### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00127- CR

In re Johnn y Ray Valchar

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 95- 522- K2 77, H ONO RAB LE JACK R. M ILLER, JUDGE P RESIDING

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

I n 2 0 0 6 , J ohnny Ray Valcha r pleade d g uilty to sexual assault (enha nced by
two previous felony convictions), was adjudg ed guilty , and wa s s en tence d to twenty -five y ear s in prison as called for in a plea barg ain. He now appea ls the district court’s order denying his motion for fore nsic DNA testing pursuant to code of criminal proce dure chapte r 64. See Tex. Code Crim. Proc. Ann. a

rt. 64.01-.05 (West 2006 & Supp. 2009). We affirm the or der. Valcha r’s pro se brief challeng es g ener ally the trial court’s order denying his reque st for testing

. The c ourt denied te sting ba sed on these f indings a nd conclusions: 1

The testing motion is not acc ompanied by an aff idavit containing statements of fac t in support of the motion. See id . art. 64.01(a ) (West Supp. 2009). The motion does not identify the item or items to be tested.

The testing motion wa s filed by appointed counsel, but V alcha r repr esents himself on appea l. 1Valcha r has failed to establish that DNA testing was not done previously throug h no fault of his own. See id . art. 64.01(b) (1)( B)

. Valcha r has failed to establish that identity was o r is an issue in the case . See id . art. 64.03(a )(1) (B ) (West Supp. 2009). Valcha r has failed to es t ab l ish that he would not have been convicted of the offe nse had exc u l p at ory results been obtained throug h DNA testing. See id . art. 64.03(a )(2) (A).

We defe r to the trial court’s fac t finding s and cre dibilit y deter minations, but we revie w leg al issues de novo. Rivera v . State , 89 S.W .3d 55, 59 (Tex. Crim. App. 2002).

Although the testing motion was not acc ompanied by a supporting aff idavi t , the motion its elf is verifie d by Valcha r’s unsworn decla

ration. And althoug h the motion does not specific ally identify the items to be tested, it does state that Valcha r’s attorney had revie wed the case file and spoken to the assistant district attorney who handled the case . The State’s response to the testing motion states that three items of clothing belong ing to the complai n ant wer e secur ed as evidenc e in the case and are in the prese nt custody of the sheriff : a bathing suit, a pair of shorts, and a T-shirt. I n 1995, befor e app el l an t ’s trial, a department of public safe ty criminalist found semen

on the bathing s uit and sh o rt s , b u t n o t o n the s hirt. I t is rea sonably clea r t hat t he bathing sui t and shorts are the items for which testing is soug ht. For the purpose of this opinion, we will assume that article 64.01(a) was satisfied.

Under chapte r 64, a defe ndant must have availed himself of whateve r DNA technolog y was available to him at the time of his trial. Routier v. State , 273 S.W .3d 241, 248 (Tex. Crim. App. 2008). I f DNA testing was not done at the time of trial, the def

endant must show that such testing wa s n o t available , was not capa ble of providing probative results, or was not done

2throug h no fault of the defe ndant for rea sons that are such that the interests of justice require DNA

testing. Tex. Code Crim. Proc. An n. art. 64.01(1)( A), (B ); see Skinner v. State , 293 S.W .3d 196, 200-02 (Te x . Crim. App. 2009).

Va l ch ar ’s testing motion states that “[Valcha r] plead g uilty due to fea r of harsh
sentenc e, not due to actua l g uilt. Additionally , [Valchar] was not awa re that any phy sical evidenc e

was available to test beca

use of the six month time lapse betwee n the date of the alleg ed offe nse and the date of [Valchar]’s arr est.” Valcha r arg ues that these statements are sufficie nt to satisfy the “no fault” require ment. But even if these statements are acc epted as true, they do not de monstrate that DNA testing was unavailable to Valcha r at the time of his trial. Valc h ar has not shown that the exis tence of the semen-sta ined clothing was withheld from the defe nse or was otherwise undiscovera

