                                     IZ 2H-IH
  •>RiGlMt                        PDR NO.
                                            1234-14
                                                                     COURT OF CRIMINAL APPEALS
                                      In The
                                                                          MAR 13 2015
                             Court of Criminal Appeals
                                   Austin/Texas
                                                                     •vbel Acosta, Clerk



Abraham Campos,                                        Appellant Pro Se
Vs.

The State Of Texas/                                    Appellee




                               Appellant's Petition
                             For Discretionary Review




                  Appellan's Petition For Discretionary Review                 FILED IN
                          From The First Court Of Appeals              URT 0F CRIMINAL APPEALS
                            Appeal No. 01-14-000167-CR/                      jyj^p |g 2015
                      On Appeal From The 149th District Court
                            Of Brazoria County/ Texas/                    Abel Acosta, Clerk
                                 Cause No.26,947.




Oral Argument Waive




                                                      Abraham Campos-#721237
                                                      Eastham Unit
                                                      2665 Prison Rd.#l
                                                      Lovelady/Texas 75851
                      Identity Of Parties And Counsel


Trial Judge:                                   Hon.Teri Holder
                                               District Judge
                                               149th Judicial District
                                               Court Of Brazoria County,Texas


Prosecutor(s):                                 David Smith,Assistant
                                               District Attorney
                                               111 E.Locust St.,Ste.408-A
                                               Angleton,Texas 77515-4678


Appellant Attorney:                            Abraham Campos, Pro se
                                               Appellant In Propia Persona
                                               Eastham Unit
                                               2665 Prison Rd.#l
                                               Lovelady,Texas 75851


Appellant:                                     Abraham Campos-#721237
                                               Eastham Unit
                                               2665 Prison Rd.#l
                                               Lovelady,Texas 758851-
                                 TABLE OF CONTENTS


Identity of Parties and Counsel                                              i

Table of Contents                                                           ii

Index of Authorities                                                       iii

Statement Regarding Oral Argument                                            1

Statement of the Case                                                        1

Procedural History of the Case                                             1-2

Questions for Review                                                       2-4

1. Did the First Court of Appeals erroneously determine that Appellant
   was not entitled to Abate the Appeal in regards to appoint of Counsel
   on Appeal ?                                                               2

2. Did the First Court of Appeals erroneously determine that Appellant
   was not entitled to DNA testing on Unidentified Biological Material
   according to the Statutory Provisions of Texas Code of Criminal pro
   cedure Article 64.035,and Newly enacted Senate Bills 122 and 344 ?...     4

Reason for Review                                                          2-4

Reasonable Grounds Exist                                                   9-11

Prayer                                                                      12

Certificate of Service                                                     12

Article II Judicial Notice                                                 j.3

Appendix                                                                   14




                                       ii
                               Index of Authorities


Winter-V-Presiding Judge,118 SW3d 775(Tex.Crim.App.2003)                       2
Blacklock-V-State,235 SW3d 231(Tex.Crim.App.2007)                            5-8
Brady-V-Maryland,373 U.S. 83 (1963)..                                          5
Cook-V-State,940 SW2d 623,627(Tex.Crim.App.l997)                               6.
Esparza-V-State, 282 SW3d 913,922(Tex.Crim.App. 2009)                          8
Ex parte Richardson, 70 SW3d 865,871(Tex.Crim.App.2002)                        6
Gray-V-State, 69 SW3d 835(Tex.App.-Waco2002)                                   3
In re LaSethia G. Whitley 79 SW3d 729(Tex.App.-Corpus Christi 2002)            5
In re Luster, 77 SW3d 331(Tex.App.-Houston[14th]Dist. 2002)                    5
In re Morton, 326 SW3d 634(Tex.Crim.App.2010)         ,                        6
In re Rodriguez, 77 SW3d 461(Tex.:Crim.APP.).....                              3
Kyles-V-Whitley,115 S.Ct. 1555                                                 6
Kutzer-V-State, 75 SW3d 427(Tx.Crim.App.2002)(see generally)                   8
Little-V-State,991 SW2d 864,866(Tex,Crim.App.l999)                             5
McFarland-V-State,928 SW2d 482,511(Tex.Crim.App. 1996)                         5
Neveu-V-Culver, 105 SW3d 641,642(Tex.Crim.App.2003)                            3
Nickerson-V-State, 69 SW3d 661,676(Tex.App.-Waco 2002,pet.ref'd)               5
Padilla-V-State, 2013 Tex.App. LEXIS 7481                                      7
Richardson-V-State,NO.02-ll-00453-CR(tx.App.-Ft.Worth,Aug.31,2011,no pet).     8
Robert Whitfield-V-State,430 SW3d 405( Tex. Crim. App. 2014)                   3
Routier-V-State,273 SW3d 241(Tex.Crim.App.2008)                                6


