AFFIRM; Opinion Filed July 13, 2021 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00709-CR WENDELL LAMONT PE RVIS, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F94-41885-T MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Schenck Wendell Lamont Pervis, appearing pro se, appeals the trial judge’s order denying his motion for post-conviction DNA tes ting. In two issues, appellant urges the trial court erred by denying his reques t for appointed counsel and his pro se motion for post-conviction DNA testing. We affirm. Because a ll issues are settled in law, we issue this memorandum opinion. T EX

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. P. 47.4.
B ACKGROUND In March 1994, Michael McManemin had b een married to his wife for more than five years. They had two young sons, aged three and four. Around seven o’clock on a Monday evening after both parents had been working long hours,–2– McManemin drove home where his wife and children were sitting down to dinner. After he parked in the driveway and got out of his car, he was approached by a stranger, shot, and died within minutes. McManemin’s wife heard his car’s e ngine, the gunshot, and a vocal sound coming from him, and ran out to see the mu rderer running from her driveway to the front of the house. When she screamed, the murderer froze and looked her in the face before running away. She describe d the murderer as “a young black man with a white baseball cap on.” In May 1994, appellant was charged by indictme nt with knowingly and intentionally causing the death of the comp lainant while in the course of committing and attempting to commit the offense of ro bbery of the complainant. Appellant pleaded not guilty, and his case proceed ed to trial before a jury. The State presented testimony from, among others, McManemin’s widow, the police detectives who investigated McMa nemin’s murder, and Eddie Stevenson, appellant’s accomplice. One police det ective testified the police had received information that appellant and a Roma nian man named Eddie Stevenson were involved in some robberies and that they had been involved in McManemin’s death. McManemin’s widow testified her husband ow ned a stainless steel Rolex watch that he had had for ten years and that he wore the watch on the day he was killed but was not wearing it after he was shot. Stev enson, who was also charged with McManemin’s murder, testified he and a ppellant were looking to rob someone the–3– day of McManemin’s death. They were focused on stealing a Rolex to sell. According to Stevenson, he and appella nt followed McManemin’s car home where appellant robbed McManemin at gunpoint outsi de of Stevenson’s view. Stevenson also reported appellant was wearing a white ca p that evening and that later that night after Stevenson paid him for the watc h, appellant indicated he had killed McManemin during the robbery. When St evenson was arrested, law enforcement seized a white baseball cap in his possession. Additiona lly, law enforcement found a different white baseball cap in the car Stevenson drove th at night but had later sold to a third party. The defense presented testimony from a ppellant, his girlfriend, his brother, and other persons who knew a ppellant to establish he wa s with witnesses during the approximate time of the murder and to contradict the testimony of the State’s witnesses, particularly Stevenson, that appellant had been involved in the robbery and murder and disposal of the watch a nd gun. The defense also presented the testimony of a person associated with Stevenson to establish other men fitting appellant’s description, particularly young, black men, participated in robberies with Stevenson. The defense also presented testimony that appellant did not own any hats, although a picture of appellant admitted as a de fense exhibit showed him wearing one. The jury found appellant guilty of capital murder, and the tria l court sentenced appellant to life imprisonment.–4– After an unsuccessful appeal and se veral denied and dismissed habeas applications, on April 30, 2019, appellant filed a motion for post-conviction DNA testing in the trial court. That same day, appellant filed a motion for appointment of counsel to assist him in preparing his motion for post-conviction DNA testing. The trial court denied both motions, and this appeal followed.
D ISCUSSION Texas Code of Criminal Procedure Chap ter 64 defines the procedures for a convicted person to obtain post-conviction DNA testing. T EX

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. P ROC

. art. 64.01–.05. When reviewing a judge’s ruling on a Chapter 64 motion, we give almost total deference to the judge’s resoluti on of historical fact issues supported by the record and applications-of-law-to-fact issues turning on witness credibility and demeanor. Reed v. State , 541 S.W.3d 759, 768 (Tex. Cr im. App. 2017). But we review de novo all other application-of-law-to-fact questions. Id. at 768–69. Chapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing wh en requested by a convicted person if it makes several findings, including “the convicted person has established by a preponderance of the evidence that the pe rson would not have been convicted if exculpatory results had been obt ained through DNA testing.” See Ex parte
Gutierrez , 337 S.W.3d 883, 889 (T ex. Crim. App. 2011). 1

1 As noted by the court of criminal appeals, the tr ial judge is required to order DNA testing only if it makes all of the following findings:–5– Article 64.01(c) establishes when a c onvicted person is entitled to appointed counsel when intending to file a moti on for post-conviction DNA testing. C RIM

. P ROC . art. 64.01(c). The entitle ment to appointed counsel is not absolute; it is conditioned on three criteria, including that “reasonable grounds” exist for the filing of a motion. See Gutierrez v. State , 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (remaining criteria are that convicted person inform trial judge that he or she wants to submit motion and that trial judge find that convicted person is indigent). The statute does not define “reasonable grounds,” but the court of criminal appeals has held: “Reasonable grounds are present when the facts stated in the request for

