Opinion issued July 25, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-17-00858-CR

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KEVIN CASTRO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1318800

MEMORANDUM OPINION

Kevin Castro moved for post-conviction DNA testing under Chapter 64 of 

Code of Criminal Procedure. The trial court denied his motion. We affirm.
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BACKGROUND

Castro’s Trial and Conviction

A jury found Castro guilty of the first-degree felony offense of aggravated 

robbery with a weapon, a handgun, and this court affirmed his conviction. See Castro 

v. State, No. 01-12-00396-CR, 2013 WL 655208, at *1 (Tex. App.—Houston [1st 

Dist.] Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication).

At trial, the complainant, Carlos Ayala, testified that Castro put a handgun to

Ayala’s stomach and said “I’m going to rob you.” See id. Ayala threw his wallet, 

after which a second man accompanying Castro instructed Castro to shoot Ayala. Id.

Ayala fled to his apartment, where he telephoned the police. Id. Castro and the other 

man then drove away in a maroon vehicle. Id. at *1 & n.3.

The police found Castro and the other man at a nearby convenience store and 

pulled them over as they left. Id. Castro was driving a maroon vehicle. Id. When the 

police searched this vehicle, an officer found a loaded handgun, Ayala’s tax 

identification card, and a wallet matching Ayala’s description of his wallet. Id.

When he took the stand, Ayala identified Castro as the man who robbed him.

Id. at *2. Defense counsel did not object to Ayala’s identification testimony. Id.

Castro’s Post-Conviction Motions

Castro sought and obtained post-conviction DNA testing under Chapter 64. 

The trial court signed an agreed order providing for a DNA comparison of a blood 
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and saliva sample taken from Castro and biological evidence taken from the wallet, 

tax identification card, handgun, and a hat that Castro allegedly wore during the 

robbery. The testing yielded these results:

● the wallet had DNA from two people, neither of whom was Castro;

● the tax identification card had no discernable DNA on it;

● the handgun did not have any interpretable DNA on it; and

● the hat had DNA from two people and Castro could not be excluded.

Castro later moved for further DNA testing. He requested that the trial court 

order Ayala to submit a DNA sample for comparison with the DNA obtained from 

the wallet. The trial court denied the motion on the ground that Castro had not shown 

a reasonable probability that he would not have been prosecuted or convicted if he 

had had access to the requested DNA testing at or before trial.

Castro appeals from the order denying his motion for further DNA testing.

DISCUSSION

Castro argues that the trial court erred in not ordering Ayala, the complainant, 

to provide a DNA sample for comparison with the biological material on the wallet. 

Castro posits that if testing reveals that Ayala’s DNA is not on the wallet, this would

show that it did not belong to Ayala and thereby prove that Castro did not rob him.
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Standard of Review

A bifurcated standard of review applies to a trial court’s denial of a motion 

for post-conviction DNA testing under Chapter 64 of the Code of Criminal 

Procedure. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). We almost 

totally defer to its resolution of historical fact issues supported by the record and 

application-of-law-to-fact issues that turn on witness credibility and demeanor. Id.

We review de novo all other application-of-law-to-fact questions. Id. at 768–69.

Applicable Law

There is no constitutional right to post-conviction testing to ascertain the 

presence of another person’s DNA. See Prible v. State, 245 S.W.3d 466, 469 (Tex. 

Crim. App. 2008). Instead, the right to post-conviction DNA testing is defined by 

statute, specifically Chapter 64 of the Code of Criminal Procedure. See id. at 469–

70; Swearingen v. State, 189 S.W.3d 779, 780 (Tex. Crim. App. 2006).

A convicted person may move in the convicting court for DNA testing of 

“evidence that has a reasonable likelihood of containing biological material” under 

certain circumstances. See TEX. CODE CRIM. PROC. art. 64.01(a-1), (b). Biological 

material “means an item that is in possession of the state and that contains blood, 

semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or 

other identifiable biological evidence that may be suitable for forensic DNA testing.” 

TEX. CODE CRIM. PROC. art. 64.01(a)(1). The movant may seek testing only of 
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evidence “that was secured in relation to the offense that is the basis of the 

challenged conviction and was in the possession of the state during the trial of the 

offense.” TEX. CODE CRIM. PROC. art. 64.01(b).

In general, the convicting court may grant a motion for DNA testing 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;

(B) there is a reasonable likelihood that the evidence contains 

biological material suitable for DNA testing; and

(C) 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. PROC. art. 64.03(a)(1), (2).

Thus, to obtain DNA testing under Chapter 64, a convicted person must prove 

by a preponderance of the evidence—a greater than 50% likelihood—that the jury 

would not have found him guilty if his proposed testing’s exculpatory results had 

been available at trial. Reed, 541 S.W.3d at 774. In our review, we ordinarily assume, 
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without deciding, that the test results would be exculpatory. See id. Exculpatory 

“means only results excluding the convicted person as the donor” of any DNA. Id.

Accordingly, the convicted person must show that, more likely than not, the jury 

would not have found him guilty if it had been able to weigh evidence that he did 

not deposit DNA on the tested evidence against the balance of the evidence presented 

during trial. Holberg v. State, 425 S.W.3d 282, 287 (Tex. Crim. App. 2014). This 

requirement is not satisfied if the DNA test results would “merely muddy the 

waters.” LaRue v. State, 518 S.W.3d 439, 446 (Tex. Crim. App. 2017).

Analysis

Castro’s motion is fatally defective for two reasons. First, he requests that the 

trial court order new evidence to be collected, specifically a specimen from Ayala. 

On its face, Chapter 64 provides solely for the testing of evidence that previously 

was secured by the state and was in the state’s possession at trial. TEX. CODE CRIM.

PROC. art. 64.01(b). As a matter of law, Castro cannot compel Ayala to submit a 

DNA sample for comparison post-conviction. See id.; see, e.g., Yarbrough v. State, 

258 S.W.3d 205, 209 (Tex. App.—Waco 2008, no pet.) (convict could neither

compel state to exhume victim’s body to gather additional evidence nor compel 

blood draw from co-defendant).

Second, the DNA testing that Castro seeks must be exculpatory in the sense 

that its results could exclude him as a donor. See Reed, 541 S.W.3d at 774. The 
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testing that he seeks, however, is a comparison between Ayala’s DNA and the DNA 

on the wallet. The wallet previously was tested at Castro’s request. The results 

showed the DNA of two persons, neither of whom was Castro. So he already has 

been excluded as a donor and, even if he had not, establishing that Ayala was or was 

not one of two donors could not exclude Castro. As a matter of law, Castro is not 

entitled to the testing he requests because it could not exculpate him. See id.; LaRue, 

518 S.W.3d at 446.

We hold that the trial court did not err in denying Castro’s motion.

CONCLUSION

We affirm the trial court’s order denying Castro’s motion for post-conviction 

DNA testing.

Gordon Goodman

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).