Danny Ficker v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00804-CR
Danny FICKER,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1987-CR-2950
Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 14, 2004

AFFIRMED

Danny Ficker appeals the trial court's denial of his post-conviction motion for DNA testing. We affirm the trial court's order.

Danny Ficker was found guilty of aggravated sexual assault on December 9, 1987, and was sentenced to forty years imprisonment. On May 6, 2003, Ficker filed a motion requesting post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01- .05 (Vernon Supp. 2004). The trial court denied Ficker's motion following a hearing. The trial court denied Ficker's motion because it found, among other things, that the motion did not comply with the requirements of article 64.01(a). See id. art. 64.01(a).

In reviewing a trial court's decision under chapter 64, we employ the familiar bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Id.

Article 64.01 of the code of criminal procedure provides that a motion for DNA testing "must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion." Tex. Code Crim. Proc. Ann. art. 64.01(a). In this case, however, Ficker did not attach an affidavit to his motion as required by article 64.01(a). Because Ficker's motion for DNA testing did not comply with the requirements of the statute, we cannot say the trial court abused its discretion by denying Ficker's motion.

The order of the trial court is affirmed.

Catherine Stone, Justice

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