## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
N O. AP-77,112 JEDIDIAH ISAAC MURPHY, Appellant

v. THE STATE OF TEXAS

ON DIRECT APPEAL FROM DENIAL OF MOTION FOR FORENSIC DNA TESTING IN CAUSE NO. F00-02424-M FROM THE 194 T H JUDICIAL DISTRICT COURT

DALLAS COUNTY Per curiam . O P I N I O N Appellant appeals f

rom a trial court order deny ing his m o tion f or post-conviction DNA testing f

iled pursuant to Texas Code of Crim i nal Procedure Chapter 64. 1 Appellant raises two points of

error. Af

ter reviewing the issues, we f i nd Appellant’s points of

error to be without m erit. Consequently , we af f irm the trial court’s order deny ing testing.

1 References to Chapters or Articles in this opinion are to the Tex as Code of Criminal Procedure unless otherwise specified.M ur phy- 2 I. Background Appellant was convicted in June 2001 f or the capital m

urder of 80-y ear-old Bertie Cunningham

. See T E X . P E N A L C O D E §19.03(a). The evidence showed that on October 4, 2000, Cunningham

went shopping at a m all in Plano, Texas. She was returning to her Garland hom e when Appellant f orced her at gunpoint to give him a ride. Ultim ately , Appellant f

o rced Cunningham

into the trunk of h er car and shot her. Appellant then drove Cunningham ’s car around and used her credit cards to buy alcohol and beer, am ong other things. At som e point, he picked up his niece and two of her school-age f

riends. He later dropped of

f his niece, and he and the boy s continued driving around. Ultim ately , he bought them both m otorized scooters bef ore taking them

hom e. He eventually

rem oved Cunningham

f rom the trunk and dum

p ed her in a creek. As set out in Appellant’s m otion f or DNA testing, the State presented evidence at the punishm ent phase showing that he engaged in a num ber of acts of violence and thievery prior to comm itting the instant of f ense. This included evidence that:

• In 1993, af

ter leaving a high school graduation party with a girl, Appellant parked the vehicle, pulled out a gun, put it to the girl’s head, and asked her if she was af raid to die.

• In 1994, Appellant stole cash and checks f rom a f r iend’s saf

e. He was convicted and placed on probation f or burglary

of a h abitation.

• Also in 1994, Appellant stole property f rom a car. He was convicted and placed on probation f

or burglary

of a m otor vehicle.

• In 1995, Appellant helped com m it auto thef t, f o r which he was ultim ately placed on probation.M ur phy- 3

• In 1997, Appellant assaulted his girlf riend, Chelsea W illis, and one of her f riends. Specif i cally , he pulled a knif

e on W illis and broke her nose.

• Around the tim e that Appellant assaulted W illis, he also carjacked Sherry l W i lhelm in Arlington. W ilhelm testif ied that the carjacker f

orced her into her car, choked her, and m ade her get on the f loor bef ore he drove away . W ilhelm escaped f rom her kidnapper by

jum ping out of

the car on the highway . W ilhelm ’s car was f ound abandoned on the side of a highway

in W ichita Falls the day

af ter the carjacking. W ilhelm

helped the police create a com posite sketch of

her captor, but the case went cold until 2000 when W i lhelm saw Appellant’s picture on television as a suspect in Cunningham ’s m urder. W hen W ilhelm

saw Appellant’s picture, she contacted the police. She later identif ied Appellant in a photo lineup.

• Also in 1997, a m an attacked 69-y ear-old Marjorie Ellis in W ichita Falls and stole her purse. The authorities f ound property

belonging to Ellis in W ilhelm ’s abandoned car.