Statutes and Rules


Rule 68.1 Tex.Rule s App. Proc. (TRAP)                                         1
Rule 66.3(c) T.R.A.P                                                           2
Chapter 64-64.035,Tex.Code Crim.Proc.Ann                                     1-8
Senate Bills 122 and 344                                                       5

U.S.Constitutions 5th,6th, 14th Amendments                                    4




                                         in
                                         PDR No. 1234-14



                                                In The

                                     Court Of Criminal Appeals
                                              Austin,Texas




Abraham Campos,                                                Appellant Pro Se
Vs.

The State Of Texas,                                            Appellee




                                        Appellant's Petition
                                      For Discretionary Review


To The Honorable COURT Of Criminal Appeals:


      COMES NOW         Abraham    Campos,(hereafter     Appellant), in   the above styled and
numbered        cause(Pro    se),and files his           "Petition For Discretionary Review,"
pursuant to Rule 68.1,T.R.A.P.. In support of his petition for review,Appellant
would respectfully show the Court as follows:


                                  Statement Regarding Oral Argument


  Appellant waive oral argument as a Pro se litigant.


                                       Statement Of The Case


      Appellant     was tried by jury in the District Court of Brazoria County,Texas,
149th        Judicial    District     Court    for   the offense of murder and upon his plea
of    not guilty was found guilty of murder as charged in the indictment (Countl
and     2)     by the jury and          his punishment later assessed by the judge at the
term of Forty (40years in the Texas Department Of Criminal Justice-Correctional
Institutional Division (TDCJ-CID). On January 6.2014,Appellant filed a "Request
To Conduct Forensic DNA Testing under Article 64.01(a-1),Texas Code of Criminal
Procedure,"        seeking post-conviction DNA testing of evidence from his criminal
conviction. The trial court denied Appellant's Motion on
post-conviction DNA testing of evidence from his criminal conviction. The
trial       court       denied      appellant's            motion    on February 6,2014,from this denial
Appellant appealed and on July 9,2014, Appellant filed his "Motion To Abate
The Appeal" in order for the trial court to hold a hearing on his status
as    an     indigent           person,and thereafter apoint counsel to represent him in
      his appeal"               in accordance with Tex.Code Crim.Proc.Ann.art64.01(c)(Vernon
Supp.2009) where the Article says a person is "Entitled" to counsel under
that Chapter. Winter-V-Presiding Judge,118 SW3d at 775, [1-3].Furthermore,
it says the court "SHALL" appoint counsel,if the defendant informs the court
he intends to file a motion undr chapter 64,and the Court finds him indigent,
Id.        per    the       literal     reading of the statute,the defendant need not ask even
to be appointed an attorney. Appellant herein met all the criteria for obtain
ing DNA testing of evidence under Chapter 64.01,TC.C.P..
      On September              4,2014,The          First    Court    of Appeals in Houston,Texas issued
its ORDERS              denying       Appellant's           "Motion to Abate the Appeal"     (APPENDIX) No
Motion           for    Rehearing       was        filed,and       also   Denied Appellant's Direct Appeal
on     December          18,2014.       Petition           For Discretionary Review is due on or before
March 20th             ,2015.


                                                    Question For Review


      1.     Did       the    First     Court        of Appeals erroneously determine that Appellant'
was        not entitled           to Abate           the     Appeal in regards to Appellant's indigency
status and thereafter appoint him counsel for the purpose of Appeals ?

