COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00263-CR

JEROME DIEGO BROWN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Jerome Diego Brown appeals from the trial court’s denial of his 

motion for post-conviction DNA testing. In three issues, he argues the trial court 

erred by considering affidavit evidence and by failing to hold a hearing on his 

motion. We overrule the issues and affirm the trial court’s denial.

On June 4, 1993, Officer J.M. Smith saw Appellant drop what appeared to 

be narcotics on the ground. Officer Smith approached Appellant and performed 

 1

See Tex. R. App. P. 47.4.
2

a pat-down search. Appellant began to struggle, causing Officer Smith and 

Appellant to fall to the ground. Appellant snatched Officer Smith’s gun and shot 

him in the leg. Appellant fled, but was apprehended in the attic of a nearby 

building. Officer Smith’s gun was found in the attic. Appellant’s sister and two 

other women saw Appellant shoot Officer Smith. Another witness, LaAndrela 

Harris, heard gunshots and saw Appellant, whom she knew, holding a gun over 

Officer Smith’s body. Appellant admitted shooting Officer Smith, but asserted it 

was an accident: “Apparently I shot at the ground with his gun and he rolled over 

and the bullet hit him.”

On April 29, 1996, Appellant pleaded guilty under a plea-bargain 

agreement to aggravated assault on a police officer with a per se deadly weapon. 

See Tex. Penal Code Ann. § 22.02 (West 2011). The trial court sentenced 

Appellant to 32 years’ confinement. Appellant did not appeal his conviction.

On January 2, 2004,2 Appellant filed a pro se motion for post-conviction 

DNA testing and requested appointment of counsel. See Act of April 3, 2001, 

77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2 (amended 2011) (current 

version at Tex. Code Crim. Proc. Ann. art. 64.01(a) (West Supp. 2012)). The trial 

court appointed counsel for purposes of filing a motion for post-conviction DNA 

 2

The date Appellant filed his pro se motion determines the version of the 

applicable statute that is relevant to Appellant’s arguments. See Act of April 25, 

2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17 (effective date 

may also be found at Tex. Code Crim. Proc. Ann. art. 64.01 historical & statutory 

notes (West 2006 & Supp. 2012)).
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testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. 

Laws 2, 3, amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003 

Tex. Gen. Laws 16, 16 (amended 2007) (current version at Tex. Code Crim. 

Proc. Ann. art. 64.01(c) (West Supp. 2012)). On March 25, 2011, appointed 

counsel filed a request for DNA testing. After receiving notice of Appellant’s 

motion, the State responded that the police officer’s pants were available for 

DNA testing.3

 See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. 

Gen. Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. 

art. 64.02 (West Supp. 2012)). Without holding a hearing, the trial court adopted 

the State’s proposed findings of fact and conclusions of law and denied 

Appellant’s motion. The trial court reasoned that identity was not an issue: 

“Based on the totality of the evidence, including [Appellant’s] plea, confession, 

and admissions, identity as to who committed the offense is not and was not at 

issue.” The trial court clarified that its conclusion that identity was not at issue 

was not based solely on Appellant’s plea, confession, and admission, which is 

prohibited. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. 

Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art.

64.03(b) (West Supp. 2012)). Appellant filed a notice of appeal from the denial. 

See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, 

 3

The State also disclosed that the prints from Officer Smith’s gun and a 

gun-shot-residue test were available, but asserted that they would not contain 

biological evidence.
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amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen. 

Laws 16, 17 (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (West 

2006)).

A convicted person who moves for post-conviction DNA testing under 

former article 64.01(b)(1) bears the burden of showing that evidence containing 

biological material was in the possession of the State, but was not previously 

subjected to DNA testing (1) because DNA testing was not available; (2) because 

DNA testing was available, but not technologically capable of providing probative

results; or (3) through no fault of the convicted person, for reasons that are of a 

nature such that the interests of justice require DNA testing. See Act of April 3, 

2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2–3 (amended 2011) 

(current version at Tex. Code Crim. Proc. Ann. art. 64.01(b)(1) (West Supp. 

2012)). If the convicted person meets these criteria, a trial court must order DNA 

testing only if the convicted person shows by a preponderance of the evidence 

that he would not have been convicted if exculpatory results had been obtained 

through DNA testing and that identity was at issue in the case. See Act of April 

3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3, amended by Act 

of April 25, 2003, 78th Leg., R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16, 16 

(current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2012)). 

See generally Leal v. State, 303 S.W.3d 292, 295–96 (Tex. Crim. App. 2009). 

When, as here, the trial court denies a motion for post-conviction DNA testing 
5

without conducting a hearing, we review the ruling de novo. See Smith v. State, 

165 S.W.3d 361, 363 (Tex. Crim. App. 2005).

In his first and second issues, Appellant argues that the trial court erred by 

relying on witness affidavits, which were inadmissible hearsay and violated the 

Confrontation Clause. But Appellant failed to raise these arguments in the trial 

court even though the State filed its response to Appellant’s motion 

approximately three weeks before the trial court entered its denial. Appellant’s 

failure to present his hearsay and Confrontation Clause objections to the trial 

court forfeits his complaint. See Tex. R. App. P. 33.1(a)(1); Sepeda v. State, 301 

S.W.3d 372, 374 (Tex. App.—Amarillo 2009, pet. ref’d). We overrule issues one 

and two.

In his third issue, Appellant contends that the trial court erred by failing to 

hold a hearing before denying the motion. As with his first two issues, Appellant 

failed to request a hearing on his motion or otherwise complain that a hearing 

was necessary. This failure forfeits his complaint. See Tex. R. App. P. 

33.1(a)(1); Sepeda, 301 S.W.3d at 376. Indeed, a trial court is not required to 

hold a hearing before determining whether the movant is entitled to postconviction DNA testing. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. 

App.), cert. denied, 543 U.S. 864 (2004); Jones v. State, 161 S.W.3d 685, 689 

(Tex. App.—Fort Worth 2005, pet. ref’d); cf. Act of April 3, 2001, 77th Leg., R.S., 

ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of April 25, 2003, 78th 

Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16, 16 (amended 2011) (current 
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version at Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2012)) (mandating 

hearing after DNA testing conducted). We overrule issue three.

Having overruled Appellant’s issues, we affirm the trial court’s denial.

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 13, 2013