IN THE

TENTH COURT OF APPEALS

No. 10-11-00215-CR

DAVID JAMES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 12th District Court

Leon County, Texas

Trial Court No. 21,928

MEMORANDUM OPINION

David James was convicted for the offense of aggravated sexual assault in June 

2004 and punishment was assessed at 60 years confinement and a $10,000 fine. James 

appealed from that conviction, and the trial court’s judgment was affirmed. James filed 

a Petition for DNA Testing, and the trial court dismissed that petition. We affirm.

The motion for DNA testing must be accompanied by an affidavit, sworn to by 

the convicted person, containing statements of fact in support of the motion. TEX. CODE 
James v. State Page 2

CRIM. PRO. ANN. § 64.001 (a-1) (West Supp. 2013). A convicting court may order forensic 

DNA testing under Chapter 64 of the Texas Code of Criminal Procedure only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; 

and

(ii) 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 respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence 

that:

(A) the person would not have been convicted if exculpatory results had 

been obtained through DNA testing; and

(B) the request for the proposed DNA testing is not made to unreasonably 

delay the execution of sentence or administration of justice.

TEX. CODE CRIM. PRO. ANN. § 64.03 (a) (West Supp. 2013). In reviewing the trial judge's 

Chapter 64 rulings, this Court usually gives "almost total deference" to the trial judge's 

findings of historical fact and application-of-law-to-fact issues that turn on witness 

credibility and demeanor, but we consider de novo all other application-of-law-to-fact 

questions. Ex parte Guiterrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011).

In his first issue, James complains that the trial court erred in failing to appoint 

counsel to represent him during these proceedings. An indigent convicted person 

intending to file a motion for post-conviction DNA testing has a limited right to 
James v. State Page 3

appointed counsel. Ex parte Guiterrez, 337 S.W.3d at 889. The convicting court shall 

appoint counsel for the convicted person if the person informs the court that the person 

wishes to submit a motion under this chapter, the court finds reasonable grounds for a 

motion to be filed, and the court determines that the person is indigent. TEX. CODE 

CRIM. PRO. ANN. § 64.01 (c) (West Supp. 2013).

The trial court found that there were no reasonable grounds for James’s motion 

to be filed. Guiding principles in determining whether there are “reasonable grounds” 

include: that biological evidence exists, that evidence is in a condition that it can be 

tested, that the identity of the perpetrator is or was an issue, and that this is the type of 

case in which exculpatory DNA results would make a difference. Ex parte Guiterrez, 337 

S.W.3d at 891. Courts have found that reasonable grounds for testing are not present if 

no biological evidence exists or if it has been destroyed, or if identity was not or is not 

an issue. Id. Reasonable grounds are present when the facts stated in the request for 

counsel or otherwise known to the convicting court reasonably suggest that a "valid" or 

"viable" argument for testing can be made. Id.

The trial court’s order states that identity is not an issue in this case. The order 

notes that the opinion of the appellate court supports a finding that identity was not an 

issue. We do not find that the trial court erred by not appointing counsel for these 

proceedings. We overrule the first issue.

In the second issue, James argues that the trial court abused its discretion in 

denying the petition for DNA testing because there was exculpatory evidence. The trial 

court’s order states that James’s motion did not contain a sworn affidavit in support of 
James v. State Page 4

the motion or a statement of fact that he would not have been convicted if exculpatory 

results had been obtained through DNA testing. The trial court further found that 

identity was not an issue. After reviewing the record before us, we find that the trial 

court did not err in denying the motion for DNA testing. We overrule the second issue. 

James asserts three other issues alleging error in the underlying trial proceedings. 

The statute confers jurisdiction on this Court to review a trial court's order denying 

post-conviction DNA testing in any case in which the death penalty is not imposed. 

TEX. CODE CRIM. PRO. ANN. § 64.05 (West 2006). However, Chapter 64 is not an 

invitation to review every potential error in the underlying trial proceedings; it is 

simply a procedural vehicle for obtaining evidence "which might then be used in a state 

or federal habeas proceeding." In re Garcia, 363 S.W.3d 819, 822 (Tex. App.-Austin 2012, 

no pet.). Accordingly, Chapter 64 does not confer jurisdiction on an appellate court to 

consider "collateral attacks on the trial court's judgment or to review, under the guise of 

a DNA testing appeal, anything beyond the scope of those articles." Id. We lack 

jurisdiction to consider James’s remaining issues on appeal.

We affirm the trial court’s order dismissing James’s Petition for DNA testing.

AL SCOGGINS

Justice
James v. State Page 5

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed December 12, 2013

Do not publish 

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