NO. 07-10-00128-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 22, 2011

DAVID JONES, JR., APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 54TH DISTRICT CO URT OF MCLENNAN COUNTY; NO. 2003-964-C2; HONORABLE MATT JOHNSON, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION Appellant, David Jones, Jr., appeals from the trial court’s order denying his motion for post-conviction DNA testing. 1 He maintains that the trial court erred by basing its denial on erroneous conclusions. We will affirm. Factual and Procedural History In 2004, appellant was convicted of attempted burglary of a habitation 2 and sentenced to 70 years’ impr isonment. The State alleged, and the jury found, that

1 See T EX

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. A NN . arts. 64.01–.05 (West 2007 & Supp. 2010).2 appellant had used a knife in an attempt to gain entry to the house at 1104 Kellum Street in Waco, Texas. The Tenth Court of Appeals affirmed his conviction. See Jones v. State , 170 S.W.3d 772 (Tex.App.—Waco 2005, pet. ref’d) (mem. op.). In January 2010, Jones filed a motion for DNA testing, seeking testing of the knife alleged to have been used in connection with the offense. In his motion and in his brief to this Court, appellant maintains that he did not own the knife nor did he attempt to enter the dwelling located at 1104 Kellum. He admits to being at the scene at the time but explains that he was trying to get into the vacant house next door to sleep there. The trial court denied appellant’s motion. Appellant timely appealed the trial court’s order denying his motion and now brings to this Court two points of error, asserting that the trial court erroneously concluded that (1) identity was not an i ssue in the underlying case and (2) appellant failed to show that exculpatory results from DNA testing would have resulted in appellant not being convicted. We will affirm. Applicable Law and Standard of Review Motions for post-conviction DNA testing ar e subject to the requirements of the following provision, among others: (a) A convicting court may order for ensic DNA testing under this chapter only if: (1) the court finds that: (A) the evidence:

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. P ENAL C ODE A NN . §§ 15.01, 30.02 (West 2003).3 (i) still exists and is in a conditi on making DNA testing possible; and (ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, ta mpered 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 conv icted 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. T EX

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. A NN . art. 64.03(a)(1)–(2). When reviewing a trial court’s order on a defendant’s motion for DNA testing, we afford almost total deference to the trial court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credib ility and demeanor, while we review de novo other applicat ion-of-law-to-fact iss ues. Routier v. State , 273 S.W.3d 241, 246 (Tex.Crim.App. 2008); Rivera v. State , 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Under this standard, we defer to the trial court’s findings when reviewing appellant’s contentions, the credibility of ap pellant’s affidavit, and whether the claimed DNA evidence exists and is in a condition to be tested. See Rivera , 89 S.W.3d at 59; Yarbrough v. State , 258 S.W.3d 205, 208 (Tex.App.—W aco 2008, no pet.). Although we review subsidiary fact i ssues deferentially, we review de novo ultimate questions of law, such as whether a reas onable probability exists that exculpatory DNA results would prove innocence. See Rivera , 89 S.W.3d at 59; Cate v. State , 326 S.W.3d 388, 389 (Tex.App.—Amarillo 2010, no pet.).4 Analysis Identity as an issue
The trial court found that, at trial, thr ee witnesses positively id entified appellant as the person attempting to break into the re sidence at 1104 Kellum. The State cites to evidence that the witnesses knew appellant from prior business-related dealings. Further, the trial court found t hat appellant was arrested at the scene. Deferring to the trial court’s finding, it is appar ent that appellant was at the scene. He admits such in his motion and his brief. He denies, however , having used the knife to pry open the windows of the residence in question. In both his motion and brief, appellant maintains that he was only in the area to gain entry to the vacant house next door so that he could sleep there. He maintains that DNA testi ng would show that he never handled the knife in question and, therefore, did not use it to try to gain entry into the residence at 1104 Kellum, and he further asserts that the re sults of DNA testing would show that witnesses were lying about seeing him undertake such actions. That being the state of the contentions, t he trial court’s conclusion that identity was not and is not an issue in this case is well-founded. The issues appellant raises are not ones of identity. He does not point to evidence that, as he was attempting to break into the house at 1100 Kellum , another person was attempting to gain entry into the residence next door at 1104 Ke llum. He does not assert that witnesses mistakenly identified him as that person who was attempting to break into the residence at 1104 Kellum. That is, this is not a case of mi staken identity. As appe llant’s own account and representations suggest, this is a case of denying having done what witnesses say he5 did. The issues appellant hopes to reso lve through DNA testing are ones related to intent, conduct, and credibility of the witnesses. That identity could become an issue pending the results of the requested DNA testing is irrelevant. See Bell v. State , 90 S.W.3d 301, 308 (Tex.Crim.App. 2002). The issue of identity as it pertains to C hapter 64 is not raised solely by a plea of not guilty. Pr ible v. State , 245 S.W.3d 466, 470 (Tex.Crim.A pp. 2008). From the limited record before us, it appears ident ification of appellant was not controverted at trial. We add that it would appear that appellant did not challenge t he identity issue on direct appeal. See Jones , 170 S.W.3d at 774; see also Wilson v. State , 185 S.W.3d 481, 485 (Tex.Crim.App. 2006) (observing that, in number of proceedi ngs, appellant never challenged the issue of identit y). Appellant’s motion does not cite evidence that would suggest this was a case of misidentification; he merely asserts that he was trying to break into the residence next door and did not use the knif e to pry open the window on the residence at issue. By failing to show that identity was or is an issue in the underlying case, appellant has failed to satisfy this requirement. See T EX

