                                        NO. 12-12-00371-CR

                             IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

BRANDON JAYVORIS MAYFIELD,                            §           APPEAL FROM THE 188TH
APPELLANT

V.                                                    §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §          GREGG COUNTY, TEXAS

                                         MEMORANDUM OPINION
        Brandon J. Mayfield appeals from an order denying his postconviction motion for forensic
testing of the evidence. We affirm.


                                                  BACKGROUND
        Appellant was convicted of murder in Gregg County, Texas, for the 2006 slaying of Pedro
Santos. This court affirmed his conviction on direct appeal, and the court of criminal appeals refused
Appellant’s petition for discretionary review.1
        As we noted in our opinion, the accounts of the events preceding Santos’s death diverged.
According to Santos’s wife, Appellant and another man came to their home late one evening. She
stated one of the men had a gun and that he beat Santos with the gun. He stopped beating him when
the gun discharged and he was struck by the bullet.2 Appellant conceded that he was shot during the
encounter, but he denied that he was the person who hit Santos with the gun. Instead, he testified that

        1
          Mayfield v. State, No. 12-07-00266-CR, 2008 Tex. App. LEXIS 9349 (Tex. App.–Tyler Dec. 17, 2008, pet.
ref'd) (mem. op., not designated for publication).
        2
            Id. 2008 Tex. App. LEXIS 9349, at *1-3.
he was merely nearby as another individual and Santos fought over the gun and that he was shot when
he attempted to stop the fight and recover his gun. Santos died from injuries sustained during the
beating.
       In his postconviction motion for forensic testing, Appellant asserted that there was blood
present on a belt, a shoe, and a sock, and that the blood on these items was not identified. Appellant
postulated that the victim’s blood would have been on his clothing if he had struck the victim with the
pistol. He contended that the blood on his clothing was his own and that the results of forensic
testing would prove that fact and, therefore, demonstrate that he did not beat Santos. Finally, he
argues that fingerprint testing on the barrel of the gun would “definitively prove” that he was not “in
control of the weapon at any time,” and the gunshot residue testing would show that a “co-defendant
fired the weapon, not [Appellant].”
       The trial court overruled Appellant’s motion for forensic testing. This appeal followed.


                                      FORENSIC DNA TESTING
       In his sole issue, Appellant argues that the trial court erred in overruling his postconviction
motion for DNA testing.
Applicable Law and Standard of Review
       Texas law provides that a court may order forensic DNA testing after a person has been found
guilty in certain circumstances. Specifically, the evidence must exist, the evidence must be testable
and subject to a chain of custody, identity must have been an issue in the case, the convicted person
must establish by a preponderance of the evidence that he “would not have been convicted if
exculpatory results had been obtained through DNA testing,” and the request must not have been
made to delay either the execution of the sentence or the administration of justice. See TEX. CODE
CRIM PROC. ANN. art. 64.03(a) (West Supp. 2012). When reviewing a trial court’s Chapter 64
rulings, we give almost total deference to the court's findings of historical fact and application of law
to fact issues that turn on witness credibility and demeanor, but we consider de novo legal issues or
fact issues that do not turn on the credibility or demeanor of witnesses. See Routier v. State, 273
S.W.3d 241, 246 (Tex. Crim. App. 2008).
Analysis
       Appellant argues that identity was at issue in this matter and that the DNA testing would show

