## NUMBER 13 - 1 3 - 00 283 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

MARK ANTHONY ESTRADA A/K/A MARK ESTRADA A/K/A MARK ANTHONY MONCADA ESTRADA , Appellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 1 39 th District Court of Hidalgo County, Texas.



## MEMORANDUM OPINION
Before Justice s Benavides, Perkes , and Longoria Memorandum Opinion by Justice Perkes Appellant Mark Anthony Estrada appeals the trial court’s denial of his motion for post
- conviction DNA testing

. 1 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.01 (West,

1 Texas Code of Criminal Procedure article 64.05 provides for an appeal of the denial of a post

-2

Westlaw through 2013 3d C.S.). By two issues, appellant complains the trial court erred by denying his motion because: (1) the trial court applied an incorrect exculpatory legal standard; and (2) he would not have been convicted of murder i f exculpatory results had been obtained through DNA testing. We affirm.
I. P OST - C ONVICTION B ACKGROUND 2 Appellant was convicted of murder and sentenced to life in prison. Appellant ’s counsel filed an Anders brief on appeal , and a ppellant filed a pro se brief in response. After review, w e concluded that the record did not support any meritorious claims , and affirmed the trial court’s judgment

. See Estrada v. State , No. 13

- 09

- 00493

- CR, 2011 WL 3370407 (Tex. App.

— Corpus Christi Aug. 4, 2011, pet. ref’d) (mem. op.) (not designated for publication)

. The Texas Court of Criminal Appeals refused appellant’s petition for discretionary review.
A ppellant subsequently filed his “motion to request counsel [for] DNA testing”, and
his “motion for [post

- conviction] DNA testing.” Appellant requested DNA testing on the following items: “ t wo swabs from the bathroom floor railing ; d entures from the bathroom floor ; t oilet brush handle ; c ross pendent from the bathroom floor ; b ra from blue trash can
in bathroom ; b roken necklace on shower floor ; b roken jewelry from bathroom ; k nife found unwiped on shower floor ; s ponge on kitchen floor ; t issue at kitchen bar ; s wab from master

conviction motion for forensic DNA testing

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.05.

2 Inasmuch as this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T E X

. R. A PP

. P. 47.4.3

bedroom ; d amaged quarter of earring ; t ape lift ; t issue paper living room left outlet 3 ; and
t wo swabs from lifting handle on green trash can ”.
The trial court denied appellant’s motions, and entered findings of fact and conclusions of law in support thereof

. 4 In this regard, the trial court made the following conclusions of law: CONCLUSIONS OF LAW
1. A motion may request forensic DNA testing only of evidence that (1) was not previously subjected to DNA testing, or (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likeli hood of results that are more accurate and probative that the results of the previous test. See T EX

. C ODE C RIM

. P ROC

. art. 64.01( b ) (2012). Petitioner has not shown that biological material exists which could be subjected to forensic DNA testing.
2. In light of the significant evidence of the Petitioner's guilt, the Petitioner has not shown that he would not have been convicted based upon the results of additional forensic DNA testing. Article 64.03 requires a convicted person to establish by a preponder ance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing

. T EX

. C ODE C RIM

. P ROC

. art. 64.0 3 ( a)(2)(A) (2012). Exculpatory results that would merely "muddy the waters" are insufficient to show tha t the defendant would not have been convicted. Kutzner v. State , 75 S.W.3d 427, 439 (Tex. Crim. App. 2002).
3. The defendant has failed to present reasonable grounds for a motion for forensic DNA testing to be filed, and his request for the appointment of co unsel should therefore be denied. T EX

. C ODE C RIM

. P ROC

. art. 64.01(c) (2012).
II. S TANDARD OF R EVIEW AND A PPLICABLE L AW

3 “Living room left outlet” refers to the location where investigators located the tissue paper.

4 Although t he trial court did not expressly state that it took judicial notice of the trial record , we are permitted to presume it took judicial notice of the record

. Vahlsing, Inc. v. Missouri Pac. R.R. Co. , 563 S.W.2d 669, 674 (Tex. Civ. App.

— Corpus Christi 1978, no writ). We may also, in exercise of our discretion, take judicial notice of “adjudicative facts” for the first time on appeal. Watkins v. State , 245 S.W.3d 444, 455

– 56 (Tex. Crim. App. 2008) (citing T EX

. R. E VID

. 201 ).4

C hapter 64 of the Code of Criminal Procedure requires the judge of the convicting court to order DNA testing when requested by a convicted person if it finds the convicted person has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing

. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.01, 64.03; see Ex parte Gutierrez , 337 S.W.3d 883, 889 (Tex. Crim. App. 2011). Specifically , Chapter 64 states, in relevant part: (a) A convicting court may order forensic DNA testing under this chapter 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; 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 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.
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03(a). In reviewing the trial court’s c hapter 64 rulings, we 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 we consider de novo all other appl ica tion

- of

- law

- to
fact questions. See Ex parte Gutierrez , 337 S.W.3d 883, 890 (Tex. Crim. App. 2011);5

see also Olivarez v. State , Nos. 13

- 11

- 00483

- CR, 13

- 11

- 00484

- CR, 2012 WL 518 7911 (Tex. App.

