ant’s motion seeking postconvicti on DNA testing.

_______________________________ ___________ Edward Smith , Jus tice
Before C hi ef Justice Byrne , Just ices Triana and Smith
Affirmed
Fi le d: April 8, 2021
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