COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ARMANDO MAD RI D, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00182- CR

Appea l from 109th District Court of Andre ws County , Texas (TC # 4715)

O P I N I O N Armando M ad ri d appeals an order deny ing his motion for fore nsic DNA testing. For the

rea sons that follow, we a ffirm. F ACTUAL SUMMA RY A jury found Appe l l an t gu i l t y of two counts of indece ncy with a child by sexual contac t, found both enhanc ement para g raphs true, and assessed his at imprisonment for twenty -five y ear s on

eac h count. We aff

irmed the conviction and the Court of Criminal Appeal s d enied Appellant’s petition for discretionar

y revie w. Armando Madrid v. State , No. 08 -0 7 -0 0 1 2 7-CR, 2008 WL 2967013 (Tex.App.--El Paso Jul y 31, 2008, pet. ref

’d). Appellant subsequently filed a motion for fore nsic DNA testing of panties and pants. T h e S t at e d i d not file a response . See T E X .C O D E C R I M .P R O C .AN N . art. 64.02 (V ernon Supp. 2009). The evidenc e admitted at trial showed that the complainant had not w ashed the clothes she had been wea

ring at the time of the sexual assault and a law enfor ceme n t o ff icer collecte d the clothing as evidenc e. Madrid , 2008 WL 2967013 at *1. The complainant’s panties, bra, and shirt, and blood samples from the complainant and Appellant wer e submitt ed to the D.E.A. Crime L ab inL ubbock for analy sis. Id. DNA analy sis of a semen stain on the crotc h of the complainant’s panties

reve aled, to a reasonable deg ree of scientific cer tainty , that Ap p el l an t was the s ource of t he DNA profile found in the sperm fra ction of the semen stain. Id. The complainant’s DNA was also found on the same staine d section of the unde rwe ar. Id. I n his motion, Appellant asser ted that the panties belong ed to the complainant’s mother, not the complainant. Appellant admitted having a rela tionshi p wi t h the mother and he claimed the complainant’s skin cells wer e place d on the panties when she handed them t o the deputy

. Consequently , he reque sted that the panties be re- tested ag ainst t h e m o t h er ’s DNA and also to deter mine if any body fluid from the complainant could be found. Appellant also c laimed that the

co m p lainant’s pants wer e not submitt ed for testing. Appellant rea soned that if his DNA was no t found on the pants, it would ref ute the complainant’s testimony that he forc ibly remove d the pants and prove he is innocent. At the hear ing, the trial co u rt t o o k j u dicial notice of all the testimony submitt ed during hear ings and the trial. The trial court denied the motion beca use Appellant had not met the re quirements of Chapte r 64 of the Code of Criminal Procedur e. This appe al follows.

DENIAL OF M OTION FOR DN A TEST ING Appellant prese nts two issues on appea l challeng ing the denial of his motion for fore nsic DNA testing. First, he arg ues the trial court err ed as a matter of law in finding that Appellant failed

to establish by a preponde ranc e of the evidenc e that he would not have been convicted if exculpatory results had been obtained throug h DNA testing. Second, he contends that the trial court err oneously focuse d only on whether the evidenc e was tested and ignor ed other fac tors under Article 64.01(b)( 1)(B ). Under Article 64.01, a convicted person may submit to the convicting court a m o t i on for fore nsic DNA testing of evidenc e containing biologica l materia l. T E X .C O D E C R I M .P R O C .AN N . art.64.01(a)

. The motion must be acc ompanied by an aff idavit, sworn to by the convicted person, containing statements of fa ct in support of the motion. T E X .C O D E C R I M .P R O C .AN N . art. 64.01(a )

. A convicting court may

order fore nsic DNA te sting unde r Chapter 64 only if: (1) the c ourt finds that: (A) the evidenc e: (i) still exis ts and is i n a condition making DNA testing possible; and (ii) has been subjected to a chain of custody sufficie nt to establish that it ha s not be en substitut ed, tampere d with, repla ced, or altere d in any materia l respe ct; and (B ) identity

was or is a

n issue in the case ; and (2) the c onvicted per son establishes by a pre pondera

nce of the evidenc e that: (A) the per son would not ha ve been convicted if exculpatory results had bee n obtained throug h DNA testing ; and (B ) the reque st for the proposed DNA testing is not made to unrea sonably delay the execution of s en tence or administration of justice. T E X .C O D E C R I M .P R O C .AN N . art. 64.03. Although the trial court did not specify the exact basis for its denial of the motion, the court could have found that Appe llant failed to prove by a pre pondera

nce of the evidenc e that he would

n o t h ave been convicted if exculpatory results had been obtained throug h DNA testing. T h e d ef en d an t i s n ot require d to prove actual innocence , but he mus t prove that, had the results of t h e DNA test been available at trial, there is a 51% chanc e that he would not have been convicted. See Smith v. State , 165 S.W .3d 361, 364 (Tex.Crim.App. 2005)(discussing amendment of Section 64.03(a) (2) and bill analy sis). The question befor e us is whether Appellant met this burden of proof. I n our revie w of this issue, we have considere d the repo rt er ’s re co rd filed in Armando Madrid v.State , No. 08-07-00127-CR and Armando Madrid v. State , No. 08-07-00128- CR because the t rial

court took judicial notice of all the testimony

admitted at the trial. The complainant identified the panties admitted into evidenc e at trial as the panties she had been wea ring at the time of the sexual assault. These panties wer e submitt ed for testing and a semen stain was found on the crotc h of the panties. The semen-sta ined section of the panties was remove d and analy zed for DNA. The DNA of both Appellant and the complainant wer e found on this portion of the panties. There is no evidenc e than an unknown specimen of DNA was found on this portion of t h e p an t i es . I f the mother’s epithelial cells or DNA are found on some other portion of the panties, it is re l evant to prove that she touched the panties at some point. I t does not, howeve r, neg ate or outweig h the testimonial and scientific evi d ence admitted at trial establishing that the DNA of both Appellant and the complainant wer e found on the semen-sta ined section of th e p anti es. L ikewise, if additional testing failed to find Appellant’s epithelial cells on some other portion of the panties or on the complainant’s pants, it does not outweig h the inculpa to r y evidenc e admitted at trial. Thus, Appellant did not prove by a prepo ndera nce of the evidenc e that he would not have been convicted if exculpatory results had been obta ined throug h DNA testing. We ove rrule I ssue One. Be cause the trial court could have proper ly denied Appellant’s motion for the rea sons just stated, we need not a ddress I ssue Two. We af firm the trial c ourt’s orde r deny ing D NA testing

. Aug ust 18, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)