— Corpus Ch risti Oct. 18, 2012, no pet.) (mem. op.) (not designated for publication)

. I n determining whether DNA testing should be ordered, we look at the record at the time of the conviction. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03(a)(2); Smith v. State , 165 S.W.3d 361, 364 (Tex. Crim. App. 2005) (appropriate inquiry assumes exculpatory DNA resul ts were available at trial).
III. D ISCUSSION By his first issue, a ppellant contends the trial court applied an incorrect legal standard in its analysis . Specifically, appellant argues that the exculpatory burden of proof standard discussed in Kutzner has been superseded by subsequent amendment of Chapter 64

. See Kutzner v. State , 75 S.W.3d 427, 43 9 (Tex. Crim. App. 2002) , superseded by statute T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.0 2 ( a )( 2 ), as recognized in Ex parte Gutierrez

, 337 S.W.3d at 890

. 5 In this regard, a ppellant is apparently assuming
that be cause the trial court cited Kutzner in its conclusions of law , the trial court applied an incorrect legal standard to his request for DNA testing. We disagree.

5 Kutnzer applied a n earlier version of article 64.03 of the Texas Code of Criminal Procedure that has since been amended. See Kutzner v. State , 75 S.W.3 d 427, 439 (Tex. Crim. App. 2002). At th at time , the statute read , in relevant part: (2) the convicted person establishes by a preponderance of the evidence that: (A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;

. . . . See Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2

– 4 (amended 2003, 2007, & 2011) (empha sis added) (current version at T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.0 3 ( a )( 2 ) (West, Westlaw through 2013 3d C.S.)).6

The trial court properly stated in its conclusions of law that “[a]rticle 64.03 requires a convicted person to establish by a preponderance of the evidence that he would not have been convicted if exculpatory result s had been obtained through DNA testing.” This is a correct statement of the current law. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03(a)(2)(A). Alt hough appellant complains about the trial court ’ s statement that “exculpatory results that ‘muddy the waters’ are insufficient to show that [he] would not have been convicted,” such a conclusion is also correct. See Gutierrez, 337 S.W.3d at 888 (holding that “favorable” DNA test result must be the sort of evidenc e that would affirmatively cast doubt upon validity of inmate's conviction; otherwise, DNA testing would simply “muddy the waters ” ). We overrule appellant’s first issue. By his second issue, appellant argues that he established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03(a)(2)(A). During the trial, appellant ’s defense was premi sed on a theory that a n unknown intruder committed the murder. He now claims that “[g]iven the degree of unidentified prints in blood, various items such as bloody tissues, bloody sponge, bloody shoe/ fingerprint, the blood splatter beyond the m aster bath room, and the blood on the ice chest with the gloves inside of it, it is apparent that a lone intruder tried to remove his own presence and stage a seconda ry crime scene and leaving through an entry that was not tested for prints or DNA.” Appellant's argu ment essentially suggests that if the items he wants tested contain the DNA from a ny person other than himself or the victim , it would cast doubt that appellant was , in fact, the person who committed the murder

.7

Appellant fails to show how the requested DNA testing would prove his innocence by a preponderance of the evidence or how DNA testing would reach more accurate and probative results. A convicted person must do more than simply ask for the testing so that he might be able to raise an argument

. E ubanks v. State , 113 S.W.3d 562, 566 (Tex. App.

— Dallas 2003, no pet.). For instance , if DNA from an unknown third party was present on the knife, it could potentially place that party at the scene at the time of the killing and support appellant’s “unknown intruder” theory. See Routier v. State , 273 S.W.3d 241, 244 (Tex. Crim. App. 2008 ) (holding that defendant was entitled to DNA testing of blood stain on tube sock found in alley, blood stains from her night shirt, facial hair and pubic hair, and stains from door leading to garage, which could have
corroborated her account that an unkno wn intruder entered her home ). The blood from the knife, however, was tested and the only DNA recovered from it belonged to the victim. After reviewing the trial court’s record, w e conclude that even if DNA other than appellant’s and the victim’s DNA w as found on the items appellant wants tested , the evidence would still not show by a preponderance of the evidence that the DNA was from a different assailant

. See Prible v. State , 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (concluding that if DNA testing would not determine the identity of the person who committed the offense or would not exculpate the accused, then article 6 4.03(a)(2)(A)
has not been met ); see also Bell v. State , 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (en banc) (holding that presence of another person's DNA at crime scene will not, without more, constitute affirmative evi dence of appellant's innocence ).8

At trial, the S tate presented substantial evidence of appellant ’ s guilt. T he evidence show ed that appellant met the victim ; invited her to his friend’s home where he was staying at the time ; engaged in intercourse with her ; and had been alone with her when she suffered multiple fatal stab wounds. The evidence also showed that the stab wounds were not consistent with t he victim suffering a co nvulsion or committing suicide,

as appellant later claimed. Further , there was evidence that appellant put the victim’s body in a trash can; left the scene on his friend's ATV ; and later called his friend to warn him to clean up the blood that was left in the bathroom. Because appellant did not show by a preponderance of the evidence that exculpatory DNA tests w ould have proven his innocence, A ppellant did not meet his burden of proof for obtaining post
- conviction DNA testing . We overrule appellant’s
second issue.
IV. C ONCLUSION We affirm the trial court's orders

.

GREGORY T. PERKES Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 23 rd day of April , 201 5

.