Perry Lee Olson v. The State of Texas--Appeal from 1st District Court of Newton County

IN THE

TENTH COURT OF APPEALS

No. 10-02-278-CR

PERRY LEE OLSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 1st District Court

Newton County, Texas

Trial Court # 3614

MEMORANDUM OPINION

Perry Lee Olson appeals from the trial court s denial of his motion for forensic DNA testing. Olson s counsel on appeal has filed an Anders brief indicating that he finds no basis that might arguably support the appeal and requesting that he be permitted to withdraw the appeal as frivolous. He gave proper notice to Olson, who has filed a pro se brief in which he contends, in a single issue, that the trial court erred by denying his motion for forensic DNA testing. We affirm.

Olson was convicted of murder. He does not dispute that he shot the victim. Therefore, identity of neither the actor nor the victim is at issue. Olson sought DNA testing of a substance on a shirt and on the metal threshold of a door. Evidence was presented showing that the door threshold is unavailable for testing. With respect to the shirt, Olson seeks to establish that the substance on the shirt is not the blood of the victim, which, he contends, would tend to support his position that he did not shoot the victim at the close range maintained by the State, and that he shot the victim thinking that he had broken in the house for the purpose of committing arson.

In order to be entitled to an order for forensic DNA testing, the movant must show that the evidence still exists, is in a condition making DNA testing possible, and 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; that identity was or is an issue in the case; that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and that the request is not made to unreasonably delay the execution of sentence or administration of justice.

The trial court could have reasonably concluded that, with respect to the door threshold, it is unavailable for testing; that identity was not an issue in this case; and that a reasonable possibility does not exist that Olson would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

Olson argues that identity was at issue with respect to whose blood is on the shirt he wishes to test. However, it is undisputed that it was Olson who fired the fatal shot. Olson suggests that the identity of whose blood was on his shirt was undetermined and that, consequently, identity was an issue. He also relates that his identity as a murderer or as an innocent, lawful shooter protecting his home at night was an issue. The Texas Court of Criminal Appeals does not seem to follow Olson s definition of when identity is in issue. See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002). (where the appellant questioned his counsel s effectiveness in not adequately asserting that identity was an issue, court noted that since appellant confessed to the murder his identity was not an issue). Inasmuch as identity was not in issue, the trial court did not err in denying Olson s motion. We also note that an exculpatory DNA test in this case would not prove Olson s innocence, but would merely muddy the waters. Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). We overrule Olson s single issue.

The court s order denying Olson s motion for forensic DNA testing is affirmed.

JOHN G. HILL

Senior Justice

Before Chief Justice Davis,

Justice Vance, and

Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed July 30, 2003

Do not publish

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