NUMBER 13-13-00283-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 139th District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices 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 TEX. CODE CRIM. PROC. ANN. 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 if exculpatory results had 

been obtained through DNA testing. We affirm. 

I. POST-CONVICTION BACKGROUND2

Appellant was convicted of murder and sentenced to life in prison. Appellant’s 

counsel filed an Anders brief on appeal, and appellant filed a pro se brief in response. 

After review, we 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. 

Appellant 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: “two swabs from the bathroom floor railing; dentures from the bathroom 

floor; toilet brush handle; cross pendent from the bathroom floor; bra from blue trash can 

in bathroom; broken necklace on shower floor; broken jewelry from bathroom; knife found 

unwiped on shower floor; sponge on kitchen floor; tissue at kitchen bar; swab from master 

 

conviction motion for forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. 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 TEX. R. APP. P. 47.4.
3

bedroom; damaged quarter of earring; tape lift; tissue paper living room left outlet3; and 

two 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 likelihood of results that are more 

accurate and probative that the results of the previous test. See TEX. CODE 

CRIM. PROC. 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 preponderance of the evidence that he would not have 

been convicted if exculpatory results had been obtained through DNA 

testing. TEX. CODE CRIM. PROC. art. 64.03(a)(2)(A) (2012). Exculpatory 

results that would merely "muddy the waters" are insufficient to show that 

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 

counsel should therefore be denied. TEX. CODE CRIM. PROC. art. 64.01(c) 

(2012).

II. STANDARD OF REVIEW AND APPLICABLE LAW

 

3

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

4 Although the 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 TEX. R. EVID. 201). 
4

Chapter 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. TEX. CODE 

CRIM. PROC. ANN. 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.

TEX. CODE CRIM. PROC. ANN. art. 64.03(a). 

In reviewing the trial court’s chapter 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 application-of-law-tofact 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 5187911 

(Tex. App.—Corpus Christi Oct. 18, 2012, no pet.) (mem. op.) (not designated for 

publication). In determining whether DNA testing should be ordered, we look at the 

record at the time of the conviction. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2); 

Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005) (appropriate inquiry assumes 

exculpatory DNA results were available at trial). 

III. DISCUSSION

By his first issue, appellant 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, 439 (Tex. Crim. App. 2002), 

superseded by statute TEX. CODE CRIM. PROC. ANN. art. 64.02(a)(2), as recognized in Ex 

parte Gutierrez, 337 S.W.3d at 890.

5

 In this regard, appellant is apparently assuming 

that because 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 an 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.3d 427, 439 (Tex. Crim. App. 2002). At that 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) (emphasis added) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.03(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 results had been obtained through DNA testing.” 

This is a correct statement of the current law. See TEX. CODE CRIM. PROC. ANN. art. 

64.03(a)(2)(A). Although 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 evidence 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 TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A).

During the trial, appellant’s defense was premised on a theory that an 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 master bathroom, 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 secondary crime scene and leaving through an entry that was not 

tested for prints or DNA.” Appellant's argument essentially suggests that if the items he 

wants tested contain the DNA from any 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. Eubanks 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 unknown 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, we conclude that even if DNA other than 

appellant’s and the victim’s DNA was 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 64.03(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 evidence of appellant's innocence). 
8

At trial, the State presented substantial evidence of appellant’s guilt. The 

evidence showed 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 the victim suffering a convulsion 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 would have proven his innocence, Appellant did not meet his 

burden of proof for obtaining post-conviction DNA testing. We overrule appellant’s 

second issue. 

IV. CONCLUSION

We affirm the trial court's orders.

 

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

23rd day of April, 2015.