DONALD LEE WICKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 18, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00163-CR
............................
DONALD LEE WICKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-82251-04
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MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Donald Lee Wicker appeals the trial court's order denying his request for appointment of counsel and for forensic testing of certain DNA evidence.   See Footnote 1  See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006 & Supp. 2007). Appellant raises five issues on appeal. We affirm the trial court's order.
        Appellant was charged and convicted of sexual assault. See Wicker v. State, No. 05-05- 01469-CR, 2006 WL 1045922, at *1 (Tex. App.-Dallas Apr. 21, 2006, pet. ref'd) (not designated for publication). On appeal, this Court modified the judgment and as modified, affirmed the trial court's judgment. Wicker, 2006 WL 1045922, at *2.
        In October 2006, appellant filed a motion for preservation and forensic testing of DNA evidence, a motion to proceed in forma pauperis, and a request for appointment of counsel. After the State filed its response, the trial judge denied appellant's motions and requests. This appeal followed.
        When reviewing a trial court's order on a defendant's motion for DNA testing, “we afford almost total deference to a 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.” Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Under this standard, we defer to the trial judge's findings when reviewing appellant's contentions, the credibility of appellant's affidavit, and whether the claimed DNA evidence exists and is in a condition to be tested. Id. “Although subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.” Id.
        Article 64.01 provides that a “convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.” Tex. Code Crim. Proc. Ann. art. 64.01(a). The motion “may request forensic DNA testing only of evidence” containing biological material that “was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense.” Tex. Code Crim. Proc. Ann. art. 64.01(b). A convicting court may order forensic DNA testing only if
 
(i) the court finds the evidence still exists, is in a condition making DNA testing possible, and has been subjected to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in any material respect;
 
 
 
        
 
(ii) identity was or is an issue in the case; and
 
 
 
 
(iii) the convicted person establishes by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing and 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 four of his five issues, appellant challenges his conviction because
 
 
*
 
The Plano Police Department erred in not testing the tow truck for blood;
 
 
 
 
 
 
*
 
The alleged victim was unreliable and told conflicting versions of events, therefore her testimony should have been disregarded and excluded;
 
 
 
 
 
 
*
 
Appellant was denied effective assistance of counsel at trial; and
 
 
 
 
 
 
*
 
Appellant's right to due process of law was violated when he was convicted of a crime he did not commit and the evidence presented at trial was not enough to prove any crime occurred.
 
 
 
 
These contentions do not raise issues that are cognizable in a motion for forensic DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a) & 64.03; see also Reger v. State, 222 S.W.3d 510, 513-14 (Tex. App.-Fort Worth 2007, pet. ref'd), cert. denied, 128 S. Ct. 917 (2008) (challenge to visiting trial judge's constitutional qualifications and subsequent trial judge's failure to take notice of facts offered in support of visiting judge's disqualification not relevant to trial court's determination as to whether appellant entitled to post conviction DNA testing); Watkins v. State, 155 S.W.3d 631, 634 (Tex. App.-Texarkana 2005, no pet.) (appellant's claims of ineffective assistance of counsel and denial of right to speedy trial are issues not cognizable in Chapter 64 appeal). Because they are not appropriate grounds for a motion for forensic DNA testing, the trial judge did not abuse his discretion in denying the motion on any of these four grounds.
        In his second issue, appellant addresses the following evidence: photographs of the victims after the assault, a tampon found at the scene several days after the assault, and pubic hairs found on a sanitary napkin after the assault. With respect to the photographs and the tampon, appellant's arguments are that the evidence is circumstantial and hearsay, and that the tampon was clearly planted days after the assault. As with appellant's previous four issues, these complaints are not cognizable in a motion for forensic DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a) & 64.03; see also Reger, 222 S.W.3d at 513-14; Watkins, 155 S.W.3d at 634. It follows that the trial judge did not abuse his discretion in denying appellant's motion on these grounds.
        With respect to appellant's third complaint regarding the hairs, appellant notes the crime lab technician testified he analyzed the hairs under a microscope and found they were dissimilar to a known sample of appellant's pubic hair. Appellant claims this brings into question “that the 'perpertrator' [sic] of this alleged crime is an issue” or that “the alleged victim lied about it all together.” We conclude appellant failed to meet his burden under article 64.03. The presence of another person's DNA at a crime scene will not, without more, constitute affirmative evidence of appellant's innocence. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002). The victim testified she may have had sexual relations with her boyfriend the morning of the assault. The crime lab technician testified that, in his report, there was no evidence linking appellant to the victim. The jury was made aware that the pubic hairs the technician examined were dissimilar to appellant's but convicted appellant nonetheless. DNA testing of the hairs would not establish appellant's innocence but would serve only to “muddy the waters.” See Rivera, 89 S.W.3d at 59 (requisite showing under chapter 64 not met if exculpatory test results would “merely muddy the waters.”). The trial judge did not abuse his discretion in denying appellant's motion for forensic DNA testing. We overrule appellant's second issue.
        We affirm the trial court's order.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070163F.U05
 
Footnote 1 In 2001, the Texas Legislature enacted chapter 64 of the code of criminal procedure to provide for post-conviction forensic DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-5, amended by Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 1-5, 2003 Tex. Gen. Laws 16, 16-17 and Act of May 24, 2007, 80th Leg., R.S., ch. 1006, §§ 2-4, 2007 Tex. Gen. Laws 3523, 3523-25 (current version at Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006 & Supp. 2007)). The 2003 amendment applies to motions for forensic DNA testing filed on or after September 1, 2003, but before September 1, 2007. See Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17 and Act of May 24, 2007, 80th Leg., R.S., ch. 1006, §5(b), 2007 Tex. Gen. Laws 3523, 3525. Because appellant filed his motion for forensic DNA testing on October 4, 2006, the original 2001 act as amended by the 2003 act applies to his proceeding and to our discussion on appeal. Throughout this opinion, all references to chapter 64 are to the 2001 law as amended by the 2003 amendments in effect at the time appellant filed his motion.