        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 7, 2013

              WILLIAM T. BRYANT v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Obion County
                 No. CC-12-CR-57       William B. Acree, Jr., Judge


                No. W2013-00233-CCA-R3-CO - Filed June 27, 2013


The petitioner, William T. Bryant, filed a petition to test DNA evidence pursuant to the
Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition,
and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

William T. Bryant, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The petitioner was convicted by an Obion County Circuit Court Jury of three counts
of rape of a child, and he received three, concurrent, fifteen-year sentences. This court
affirmed his convictions and sentences.           State v. William Thomas Bryant, No.
W2007-01340-CCA-R3-CD, 2009 WL 103967, at *1 (Tenn. Crim. App. at Jackson, Jan. 9,
2009). Thereafter, the petitioner pursued post-conviction relief, “alleging his convictions
resulted from an unconstitutional jury and the ineffective assistance of counsel.” William
Bryant v. State, No. W2010-02530-CCA-R3-PC, 2011 WL 2899068, at *1 (Tenn. Crim.
App. at Jackson, July 20, 2011), perm. to appeal denied, (Tenn. 2011). The post-conviction
court denied relief, and on appeal, this court affirmed the decision. Id.
        Subsequently, the petitioner filed a pro se petition, raising additional grounds for post-
conviction relief and requesting testing of DNA evidence pursuant to the Post-Conviction
DNA Analysis Act of 2001. Specifically, the petitioner sought testing of the victims’
“clothing and underwear, blood, fibers, loose hairs, swabs of suspected semen, saliva, and
including head and pubic hairs, vaginal/cervical swabs and smears.” The post-conviction
court entered an order denying the petitioner’s post-conviction claims but giving petitioner
“thirty (30) days from the date of filing this order within which to allege any specific
evidence that would be analyzed for DNA purposes.”

       Afterward, the petitioner filed a pro se motion for post-conviction DNA testing of

               patient’s clothing and underwear, blood, fibers, loose hairs,
               swabs of suspected semen, saliva and including head and pubic
               hairs, vaginal and cervical swabs and smears, kit collected
               chlamydia cx, pcr probe site: UrineHCG/Blood screen,
               VDRL/RPR, collect physical and biological evidence:
               Incl[u]ding hair combings, developmental, presentation, and
               injury photographs, body fluid samples, scraping[ of] finger
               nails, and collection of clothing or other items containing
               potential evidence . . . .

       In response, the State filed an answer, maintaining that

               [t]he crimes occurred on November 24, 2004 but were not
               discovered until January 5, 2005 with the resulting sexual
               assault examinations not taking place until January 7, 2005 with
               one victim and January 11, 2005 with the other victim. While
               there were physical findings consistent with penetration of both
               victims, there was by the time of the examinations no DNA
               evidence due to the passage of forty-four days in the case of one
               victim and 48 days in the case of the other victim.

Accordingly, the State asserted that no evidence existed for DNA testing.

       The post-conviction court filed an order, appointing counsel “to review the transcript
of the evidence to determine whether or not there is any evidence of DNA testing.”
Thereafter, post-conviction counsel filed a notice, asserting “that after investigating the
allegation of the Petitioner[,] that there is no need to file an amended petition to this cause.”
Post-conviction counsel stated that none of the items requested by the petitioner “were
collected as part of the initial investigation or taken into evidence, due to the fact that the

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crime was not discovered until approximately six weeks after it had allegedly occurred.”
Post-conviction counsel stated that the petitioner’s trial counsel had advised him “that there
were absolutely no articles of clothing to be tested due to the delay of time between the
allegations and the time of investigation . . . [and] that there was no DNA evidence to be
tested or presented at trial.” Trial counsel advised “that the delay in the reporting of the
crime prevented the possibility of the presence of DNA on the victims and the articles of
clothing worn on the day of the alleged crime were not available for anyone to test[,]
including the State of Tennessee.” In sum, post-conviction counsel stated that there “is no
DNA evidence available to be tested.”

       The post-conviction court accredited the statements made by post-conviction counsel
and dismissed the petition for post-conviction DNA testing. On appeal, the petitioner
contests this ruling.

                                         II. Analysis

       The Post-Conviction DNA Analysis Act of 2001 provides that

              a person convicted of and sentenced for the commission of first
              degree murder, second degree murder, aggravated rape, rape,
              aggravated sexual battery or rape of a child, the attempted
              commission of any of these offenses, any lesser included offense
              of these offenses, or, at the direction of the trial judge, any other
              offense, may at any time, file a petition requesting the forensic
              DNA analysis of any evidence that is in the possession or
              control of the prosecution, law enforcement, laboratory, or
              court, and that is related to the investigation or prosecution that
              resulted in the judgment of conviction and that may contain
              biological evidence.

Tenn. Code Ann. § 40-30-303. A post-conviction court is obligated to order DNA analysis
when the petitioner has met each of the following four conditions:

                      (1) A reasonable probability exists that the petitioner
              would not have been prosecuted or convicted if exculpatory
              results had been obtained through DNA analysis;

                     (2) The evidence is still in existence and in such a
              condition that DNA analysis may be conducted;



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                     (3) The evidence was never previously subjected to DNA
              analysis or was not subjected to the analysis that is now
              requested which could resolve an issue not resolved by previous
              analysis; and

                     (4) The application for analysis is made for the purpose
              of demonstrating innocence and not to unreasonably delay the
              execution of sentence or administration of justice.

Tenn. Code Ann. § 40-30-304.

        In the instant case, the petitioner’s post-conviction counsel asserted that there was no
evidence available, noting that the crimes were discovered approximately six weeks after
they occurred. The petitioner has not been able to show that any specific evidence exists and
is available for DNA testing. See Eric Tolley v. State, No. W2011-01816-CCA-MR3-PC,
2012 WL 5295178, at *3 (Tenn. Crim. App. at Jackson, Oct. 25, 2012).

                                       III. Conclusion

      In sum, because the petitioner has failed to establish the four factors required for post-
conviction DNA analysis testing, we conclude that the post-conviction court did not err by
dismissing his petition. Accordingly, we affirm the judgment of the post-conviction court.




                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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