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. A NN . art. 64.03 (a)(1)(B). The trial court di d not err by concluding that identity was and is not an issue in this case. Impact of Exculpatory Results Even if we were to accept appellant’s assertion that his denial of the actions raised the issue of identity, 3 he fails to satisfy another of ar ticle 64.03’s requirements. In

3 We are cognizant of the holdi ng outlined in Blacklock v. State , 235 S.W.3d 231, 233 (Tex.Crim.App. 2007), and reaffirmed, per haps modified, in Esparza v. State , 2826 his brief, appellant asserts that he “know[s] for a fact that he would not [have] been found guilty of” the offense if the knife had been subject to DNA testing. More specifically, appellant maintain s that DNA testing on the knif e would reveal that he did not use the knife to try to gain entry thr ough the window at 1104 Kell um. Testing would reveal that none of his DNA was on the knife, he asserts. Rather, the results of DNA testing would show someone else’s DNA and would prove that the other person was the true perpetrator of the crime. We disagree with appellant’s contentions. It was incumbent on appellant to show by a preponderance of the evidence that, if the results of the DNA te sting showed what he desired the testing show, he would not have been convicted of the offense alleged. See T EX

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. A NN . art. 64.03 (a)(2)(A); Sepeda v. State , 301 S.W.3d 372, 375–76 (Tex.App.—Amarillo 2009, pet. denied). This means that, under article 64. 03, “[t]he defendant must prove that, had the results of the DNA test been ava ilable at trial, there is a 51% chance that the defendant would not have been convicted.” Routier , 273 S.W.3d at 257 (quot ing Smith v. State , 165 S.W.3d 361, 364 (Tex.Crim.App. 2005)). For purposes of this inquiry, we assume, S.W.3d 913, 922 (Tex.Crim.App. 2009), that t he victim’s testimony that she knew appellant and identified him as her attacker was irrelevant to the inquiry whether appellant’s motion for DNA testing m ade identity an issue when “language and legislative history of Arti cle 64.03(a)(1)(B) make it very clear that a defendant, who requests DNA testing, can make identity an issue by showing that exculpatory DNA tests would prove his innocen ce.” Because Blacklock is factually di stinguishable from our case in that Blacklock involved testing of a DNA samp le known to be available and because we will conclude, inde pendent of any eye witness identificati on, that appellant also has failed to satisfy the “exculpatory re sults” requirement of article 64.03(a)(2)(A), we do not believe our conclusion conflicts with Blacklock ’s holding in this regard. However, if Blacklock does not merge the two inquirie s at issue here–identity as an issue and the impact of exculpatory result s–it, at least, points to a close relation between those two issues. Given Blacklock ’s treatment of thes e two issues, we will address both of appellant’s contentions.7 without deciding, that the results of all of the post-conviction DNA testing to which appellant is entitled would prov e favorable to him. Id. We must then determine whether there is a greater than 50% chance that the jury hearing the case would not have convicted him had it been aware of those pres umptively favorable test results. Id. The absence of appellant’s DNA on the knife or the pr esence of another person’s DNA on the knife is not affirmative ev idence of appellant’s innocence. See Prible , 245 S.W.3d at 470 (citing Bell , 90 S.W.3d at 306, for its obse rvation that mere presence of another person’s DNA at crime scene does not constitute affirmative evidence of defendant’s innocence). Even if DNA testing revealed that appellant’s DNA was not present on the knif e and that another person’s DNA was present, such results would fail to create a reasonable inference that anothe r person was there at the scene using the knife to try to gain entry to one residence as appellant tried to gain entry to the residence next door. See id. (concluding that, in light of other evidence, presence of third-party DNA would not establish by a preponderance of the evid ence that appellant would not have been conv icted). “[I]f DNA te sting would not determi ne the identity of the person who committed the offense or w ould not exculpate t he accused, then the requirement of Article 64.03(a )(2)(A) has not been met.” Id.
The trial court concluded that, if DNA from another person were found on the knife, “such would not prove that [appellant] di d not use the same to try to burglarize the house or exonerate him in any way.” Assumi ng that DNA testing would yield the results proposed by appellant, those resu lts would, at most, “merely muddy the waters,” and, generally, such a showing is insufficient. See Rivera , 89 S.W.3d at 59; Yarbrough , 2588 S.W.3d at 210. So, the trial c ourt did not err by concluding that appellant failed to show by a preponderance of the evidence that excu lpatory results would have meant that the jury would not have convicted him. Because appellant has failed to satisf y the requirements of article 64.03 that would entitle him to DNA testing of the knife, we overrule his points of error. 4

Conclusion Having overruled appellant’s points of error, we affirm the trial court’s order denying appellant’s motion for post-conviction DNA testing.

Mackey K. Hancock Justice Do not publish.

4 The State also points out that appellant failed to suffici ently allege in his motion that the knife could not have been te sted at the time of trial. See T EX

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. A NN . art. 64.01(b); Leal v. State , 303 S.W.3d 292, 295 (Tex .Crim.App. 2009). Due to our disposition of t he points appellant raises, we need not address the merits of the State’s position on these facts. We note only that a failure to make a sufficient showing of the requirements under article 64.01(b) may se rve as an independent basis for denying appellant’s motion for pos t-conviction DNA testing. See Routier , 273 S.W.3d at 249–51.