IN THE

TENTH COURT OF APPEALS

No. 10-11-00318-CR

CHRISTOPHER LEAVELE PATT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 09-02307-CRF-85

MEMORANDUM OPINION

Christopher Leavele Patt filed a “Motion for Forensic DNA Testing” which the 

trial court denied. He appeals. Because the trial court did not abuse its discretion in 

denying Patt’s motion, we affirm.

In his first issue, Patt contends that the trial court abused its discretion in failing 

to find that Patt satisfied the “interests of justice” exception of former article 

64.01(b)(1)(B) of the Code of Criminal Procedure. Act of 2001, 77th Leg., ch. 2 (S.B. 3), § 

2, eff. April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of 
Patt v. State Page 2

2011 82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011 (current version at TEX. CODE 

CRIM. PROC. ANN. art. 64.01(b) (West Supp. 2012)).1 We conduct a de novo review of the 

trial court’s ruling. See Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008).

Article 64.01 provides that a convicted person may submit a motion to the 

convicting court requesting DNA testing of evidence containing biological material that 

was in the State's possession during trial. Act of 2001, 77th Leg., ch. 2 (S.B. 3), § 2, eff. 

April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of 2011 

82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011, (formerly TEX. CODE CRIM. PROC.

ANN. art. 64.01(a) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (West 

Supp. 2012)). The motion must be accompanied by an affidavit sworn to by the 

convicted person, containing statements of fact in support of the motion. Id.; Dinkins v. 

State, 84 S.W.3d 639, 641-642 (Tex. Crim. App. 2002). Because Patt filed his motion for 

DNA testing before the effective date of the changes to Chapter 64 and because DNA 

testing had not been done at his trial, Patt was required to show in his motion that no 

DNA testing occurred "through no fault of the convicted person, for reasons that are of 

such a nature that the interests of justice require DNA testing." Act of 2001, 77th Leg., 

ch. 2 (S.B. 3), § 2, eff. April 5, 2001 (formerly TEX. CODE CRIM. PROC. ANN. art. 

64.01(b)(1)(B)).

 

1 Patt filed his motion for DNA testing in May of 2011, thus the former version of the statute applies. All 

citations to the statute are to the former version.
Patt v. State Page 3

Initially we note that Patt’s “affidavit” is deficient. Instead of “containing 

statements of fact in support of the motion” as required, Patt simply states under a 

heading of “Inmate’s Declaration:”

I, Christopher Leavele Patt, prisoner number 162271 being 

presently incarcerated in the McConnell Unit, declare under penalty of 

perjury that I have read the foregoing Motion for DNA Testing and the 

factual assertions contained therein are according to my belief true and 

correct.2

This is not an affidavit “containing statements of fact in support of the motion.” 

Because there is no affidavit containing facts in support of the motion, the trial court did 

not err in denying Patt’s Motion for Forensic DNA Testing. See Dinkins v. State, 84 

S.W.3d 639, 642 (Tex. Crim. App. 2002).

Even if the declaration is a sufficient affidavit, the motion itself is insufficient to 

show “no fault.” A person claiming “no fault” in failing to request DNA testing must 

make a more particularized showing of the absence of fault under article 64.01(b)(1)(B) 

because Chapter 64 requires defendants to avail themselves of whatever DNA 

technology may be available at the time of trial. Ex parte Gutierrez, 337 S.W.3d 883, 895 

(Tex. Crim. App. 2011). Patt’s motion fails to address the “no fault” provision of article 

64.01(b)(1)(B). Thus, the trial court did not abuse its discretion in denying Patt’s motion 

for DNA testing.

Patt’s first issue is overruled.

 

2 This statement barely meets the requirements of an unsworn declaration by an inmate. TEX. CIV. PRAC.

& REM. CODE ANN. § 132.001(e) (West Supp. 2012).
Patt v. State Page 4

Because of our disposition in Patt’s first issue, we need not address Patt’s second 

issue that the trial court abused its discretion in failing to find that Patt established by a 

preponderance of the evidence that he would not have been convicted if exculpatory 

results had been obtained through DNA testing.

The trial court’s order is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed September 13, 2012

Do not publish 

[CRPM]