• In 2000, Appellant threatened to kill a wom an who was try ing to help him learn a trade, and he bragged to her about all the dif f e rent weapons he had access to. In addition, psy chiatrist Jay e Crowder testif ied that Appellant was chronically depressed, alcohol dependent, narcissistic, and had borderline personality disorder with anti-social f eatures. Af ter hearing this evidence, the jury answered the punishm ent questions in a

m anner requiring the trial court to sentence Appellant to death. This Court af f irm ed the judgm ent and sentence on direct appeal. Murphy v. State , 112 S.W .3d 592 (Tex. Crim

. App. 2003). This Court also denied relief on the claim s raised in Appellant’s initial habeas application and dism issed his subsequent application as an abuse of the writ. Ex parte Murphy , No. W R-70,832-01 (Tex. Crim

. App. Mar. 25, 2009) (not designated f or publication); Ex parte Murphy , No. W R-70,832-02 (Tex. Crim . App. Mar. 21, 2012) (notM ur phy- 4 designated f

or publication). II. Chapter 64 and the Standard of Review As we have previously

stated, “There is no f

ree-standing due-process right to DNA testing, and the task of f

ashioning rules to ‘harness DNA’s power to prove innocence without unnecessarily

overthrowing the established sy stem of crim inal justice’ belongs ‘prim arily to the legislature.’” Ex parte Gutierrez , 337 S.W .3d 883, 889 (Tex. Crim . App. 2011) (quoting District Attorney’s Office v. Osborne , 557 U.S. 52, 62 (2009)); see also Ex parte Mines , 26 S.W

. 3d 910, 914 (Tex. Crim

. App. 2000) (stating that there is no constitutional right to post-conviction DNA testing). The Texas Legislature created a process f or such testing in Chapter 64. Article 64.01, titled “Motion,” def ines “biological m aterial” and states that “[ a] convicted person m ay

subm it to the convicting court a m otion f or f orensic DNA testing of evidence that has a reasonable likelihood of c o ntaining biological m aterial.” Art. 64.01(a-1). The statute f

urther provides that “[ t]he m otion m ay request f orensic DNA testing only

of evidence described by Subsection (a-1) that was secured in relation to the of f ense that is the basis of the challenged conviction and was in the possession of the state during the trial of

the of f ense[ .]” Art. 63.01(b). The convicting court m ay order DNA testing under Chapter 64 only if the court f

inds that: (1) the evidence still exists and is in a testable condition; (2) the evidence has been subjected to a suf f icient chain of custody ; (3) the evidence is reasonably likely to contain biological m aterial suitable f orM ur phy- 5 DNA testing; and (4) identity is an issue in the case. Art. 64.03(a)(1). Additionally , the convicted person m

ust establish by

a preponderance of the evidence that: 1. he “would not have been convicted if exculpatory

results had been obtained through DNA testing; and” 2. “the request f

or the proposed DNA testing is not m a de to unreasonably delay the execution of

sentence or adm inistration of justice.” Art. 64.03(a)(2). In reviewing a judge’s ruling on a Chapter 64 m o tion, this Court gives alm ost total def erence to the judge’s resolution of historical f

a ct issues supported by

the record and applications-of

-law-to-f a ct issues turning on witness credibility and dem eanor. Reed v. State , 541 S.W .3d 759, 768 (Tex. Crim

. App. 2017). But we consider de novo all other application-of

-law-to-f act questions. Id . at 768-69. III. T he Current Chapter 64 Motion and the Trial Court’s Ruling In m id-February

2023, the State m oved the trial court to set Appellant’s execution date. On March 24, Appellant f iled in the trial court his Chapter 64 m o tion f o r DNA testing. In the m otion, he requested testing of : any and all evidence collected in the W ilhelm /Ellis robberies, including, but not lim i ted to, any

receipts, checkbooks, or paperwork recovered in these of f enses. This evidence contains biological m aterial that was secured in relation to the of

f ense that is the basis of the challenged conviction and was in the possession of

the state during the trial of the of f ense. Appellant asserts that if

exculpatory

results are obtained f

rom the evidence collected in the W ilhelm

/Ellis robberies, “there is no doubt that the punishm e nt assessed would haveM ur phy- 6 been dif f erent.” The trial judge denied the request in a written order which stated in its entirety : Bef ore the Court is [ Appellant’s] Motion f o r Post-Conviction Forensic DNA Testing under Chapter 64 of the Code of