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that he was not guilty. The identity requirement in Chapter 64 does not simply mean that a convicted
person denies that he committed a crime. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App.
2008). Instead, the question is whether the issue of identity can be resolved by forensic testing of
DNA evidence. Id. To be entitled to the testing, the convicted person must demonstrate that the
DNA testing would determine the identity of the perpetrator or would exculpate him. Id.
       The lab report that was entered into evidence at trial records that there is “[p]ossible blood” on
a belt, a left shoe, and one sock. Appellant asserts that if he had beaten Santos, his fingerprints would
be on the barrel of the gun and Santos’s blood would be on Appellant’s clothing. There are several
problems with this assertion. First, the trial court found that the gun has been destroyed. Appellant
does not challenge that finding on appeal. Second, there is no testimony or evidence that supports
the conclusion that Santos’s blood would necessarily be on Appellant’s clothing.
       The issue is even more complicated because some witnesses testified that Appellant was
wearing a white shirt that had blood on it, but that shirt was not retained. Appellant testified that he
was wearing an athletic jersey, but the jersey did not have blood on it nor did it have a hole from the
bullet that struck Appellant in the torso and, presumably, passed through whatever shirt he was
wearing. Furthermore, Appellant testified that the other individual was striking Santos with the
pistol when he, Appellant, tried to stop the assault. He was asked if he “stayed in [another area away
from the melee] still, or are you in the middle of it?” He said, “Yes, sir, I tried to break it up. Once
I reached for them, that’s when the gun went off.” Moments later, he was asked, “[Y]ou reached to
break up the fight, and the gun went off; is that correct?” He responded, “Yes, sir.” With respect to
blood, Appellant was asked if he saw Pedro Santos bleeding. He said, “No, sir. The only one [sic]
that was bleeding was me.”
       There was testimony at trial that there were quantities of blood in various parts of the dwelling
including the bathroom, the walls of the common area, and the front porch. And there was testimony
that the man who was shot, Appellant, was the man who beat Santos to death. But there was no
evidence either at trial or with respect to Appellant’s motion to suggest that the trial court erred when
it concluded that Appellant failed to show that identity was at issue or that DNA testing could resolve
an identity issue. Appellant admitted to being present for the assault. He admitted that he brought
the gun to what he thought was a drug deal. And he admitted being close to the fight between the
other man and Santos. His testimony establishes that he was guilty of the offense as a party. See

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TEX. PENAL CODE ANN. § 7.02(b) (West 2011) (person responsible, in certain circumstances, for
conduct of another if a conspirator commits a felony in the attempt to carry out a conspiracy to
commit another felony).
         The jury has passed on the question of Appellant’s responsibility in this case. But even if the
issue of who struck Santos with the gun were important, Appellant has not shown that a forensic test
of available evidence could distinguish between a person who is shot while attempting to stop a
beating–Appellant’s version–and a person who is shot while beating a man to death. Appellant’s
own testimony places him in the immediate vicinity of the bleeding man. Whether his clothing does
or does not have Santos’s blood on it does not resolve any question as to the identity of the
perpetrator. Therefore, the trial court properly overruled Appellant’s motion because he failed to
show that DNA testing would determine the identity of the person who committed the offense or
would exculpate him. See Prible, 245 S.W.3d at 470.
         Finally, Appellant briefly raises two other subissues. He asserts that the trial court should
have ordered gunshot residue testing. The statute provides for forensic testing of biological material.
See TEX. CODE CRIM PROC. ANN. art. 64.01(a)(1) (West Supp. 2012). The statute does not provide
an avenue for testing of evidence that is not biological. See Allen v. State, No. 05-03-00918-CR,
2004 Tex. App. LEXIS 6772, at *4 (Tex. App.–Dallas July 27, 2004, pet. ref’d) (mem. op., not
designated for publication) (rejecting claim where convicted person did not request testing of
biological material). Finally, Appellant asserts that he is entitled to testing because he requested
testing prior to trial and because that testing was not done. The pretrial motion filed in this case was
a customary discovery request to inspect the physical evidence. It was not denied, so far as we can
tell, and the statutory right to postconviction forensic testing is not dependent on a pretrial motion.
We overrule Appellant’s sole issue.


                                                     DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
                                                                    BRIAN HOYLE
                                                                      Justice
Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                (DO NOT PUBLISH)
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                                     COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                             JUDGMENT

                                             JULY 31, 2013


                                         NO. 12-12-00371-CR


                              BRANDON JAYVORIS MAYFIELD,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                            Appeal from the 188th Judicial District Court
                           of Gregg County, Texas. (Tr.Ct.No. 35,046-A)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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