                                                     Reason For Review


      Discretionary             Review should be granted under Rule 66.3(c),T.R.A.P.,becasue
the        ORDER/OPINION          denying          Appellant's       "Motion   To Abate The Appeal," is in
conflict           with Winter-V—Presiding                    Judge,118     SW3d at 775[1-3](Tex.Crim.App.
2003),there             the     Court       of Criminal Appeals held: The issue before us is,when
a     defendant          has met            the     test    for appointment of counsel under chapter 64
of     the        Texas      Code      of    Criminal        Procedure,whether the convicting court has
discretion             to     "DENY"    appointment           of counsel. We, hold that, notwithstanding
the        improbability of obtaining                       relief,appointment of counsel is mandatory.
The        Court       further      held          at page 775,Winter-V-Presiding Judge,supra Tex.Code
Crim.Proc.Ann.art.64.01(c))(Vernon                           Supp.2009),that     the article says a person
                                                               2
is     ENTITLED        to counsel under that chapter Id. Furthermore, it says the court
SHALL       appoint     counsel         for     the defendant if the defendant informs the court
he intends ti file a motion under chapter 64,and the court finds him indigent.
Id.     per      the    literalreading          of   the statute,the defendant need not even ask
to     be    appointedjian attorney.             The   court must appoint an attorney if the two
basic       requirements           of    Article     64.01(c)are    met.Defendant here met all the
requirements of Article                  64.01(c),Tex.Code     of    Crim.App.Ann.see   also Neveu-
V-Culver,105           SW3d    641,642(Tex.Crim.App.2003),Defendant Abaraham Campos,filed
a     motion      informing the court that he is indigent by submitting a declaration
of     indigency       under       penalty      of   perjury.See In re Rodriguez, 77 SW3d at 461.
The court         in Gray-V-State,              69   SW3d 835(Tex.App.-Waco2002),held that: with
notice       of appeal        Gray,      filed    an affidavit stating that he is indigent. The
Court       further     stated:         Gray,    may   be   entitle to the appointment of counsel
to assist him in this appeal, however,we are not equipped to make a determinat
ion     about     his status as an indigent person,nor authorized to appoint counsel
if    he    is    entitle       thereto,therefore,,we abate the appeal to the trial court
to    determine        whether        Gray is indigent. Furthermore, in Robert Whitfield,430
SW3d 405(Tex.Crim.App.2014).Stated: "But                    Judge's refusal    to appoint counsel
for    post-conviction             DNA testing is not an immediately appellable order under
Art.64.05,because             it    is a preliminary decision that is appropiately reviewed
as alleged ERROR after                a motion for DNA testing is DENIED."
                                                Question For Review


      2.    Did     the    First       Court      of Appeals erroneously determine that Appellant
            was     not    entitle         to    DNA   testing of Unidentified Biological Material
           according to the Statutory Provisions of Texas Code of Criminal Procedure
           under Article 64.035,and Newly Enacted Senate Bills 122 and 344 ?


                                                 Reason FOR Review


      Discretionary            Review should be granted under Rule 66.3(c),T.R.A.P.,because
the     MEMORANDUM/OPINION denying Appellant's "Request For Forensic DNA Testing"
is     in    conflict          with    Statutory Provisions of the Tex.Code of Criminal Proc.
Chapter          64,and    Articcle          64.035.    This chapter provides the right to the DNA
testing       of     biological         material       that was SECURED in relation to the offense
that is the basis of the challenge material for DNA testing,and the UNCONSTIT-
UTONALLY the Texas Statutes trial court, and Court of Appeals have authoritive-
ly construed,chapter                  64     in all. If one or more of the items that Appellant
is requesting             to be subjected              to this post-convictiion DNA testing meets
any of these criteria,should be order testing by trial court. Article 64.01(b)
criteria,due            to the        State having control of biological material would "have
discrete         and independent probative value,the overall important of the statute
mandates that Appellant should have such testing at the time, or forego testing
later,"       and the           biological        material being requested to DNA testing of this
evidence         that     was    not       subjected    to testing during my trial,was SECURED by
exclusive         possession,custody,and               control of the State of Texas or the United
States       Government         by and through its agents,the police, and the proseccuting
attorney's         office,and          the      Defendant       has no other means of ascertaining the
the disclosure             requested.           "The items requested are not priveleged or exempt
from       discovery."Furthermore,               Article        1,Section 10 of the Texas Constitution
of    the     State       of    Texas,and        the Fifth,Sixth,and Fourteeth Amendments to the
United       States       of America will be violated,to Appellant's irreparable injury
and thus deprived the Defendant of a fair trial,and in the intrest of justice,
such       DNA    testing       should be order by the trial court. Because "IDENTITY" is
and was an issue in this case,and if such results would have provided direct
support       for    the       theory      of an unknown intruder and could have influence the
jury when          combined       with       other evidence containing biological material that


                                                            4
belied       appellant's             guilty       findings    by   the jurors,and the State emphasized
that    testimony              and the State's           argument were key in persuding the jury of
Appellant's          guilt..By            DNA testing of evidence containing biological material
that     I    believe          may      undermine      the    basis for my conviction, As chapter 64
mandates.          Would       proof       Appellant     is not guilty and innocent of this murder
conviction.(ACTUAL                INNOCENCE)."NOT            BLEEDING   AND NO BLOOD ON CLOTHING-MEANS-
EXCULPATING AND FREEING THE INOCENT^BY DNA TESTING."

