Affirmed and Opinion Filed April 14, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas No. 05-14-01241-CR TERRY WAYNE LEE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 041709 

### MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Francis Terry Wayne Lee was convicted in 1994 of murder, and this Court affirmed his conviction on direct appeal. Lee v. State , No. 05-94-01163-CR, 1995 WL 689662 (Tex. App.

― Dallas Nov. 13, 1995, no pet.). In October 2013, appellant filed a motion for postconviction DNA testing which the tr ial court denied. In two issu es, appellant claims the trial court erred by denying his motion. We affirm. At some time during the evening and morning of April 29th and 30th of 1993, Walter Eugene (Gino) Henley was shot and killed. His body was found in or near Sadler, Grayson County, Texas. Several spent .22

− caliber casings were found n ear the body although no weapon was found or linked to the murder. At trial, Ti na Jones, the common-law wife of appellant’s brother, Shane Lee, told the jury she, Shane, a nd appellant drove in appellant’s car to meet Gino–2– who was parked in his car on a back country roa d. Tina saw appellant put his revolver in the waistband of his pants before exiting the car with Shane. Gino got out of his car, and the three men had a heated discussion. Tina saw appellan t’s hand come up from his side, and she heard two gunshots. She saw someone dr iving Gino’s car leave the scen e with its lights extinguished, and appellant got back in his car. He put the revolver, which sme lled of sulfur, on the front seat. Appellant told Tina he was going to pick up Shane. After driving around, they saw Shane running down the road; appellant picked him up, and they drove off. After hearing this testimony and considering all the evidence presen ted by the State, the ju ry convicted appellant and assessed punishment at life in prison. In two issues, appellant claims the tria l court erred by denyi ng his motion because appellant (1) showed a reasonable probability through the testimony of at least one juror that he would not have been convicted “h ad the testing of the items show n DNA attributable to someone other than Appellant,” and (2) affirmatively identif ied the items to be tested, showed such items were in a condition that allo wed DNA testing, and the same ite ms have been adequately safeguarded and subjected to a sufficient chain of custody. In response, the State filed a motion attaching affidavits from, among others, the district clerk and court reporter. Both the district clerk and the court reporter stated there was no evidence regarding this ca se in the possession of either the district clerk’s office or in the court reporter’s records. We review the trial court’s ruling on a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State , 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the trial court’s determination of issues of historical fact and issues of application of law to fact that tu rn on credibility and deme anor of witnesses. Id. We review de novo other issues of a pplication-of-law-to-fact questi ons that do not turn on the–3– credibility and demea nor of witnesses. Ex parte Gutierrez , 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). The convicting court may order post-convicti on DNA testing only if it finds the evidence still exists, is in a condition making DNA testing po ssible, and has been subjected to a chain of custody sufficient to establish it has not been subs tituted, tampered with, re placed, or altered in any material respect, and identity wa s or is an issue in the case. T EX . C ODE C RIM . P ROC . A NN . art. 64.03(a)(1)(A), (B) (West Supp. 2014); Leal v. State , 303 S.W.3d 292, 296 (Tex. Crim. App. 2009). In addition, the trial court may order the requested post-conviction DNA only if “the convicted person establishes by a preponderance of the evidence that . . . the person would not have been convicted if excu lpatory results had been obtai ned through DNA testing.” T EX . C ODE C RIM . P ROC . A NN . art. 64.03(a)(2)(A); Gutierrez , 337 S.W.3d at 889. In other words, “[u]nder Article 64.03, a convicted person is not entitled to DN A testing unless he first shows that there is ‘greater than a 50% chance that he would not have been convicted if DNA testing provided exculpatory results.’” Gutierrez , 337 S.W.3d at 899 (quoting Prible v. State , 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008)). Th e trial court may rule on a motion for DNA testing, “regardless of whether the attorney repr esenting the state submitted a response.” T EX . C ODE C RIM . P ROC . A NN . art. 64.02(b). In his motion, appellant sought testing of the victim’s shirt, the victim’s jeans, the victim’s shoes, and five cigare tte butts found in the vicinity of the victim’s body. In support of his claim that this evidence is appropriate for DNA testing, appellant relies on the affidavit of Lieutenant Ricky Wheeler of the Grayson Count y Sheriff’s Office. In Wheeler’s affidavit attached to appellant’s motion, the officer states the agency possesses an evidence box containing, among other things, three pairs of blue jeans, one pair of blue tennis shoes, and a bag with cigarette butts. Notably, the affidavit make s no mention of a shirt in the evidence box. To–4– the extent appellant requests testin g of the victim’s shirt, he has failed to establish that piece of evidence still exists. See T EX . C ODE C RIM . P ROC . A NN . art. 64.03(a)(1)(A)(i). With respect to the remaining items in appellant’s request, we first note we are not entirely clear which of the thr ee pairs of jeans contained in th e evidence box should be tested. See Dinkins v. State , 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). Although appellant’s motion seeks to test the victim’s jeans, it does not identify which of the jeans in the evidence box belonged to the victim. Nevertheless, nothing in Wheeler’s affidavit or in any of the other affidavits attached to appellant’s motion establ ishes the items listed in his motion have “been subjected to a chain of custody sufficient to establish [they have] not been substituted, tampered with, replaced, or altered in any material respect.” See T EX . C ODE C RIM . P ROC . A NN . art. 64.03(a)(1)(A)(ii). Because appellant has failed to provide facts regarding the chain of custody in support of his motion, we cannot conclude the trial court erred by denying his motion requesting forensic DNA testing of evidence in this case. We overrule his second issue. In light of our disposition of the second issue, we need not address his first issue. See T EX . R. A PP . P. 47.1. We affirm the trial court’s order.

Do Not Publish T EX . R. A PP . P. 47.2(b) 141241F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–5– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT TERRY WAYNE LEE, Appellant No. 05-14-01241-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 397th Judicial District Court, Grayson County, Texas Trial Court Cause No. 041709. Opinion delivered by Justice Francis, Justices Lang-Miers and Whitehill participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of April, 2015.