(1) evidence exists that by its nature permits DNA testing; (2) the evidence was either: (a) justifiably not previously subjected to DNA testing [because DNA testing i) was not available, or ii) was incapable of providing probative results, or iii) did not occur “through no fault of the convicted pe rson, for reasons that are of such a nature that the interests of justice require DNA testing”]; or (b) subjected to previous DNA testing by techniques now superseded by more accurate techniques; (3) that evidence is in a condition making DNA testing possible; (4) the chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; (5) identity was or is an issue in the underlying criminal case; (6) the convicted person has established by a pr eponderance of the evidence that the person would not have been convicted if exculpat ory results had been obtained through DNA testing; and (7) the convicted person has established by a prep onderance of the evid ence that the request for DNA testing is not made to unreasonabl y delay the execution of sentence or administration of justice. See Ex Parte Gutierrez , 337 S.W.3d at 889.–6– counsel or otherwise known to the convicting court reasona bly suggest that a ‘valid’ or ‘viable’ argument for testing can be made.” See Ex Parte Gutierrez , 337 S.W.3d at 891. Or, in other words, before appoin ting an attorney, the trial judge must have “reasonable grounds” to believe that (1) a favorab le forensic test is a viable, fair and rational possibility, and (2) such a test co uld plausibly show that the inmate would not have been convicted. See id. at 892. Alternatively, th e trial judge could simply assume the result of any proposed DNA tes ting is “exculpatory” and, if that finding would not change the probabi lity the defendant would still have been convicted, then there are no reasonable grounds to appoint an attorney and no justification for ordering any testing. See id. In his first issue, appellant argues th e trial court erred by denying his request for appointment of counsel, arguing appoint ment of counsel was mandatory because he is indigent and expressed a desire to fi le a motion for forensic DNA testing. The State responds appellant failed to disclose what the grounds for his DNA testing would be and that no reasonable grounds ex ist in this case. In his second issue, appellant argues the trial court abused its discretion by denying his motion for postconviction DNA testing. The State re sponds appellant faile d to show that exculpatory DNA results from testing either of two white baseball ca ps seized in this case would change the probability that a ppellant would have been convicted. Here, appellant proposed testing a white baseball cap that “was seized in relationship to eyewitness testimony that [appellant] was wearing such a cap [when–7– he shot the complainant] and because Stev enson was allegedly part of the criminal episode in question here and that cap was in his possession. ” In his motion, appellant reasoned that DNA testing would exclude him as having been the person wearing the hat. No white baseball cap was admitted as an exhibi t at the underlying trial at which appellant was convicted . Moreover, there was tes timony that two white caps were seized, one in the possession of St evenson and the other seized when law enforcement located the car St evenson used in the offense and had sold to a third party. Aside from any testimony related to whit e baseball caps, the jury heard the testimony of the complainant’s widow who heard her husband shot in the driveway outside their home and saw a man who matched appellant’s description running away from her husband’s body. The jury also heard Stevenson testify he and appellant targeted McManemin to steal his watch and that they followed McManemin’s car home where appellant got ou t of the convertible with Stevenson’s gun and ran to the alley behind the houses. Stevenson parked his convertible and soon heard a gunshot and a woman scream befo re he began to driv e off. Appellant dove into the back of Stevenson’s conver tible and told Stevenson he had shot McManemin in the leg after a scuffle over appellant’s gun. Stevenson also reported that later that night after he paid appellant for the watch, appellant came to Stevenson’s house to demand more mone y, saying, “Man, I killed somebody for you, and you won’t give me no money?” The jury heard testimony corroborating–8– Stevenson’s version of events, including that Stevenson told a witness that appellant had used Stevenson’s gun in a robbery and ha d shot the victim. According to that witness, he and Stevenson also thre w a Rolex matching the description of McManemin’s into a lake and Stevenson indi cated someone had died for the watch. That witness then took back the gun and later sold it to a gun dealer and later recovered the watch from the lake and sold it. The police recovered that gun and confirmed through forensic testing that it was the same gun that had fired a shell casing recovered at McMa nemin’s driveway. The State also presented testimony from witnesses who also had been robbed of their Rolex watches. Their testimon y matched that of Stevenson who related appellant had also participated in those robberies. The State presented witnesses who had been in jail with appellant that related appellant confessed to shooting a man in the course of robbing that man of his watch and th at appellant had indicated he had killed a man. The State also presented evidence to confirm Stevenson’s account of a Rolex robbery similar to the offense that appellant took part in, i.e. testimony from the victim as to the details of the robbery and forensic evidence matching appellant’s handpr int to one recovered fro m the victim’s car. Based on the foregoing evidence presented to the jury at appellant’s trial, it is clear that even should DNA testing rev eal that another person’s DNA other than appellant’s was on either white baseball cap seized by the State, or that his DNA was absent from either or both caps, such a result would not change the probability of–9– appellant’s conviction. See Ex Parte Gutierrez , 337 S.W.3d at 891–92. Accordingly, we cannot conclude the tr ial court erred in denying his motion for appointed counsel or his motion fo r post-conviction DNA testing. We overrule appellant’s issues.
C ONCLUSION We affirm the trial judge’s order denying appellant’s motion for postconviction DNA testing.

D O N OT P UBLISH Tex. R. App. P. 47 200709F.U05 /David J. Schenck / DAVID J. SCHENCK JUSTICE–10– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WENDELL LAMONT PERVIS, Appellant

No. 05-20-00709-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 283rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F94-41885-T. Opinion delivered by Justice Schenck. Justices Reichek and Carlyle participating. Based on the Court’s opinion of this date, the order denying appellant’s motion for post-conviction DNA testing is AFFIRMED

. Judgment entered this 13th day of July, 2021.