Crim inal Procedure. The Court f

inds that [ Appellant’s] request f ails as a m a tter of law because he seeks to test only punishm ent-related evidence. The Court f urther f i nds that [ Appellant] has not shown by a preponderance of the evidence that his m otion is not f iled f or purposes of

delay ing execution of sentence or the adm inistration of justice. Accordingly , [ Appellant’s] m otion is hereby

DENIED. The court m ade no other explicit f indings of

f act or conclusions of

law. IV. A ppellant’s Arguments on Appeal and the Court’s Analysis In his f irst point of

error, Appellant asserts that the trial court erred in f inding that he is not entitled “as a m atter of law” to the testing of

evidence that relates only to punishm ent. Appellant recognizes that prior case law has stated that Chapter 64 DNA testing is not available f

or punishm ent only

evidence, but he argues that this holding should be reexam ined in light of the 2003 statutory am endm ents to Chapter 64. Specif ically , Appellant asserts that the am endm e n ts deleted language requiring a def endant to show that he would not have been “prosecuted” if exculpatory results had been obtained. Now, he say s, the statute requires only that a def

endant show that he would not have been “convicted.” He f urther argues that, given Texas’ bif urcated sy stem , “convicted” should be interpreted to encom p ass both the judgm ent of guilt and the

assessm ent of

punishm ent. W e disagree. In an earlier version of Article 64.03(a)(2)(A), the statute required aM ur phy- 7 person seeking DNA testing to show by a preponderance of

the evidence that he would not have been “prosecuted or convicted” should exculpatory DNA results be obtained. In Kutzner v. State , 75 S.W .3d 427, 439 (Tex. Crim . App. 2002), we held that this phrase was subject to dif

f erent m eanings and, thus, was am biguous. W e hy

p othesized that (1) it could be interpreted to require a convicted person to prove his innocence, or (2) it could be interpreted to require a convicted person to show that “f avorable DNA results would result in a dif

f erent outcom e unrelated to the convicted person’s guilt/innocence.” Id . at 437. Looking at legislative history , we determ ined that the Legislature clearly intended the language to m ean the f orm er—that a convicted person seeking DNA testing m ust show a reasonable probability that exculpatory testing would show his innocence. Id . at 439. The Legislature thereaf ter am ended Chapter 64 in response to our holding in Kutzner . It m ade clear that a def endant m ust: (1) m eet just a preponderance of the evidence standard f

or showing innocence, and (2) show only that he would not have been convicted. See Smith v. State , 165 S.W .3d 361, 364 (Tex. Crim . App. 2005); see also W ilson v. State , 185 S.W .3d 481, 491 n.4 (Tex. Crim . App. 2006). In 2011, this Court expressly stated that Chapter 64 “does not authorize testing when exculpatory testing results m ight af

f ect only the punishm ent or sentence that [ a def endant] received.” Gutierrez , 337 S.W .3d at 901. This holding is aligned with our interpretation of the Chapter 64 language in K utzner and the Legislature’s later am endm ents of the statutoryM ur phy- 8 language at issue in Kutzner . Appellant also urges this Court to consider his assertion that “convicted” should be interpreted to encom p ass both the judgm ent of guilt and the

assessm ent of

punishm ent, but the analy sis in Kutzner and the Legislature’s later

am endm ents of

the statute reject this interpretation. See also Ex parte W hite , 506 S.W .3d 39, 42-43 (Tex. Crim . App. 2016) (com paring identical “would not have been convicted” phrase in Article 11.073(b)(2) with that in Article 64.03(a)(2)(A) and rejecting idea that “convicted” encom

passes m ore than a f

inding of guilt). Further, there is other language in Chapter 64 that supports the trial court’s f inding. For exam

ple, Article 64.01(a-1) states that, “[ a] convicted person m ay subm it to the convicting court a m otion f or f orensic DNA testing of

evidence that has a reasonable likelihood of

containing biological m aterial.” Appellant was not convicted of the W i lhelm or Ellis robberies. In f

act, he was never brought to trial f or them . The convicting court f

or the capital m

urder is not necessarily the convicting court f or the robberies. Appellant twists the statutory language by

suggesting otherwise. Additionally , Article 64.01(b) say s that, “[ t]he [ Chapter 64 DNA] m otion m ay request f orensic DNA testing only of evidence described by

