JOHN FITZGERALD MCCONNELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 13, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00675-CR
............................
JOHN FITZGERALD MCCONNELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F95-73465-H
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        John FitzGerald McConnell appeals the trial court's order denying his motion for post-conviction DNA testing. In one issue, he argues that the trial court abused its discretion when it denied his motion because the evidence establishes that he would not have been convicted “had the results of the DNA test been available at trial.” We affirm the trial court's order.
 
Procedural Background        
 
        A jury found appellant guilty of aggravated robbery and sentenced him to sixty years in prison.   See Footnote 1  In 2004, appellant filed a motion for post-conviction DNA testing and a supporting affidavit, in which he stated that, to the best of his knowledge, there was evidence containing biological material in the State's possession that had never been tested for DNA evidence through no fault of his own. He argued that identity was an issue and stated “[t]here is a reasonable probability that [DNA testing] would show that I did not commit these offenses if DNA forensic testing was done on the biological material.”
        The trial court ordered the district attorney to deliver the physical evidence from appellant's case to the court, or to explain in writing why the evidence could not be delivered. See Tex. Code Crim. Proc. Ann. art. 64.02(a)(2) (Vernon Supp. 2008) (on receipt of motion for forensic DNA testing, convicting court must require attorney representing the State to deliver the evidence to court or explain in writing why it cannot be delivered). In the State's response to appellant's motion, it informed the court that “a bloody T-shirt and vest” are in the State's possession, but argued that appellant is not entitled to DNA testing because appellant “has failed to prove that a reasonable probability exists that exculpatory DNA tests would prove his actual innocence.”
        The trial court denied appellant's motion, finding that appellant “fail[ed] to show, by a reasonable probability, that DNA results would exculpate him as required by article 64.03(a)(2)(A).” In its order, the court stated it considered the requirements of articles 64.01 and 64.03 of the code of criminal procedure. Appellant timely filed his notice of appeal.
Analysis
 
        As a threshold issue, we consider whether the items available for post-conviction DNA testing would qualify for testing. See Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp. 2008); Routier v. State, No. AP-75,617, 2008 WL 2486417, at *1 (Tex. Crim. App. June 18, 2008) (“Before addressing the question of whether it is more probable than not that the appellant would not have been convicted had the results of the testing she now seeks been exculpatory, we deem it appropriate first to determine which of the nine items would qualify for post-conviction DNA testing[.]”). Under article 64.01 of the code of criminal procedure, evidence that was not previously subjected to DNA testing only qualifies for DNA testing if (1) DNA testing was not available at the time of trial; (2) DNA testing was available but not technologically capable of providing probative results; or (3) through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interests of justice. Tex. Code Crim. Proc. Ann. art. 64.01(b)(1); Routier, 2008 WL 2486417, at *2.
        Appellant states that, to his knowledge, evidence “that consisted of biological material” was in the State's possession during his trial, was not subjected to DNA testing, and “[t]he testing not being done was through no fault of my own.” In short, he contends that he is entitled to post- conviction DNA testing under article 64.01(b)(1)(B). See Tex. Code Crim. Proc. Ann. art. 64.01(b)(1)(B) (evidence may be subject to post-conviction DNA testing if it “was not previously subjected to DNA testing [ ] through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing”).
        As the court of criminal appeals recently explained in Routier, a convicted person must make “a particularized showing of the absence of fault” in order to invoke article 64.01(b)(1)(B). Routier, 2008 WL 2486417, at *3. In this case, although appellant's affidavit below stated that the materials had never been tested “through no fault of my own,” appellant does not argue that he requested DNA testing at the time of his trial, nor does he offer any specific evidence or explanation about why the lack of DNA testing during his trial was not his fault. Consequently, we cannot conclude that the evidence for which appellant seeks DNA testing would qualify for testing, nor can we conclude that the trial court erred by denying appellant's motion. See Routier, 2008 WL 2486417, at *8 (convicted person not entitled to test “hitherto untested” DNA evidence because she did not show “that the failure to seek DNA testing under the technology available at the time of trial was not her fault”); see also Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (“Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court erroneously determined that appellant failed to show the existence of evidence containing biological material that should be subjected to DNA testing.”); Warren v. State, 126 S.W.3d 336, 338 (Tex. App.-Dallas 2004, no pet.) (affirming trial court's order denying motion for post-conviction DNA testing because appellant failed to meet any of alternative requirements under article 64.01(b)).
Conclusion
 
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
070675F.U05
 
Footnote 1 Appellant's conviction was affirmed on appeal. McConnell v. State, No. 07-97-0116-CR, 1997 WL 375594 (Tex. App.-Amarillo July 8, 1997, pet. ref'd) (not designated for publication).