## NO. 12

- 1 2

- 00 382

- C R

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALEX DALTON INGRAM , § APPEAL FROM THE 7 TH APPELLANT

V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION Alex Dalton Ingram appeals from the trial court‟s order denying his motion for DNA testing. Appellant raises three issues on appeal. We affirm.

B ACKGROUND Appellant was charged with murdering his daughter, Natalie Sh eri Ingram. He pleaded
nolo contendere and stipulated that on or about May 6 , 1989, he intentionally and knowingly caused the death of Natalie by striking her head. Appellant was found guilty of his daughter‟s murder and sentenced to imprisonment for lif e. Once in prison, Appellant began to doubt his guilt. He filed an appeal , and t his court affirmed the trial court‟s judgment. 1 According to Appellant, h e also filed two habeas corpus applications, but b oth were denied.

1 See generally Ingram v. State , No. 12

- 90

- 00343

- CR (Tex. App.

– Tyler Jan. 31, 1992, no writ) (not designated for publication).2

He then filed a motion for DNA testing. 2 In his motion, he sought authorization , not for testing his own DNA but for testing as to the cause of death of his daughter. He believed that testing would demonstrate that sudden infant death syndrome contributed to or “may have actually

caus ed” the death of his daughter. On October 15, 2012, without appointing counsel for Appellant or conducting a hearing, the trial court denied Appellant‟s motion. On November 7, 2012, Appellant timely filed a notice of appeal in this court. The clerk of t his court forwarded Appellant‟s notice of appeal to the trial court. See T EX

. R. A PP

. P. 25.2(c)(1).

DNA T ESTING In his first issue, Appellant argues that the trial court abused its discretion when it denied his motion for DNA testing. In his second issue, he contends that the trial court erred by failing to appoint counsel for him

. And i n his third issue, he argues that the trial court erred b y failing to conduct a hearing on his motion. Standard of Review and Applicable Law In reviewing a trial court‟s denial of a motion for DNA testing, we utilize a bifurcated
standard of review. See Whitaker v. State , 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We usually give “almost total deference” to the trial court‟s findings of historical fact and application of law to fact issues that turn on witness credibility and demeanor, but consider de novo all other applica tion of law to fact questions. Ex p arte Gutierrez , 337 S.W.3d 883, 890 (Tex. Crim. App. 2011).
A convicted person may move for DNA testing of evidence containing biological material that was in the State‟s possession during trial (1) if that evidence was not previously subjected to DNA testing or (2) if it was previously tested
, but can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results which are more accurate and probative than the results of the previou s test. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.01(b) (West Supp. 2012). To be entitled to the testing, the convicted person must also show that (1) the ev idence is available for testing, (2) it has been subjected to a sufficient chain of custody to establish that it has not been altered in any material way, (3) identity was or is an issue in the case, and that (4) by a preponderance of the evidence
, he would not have been convicted if exculpatory results had been

2 T EX

. C ODE C RIM

. P ROC

. A NN

. arts. 64.01

- .05 (West 2007 & West Supp. 2012).3

obtained through DNA testing
, and the request is not made to unreasonably delay the execution of sentence or administration of justice. See i d

. art. 64.03(a) (West Supp. 2012). A convicted person who pleaded guilty or nolo contendere or made a confession or similar admission in the case may submit a motion for DNA testing, and the trial court may not deny the motion solely on the basis of that plea, confession, or admission. Id

. art. 64.03(b) (West Supp. 2012). “The identity requirement in Chapter 64 relates to the issue of identity as it pertains to the
DNA evidence.” Prible v. State , 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). To be entitled to the testing, the convicted person must demonstrate that the DNA testing would determine th e identity of the perpetrator or would exculpate the accused. Id

. An indigent convicted person filing a motion for DNA testing has a limited right to appointed counsel conditioned
, in part, on the trial court ‟s finding that reasonable grounds exist for
the motion

. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.01(c) (West Supp. 2012)

. “Reasonable grounds are present when the facts stated in the request for counsel or otherwise known to the convicting court reasonably sugg est that a „valid‟ or „viable‟ argument for testing can be made.” Ex parte Gutierrez , 337 S.W.3d at 891. A trial court is not required to conduct a hearing on a convicted person‟s motion for DNA testing. Whitaker , 160 S.W.3d at 8. Application App ellant misunderstands the nature of DNA testing. In DNA testing, biological material is tested to determine the identity of the donor. In his motion for DNA testing, Appellant acknowledges that only he and his daughter were in the room when she died. In stead of using DNA testing to determine identity of either the perpetrator or of someone who would exculpate him, Appellant seeks to prove that his daughter‟s death was caused by sudden infant death syndrome rather than by his striking her head. DNA testi ng establishes identity. See T EX

. C ODE

. C RIM

. P ROC

. A NN

. art. 64.03(a)(1)(B) (West Supp. 2012). It does not establish cause of death.
See id

. Thus, Appellant‟s motion for DNA testing is deficient in that it failed to establish that identity was or is at issue. See Prible , 245 S.W.3d at 470. For the same reason, he failed to establish reasonable grounds for the motion, and therefore was not entitled to appointed counsel

. See Ex p arte Gutierrez , 337 S.W.3d at 891. Finally, he was not entitled to a hearing on his
motion. See Whitaker , 160 S.W.3d at 8. We overrule Ingram‟s first, second, and third issues.4 D ISPOSITION Having overruled Ingram‟s first, second, a nd third issues, we affirm the judgment of the
trial court.



### B RIAN 

### H OYLE Justice

Opinion delivered June 25 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)5 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 25 , 2013

NO. 12

- 12

- 00382

- CR

ALEX DALTON INGRAM ,

Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 7

- 89

- 284 )

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED a nd DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court below
for observance. Brian Hoyle , Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.