Subsection (a-1) 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 [ .]” (Em phasis added.) In this appeal, the “challenged conviction” is the capital m urder conviction. The W ilhelm /Ellis evidence, which was secured three y ears bef ore the capital m

urder was com m itted, wasM ur phy- 9 clearly not secured in relation to the capital m urder of f ense. Appellant’s attem

pt to argue that evidence of

extraneous acts is “secured in relation to” the capital murder on trial is

m isguided. Given prior precedent and the statutory language, we conclude that the trial court did not err in determ ining that Appellant’s request f or DNA testing under Chapter 64 f ailed “as a m atter of

law.” W e overrule Appellant’s f irst point of error. In his second point of

error, Appellant asserts that the trial court erred in f inding that he had not shown that his DNA testing m otion was not f iled “f or the purposes of unreasonably

delay ing execution of

sentence or the adm inistration of justice.” Appellant notes that Chapter 64 contains no deadline f or the f iling of a m otion. He also points out that the statute requires a person to show that the request f or testing is not m ade to unreasonably delay

the execution of

sentence or the adm inistration of justice. Further, he

comm ents that Chapter 64 does not require a m ovant to explain why he did not raise a claim earlier. Appellant em

phasizes that he “f

i led his Chapter 64 request on March 24, 2023, bef ore his execution date had even been scheduled.” Finally , Appellant cites to Thacker v. State , 177 S.W .3d 926, 927 (Tex. Crim . App. 2005), and Brown v. State , No. AP-75,469 (Tex. Crim . App. July 19, 2006) (not designated f or publication), f

or the proposition that a m otion f or DNA testing f

iled less than a m o nth bef ore an execution setting supports a trial court f inding that the f

iling of the m otion was m ade to unreasonably

delay the execution of

sentence or the adm inistration of justice. W h ereasM ur phy- 10 his m otion, he notes, was f iled bef ore his execution date had even been scheduled. Appellant’s argum ent is disingenuous. Appellant was convicted of capital m urder in 2001. He challenged the use of the W ilhelm

and Ellis of

f enses on direct appeal and in habeas applications. Chapter 64, authorizing m otions f or DNA testing, has been in ef f ect since April 2001. See Thacker , 177 S.W .3d at 927. But Appellant waited until after the State f iled a m otion to set an execution date bef ore he f iled f o r DNA testing. 2 W e recognize that Appellant f i led his m otion f

or DNA testing bef

ore his execution was scheduled, but that is only because the court set a later hearing on the State’s m otion to set a date. And, although Appellant has had 22 y ears since his capital m urder conviction, and DNA testing has been scientif ically possible throughout that tim e, Appellant did not

m ove f or DNA testing until March 2023, when it appeared that the setting of an execution date was im m inent. See Reed v. State , 541 S.W

. 3d 759, 778 (Tex. Crim . App. 2017) (noting that circum stances surrounding the request m ay be considered, including: the prom ptness of the request, the tem poral proxim ity

between the request and the sentence’s execution, and the ability to request the testing earlier). Under the f acts in this case, we hold that the record supports the trial court’s f inding of unreasonable delay . W e o verrule Appellant’s second point of error. Finding no reversible error in the proceedings below, we af f irm the trial court’s

2 The State filed a motion on F ebruary 14, 2023, to set an October ex ecution date. Appellant filed his motion in March 2023 for DNA testing , and the court held a hearing on both matters in April 2023, thereafter setting an ex ecution date.M ur phy- 11 order deny ing the m otion f or f orensic DNA testing pursuant to Texas Code Crim inal Procedure Chapter 64. Delivered: Septem

ber 26, 2023 Do Not Publish