                                                    ARGUMENT


   During          Appellant's            trial     State rely on this evidence to show Appellant
was the perpetrator of the victim,the knife,knifelike instrument,faucet knob,
and physical              evidence         and NONE of the above mention evidence was subjected
to DNA testing                  if this         evidence     would have been subjected to DNA testing
it would           merely       exclude         appellant,but also IMPEACH STATE'S SOLE-WITNESS AT
TRIAL        WHERE    HE        MAKES      AN IDENTIFICATION THE APPELLANT IS THE PERPETRATOR IN

this     murder       crime          it    is     IRRELEVANT to whether appellant can make identity
an issue with the exculpatory DNA testing. Blacklock-V-SState,235 SW3d 231(Tex.
Crim.App.2007),Holding:"On                        defendant's      petition    for   discretionary     review,
the     Court        of    Criminal Appeals,Hervey J.,Held:"that victim's trial testimony
that     she       knew        defendant        and identified him as         perpetrator was    IRRELEVANT
to whether defendant could make identity an issue with exculpatory DNA testing."
Thereafter,Court                of    Criminal Appeals granted appellant's petition for discr
etionary        review these decisions by the court of appeals."Not only trial court
went     on     to    ABUSE          ITS    DISCRETION in denying appellant's DNA testing by its
discretion of misinterpret or misapply the law correctly.In re Luster,77 SW3d
331(Tex.App.-Houston[14th]2002);In                         re LaSethia G.Whitley,79 SW3d 729(Tex.App.-
Corpus        Christi          2002).      Furthermore,the         denial   of     exculpatory material not
being        disclose is in violation of BRADY-V-Maryland,373 U.S.83, 87 S.Ct.1194,10
L ed2d 215(1963);and by the State Prosecutors withholding such evidence brings
about        the     BRADY       DOCTRINE         evidence     is material only if there is reasonable
probability          that,had           evidence      been     disclose     to the defense,results of the
proceedings           would have been different,overriding concern is with the justice
of the findings of guilt,not with the accussed's ability to prepare for trial,
McFarland-V-State,928 SW2d 482, 511(Tex.Crim.App.l996),overrule on other grounds,
983 SW2d 249,263(Tex.Crim.App.1996). Information                              is   "MATERIAL"   when   "there
is reasonable probability that,had the evidence been disclosed to the defense,
the     results           of    the       proceedings would have been different." Little-V-State,
991     SW2d    864,866(Tex.Crim.App.1999);Nickerson-V-STATE, 69/' SW3d 661,676(Tex.
App.-Waco2002,pet.ref'd)citing:                    Little:   "A    Brady violation   is   one of due
process,       and     a    three-part          test is used to evaluate whether a violation has
occurred:(1)the            State     failed to disclose evidence,regardless of prosecutor's
GOOD or        BAD FAITH;(2)the             withheld     evidence is favorable to the defendant;
(3)the evidence             is material,i.e.,there            is   reasonable probability that had
the evidence been disclosed,the outcome of the trial would have been diffrent.
Ex     parte    Richardson,70            SW3d    865,871(Tex.Crim.App.2002);Little,991      SW2d at
866.     The    question       is     "Not whether the defendant would more likely than not
have     recieved a diffrent verdict with the evidence,but whether in its absence
he     recieved a fair trial,understood as a trial resulting in a verdict worthy
of confidence.'" Kyle-V-Whitley, 514 U.S.419,115 S.Ct.1555,131 L.Ed2d 490(1995);
See Cook-V-State, 940 SW2d 623,627(Tex.Crim.App.1997)(Confidence in the("OUTCOME)
And as mentioned,the State's GOOD or BAD FAITH in withholding favorable evidence
is irrelevant.



OPINION at 7-10:



Where the"'DNA TESTING ON REMAINING ITEMS"

     States: "even if the clothes and pipe had DNA belonging to a third person,that
Appellant would not established by preponderance of the evidence that Appellant
was not guilty."