ble befor e he pleade d g uilty , nor has he alleg ed that his counsel a t the time he pleade d g uilty was ineffe ctive in failing to seek testing at that time. Thus, he has failed to show that DNA testing w as not done throug h no fault of his own. See Sk inner , 293 S.W .3d at 200-03. Be fore DNA testing may be order ed under chapte r 64, the trial court must find that i d en tity was or is an issue in the case , and the applicant must establish by a preponde ranc e of t h e evidenc e that he would not have been convicted i f exculpatory results had been obtained throug h DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a) (1)( B) , (2)( A). Reg ardle ss of the defe ndant’s plea and the streng th of t h e i d en tification evidenc e adduce d at the trial, the defe ndant can make identity an issue in the case by showing that DNA tests would prove his innocenc e. Esparza v. State , 282 S.W .3d 913, 922 (Tex. Crim. App. 2009); Blackloc k v. S tate , 235 S.W .3d 231, 233 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 64.03(b) (W est Supp. 2009). But if DNA test ing would not deter mine the identity of the person who committed the offe nse or

3would n o t ex culpate the person convicted, then these require ments are not met. Prible v. State ,

245 S.W .3d 466, 470 (Tex. Crim. App. 2008).

The testing motion states that the complainant in this cas e wa s an acqua intance of Valcha r. The motion continues, “This acqua intance claimed that she told [Valchar] that she ear lier had sexual intercour se with her boy friend, and [Valchar] alleg edly then had sexual intercour se with the acqua intance. The acqua intance later claimed that the sexual intercour se with [Valchar] was not

consensua l.” The motion g oes on to arg u e, as Va l ch ar now does in his brief, that “[i] f the complainant’s story was true, DNA testing should show [Valchar’ s] semen or epithelial cells, as well

as those of her then-b o y friend. I f the testing does not show [Valchar’ s] DNA, this direc tly
contra dicts the complainant’s story and establishes [Valchar’ s] innocenc e.” I n short, it is Valcha r’s contention that the absenc e of his DNA on the semen-sta ined clothing would prove that he was not the complainant’ s attacke r.

The rec ord is not sufficie nt to support this contention beca use the fac ts rela ted in the testi n g m o t ion, which are the only fac ts befor e us, do not ref lect that the complainant’s attacke r deposi t ed semen during the assault. Thus, the absence of Valcha r’s DNA would not demonstrate his innocenc e. This distinguishes t his case from Esparza and Smith v. Stat e , in both o f which the evidenc e showed that the attacke r ejac ulated. See Esparza , 282 S.W .3d at 921; Smith v. State , 165 S.W .3d 361, 364 (Tex. Crim. App. 2005). Simi larly , the prese nce of someone else’s DNA on the complainant’s clothing would not exculpate Valcha r beca use there is no fac tual b as i s for concluding that this semen was the attacke r’s and not the complainant’s boy friend’ s, with whom we

are told she had sexual intercourse prior to the attac k.

4Valcha r has not show n t h at DNA testing was not available at the time of his trial throug h no fault of his own. Fur ther, Valcha

r has not shown that identity is an issue in this case or, by a preponde ranc e of the evidenc e, that he would not have been convicted if exculpatory results had been obta ined by

DNA testing

. I n a supplemental brief, Valcha r claims that the attorney appointed to repr esent him in this chapter 64 pr ocee ding did not render effe ctive assist ance . This Court has held that there is

no Six th Am en d m en t ri g ht to eff ective assistance in a chapte r 64 proce eding

. In re Beasley , 107 S.W .3d 696, 697-98 (Tex

. App.—Austin 2003, no pet.); see also W inters v. Presiding Judge , 118 S.W .3d 773, 774 (Tex. Crim. App. 2003). I n any event, we do not ha

ve a rec ord befor e us on which to assess c ounsel’s per formanc e.

Finally , Valcha

r has filed what he sty les a “motion und e r n u nc pro tunc” asser

ting that his 2006 conviction must be reve rsed beca use he was not proper ly admonished at the time he pleade d g uilty

. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2009). This contention i s outside the scope of this appea l, which is limit ed to the trial court’s order denying Valcha r’s testing motion. For the re asons stated, the district c ourt’s orde r is aff irmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Apr il 29, 2010 Do Not Publish 5