Court    of    Appeals        ruling       is    in   contradiction to the privious ruling in.In
re Morton,326 SW3d 634(Tex.Crim.App.2010). "That the DNA testing of the BANDANA
would     be   exculpatory          in    the event that the testing of the BANDANA contains
Christine's       blood,a       third party's DNA (due to blood,sweat,or hair),and none
of Appellate's DNA." As in the instant case Appellant contends that DNA testing
of     the    bloody       clothes,knife,knifelike           instrument   could obtain exculpatory
results,Appellant            alleges       that testing of these items could demonstrate that
the    material      that      was       undisclosed    by   State Prosecutor contains the third
party's       DNA,and       none    of    Appellant's DNA, such a result would have provided
direct-support         for the theory of an unknown intruder and could have influence
the    jury when combined                with other evidence that misrepresented Appellant's
guilt    at    his     trial,and         Appellant     believes may undermine the basis for his
conviction.
Therefore,Appellant       has     met Chapter 64 Provisions by qualifying for forensic
DNAtesting because the evidence is in the possession of the Alvin Police Department
and has been there since the date of the offense. Texas Code of Criminal Procedure
64.01(b),and the plain language of the Chapter 64 in all.
Opinion at 7-8:
  State Argues That:"Appellant does not articulate how the absence of his own
DNA on Miranda's clothing would be exculpatory."
  The absence of appellant's own DNA of clothing from Miranda's clothing would
be exculpatory because the appellant had presented alibi and there was a lack
of physical evidence LINKING HIM           to the incident,and police officers prosecu
tors pressured eyewitness into making false identification,failed to produce the
EXCULPATORY EVIDENCE, and failed to properly investigate (EMILIO) as the perpetr
ator is sufficient to present also a claim that they acted in BAD FAITH.
  The appellant claims these acts were made by the malicious prosecution             in
order to have a conviction to this murder crime.That had the physical evidence
been DNA tested would have proven the perpetrator of this murder and negating
all physical evidence to DNA testing of the items listed in the State's exhibit
of the items with BIOLOGICAL MATERIAL AS in.Routier-V-State,273 SW3d 241(Tx.Cr.
App.2008), Court of Criminal Appeals: "It is appropiate first todetermine which       of
the NINE ITEMS would qualify for post-conviction testing under these threshold
criteria should be included in the collective calculus for determining whether
the Appellant    would not have been convicted. "Appellant invokes Article 64.01
(b)(l)(B)'s no-fault         provision     to argue generally that SHE was not at fault
for failing to obtain DNA testing simply because all of the biological evidence
were in the State's control."

   Appellant    asserts      in   the    instant   case is not and cannot be faulted for
HIS   failure   to    seek    DNA testing at the time of trial,because the State has
exclusive    possession      of   all material,and Appellantcan never be at fault for
failing     to seek   DNA     testing at the time of trial.For this reason,Appellant
argues,He    should   be allowed to obtain the post-conviction DNA testing under
Article 64.01(b)l)(B), were by definition, in the State's possession at the time of
Appellant's trial.Therefore,Appellant can invoke the no-fault provision of sub-
sections(b)(l(A)(i)(ii).Given the volume of blood at the sc ene could have det
ermine the DONOR of the DNA of the perpetrator and exclude appellant of this off-
enseof murder,and in the intrest of justice*requires DNA testing. In Padilla-V-
State, 2013 Tex. App.LEXIS 7481, States: "Basic requirements for post-conviction DNA
testing are that BIOLOGICAL EVIDENCE EXIST, that evidence is in condition that it can
be tested, that the idenity of the perpetrator is or was an issue, and that this is the
type of case in which exculpatory DNA results would make a difference."
      Appellant          asserts his           case    meets    the provisions of Chapter 64, and to
demonstrate             the    exculpatory material exist appellant would               show this Court
the     following         evidence          existence      because   the   "STATE'S MOTION TO DENY DNA
TESTING
n
        AND
         "
            APPOINTMENT
            ——————^^_—_
                        OF COUNSEL" ON page 3,Section VI, States:
 Finally,to ensure the preservation of the evidence in this case,the State
 urges the Court to allow the law enforcement agency to retain possession
 of this evidence until the COurt determines whether DNA testing shouldbe
required.To transfer this evidence to the possession of the COurt would hinder
 preservation and add chain custody problems. The attached exhibit contains
 a list of property retained by the police.The District Clerk's records reflect
 that the Clerk's Office is in possession of the knife admitted at trial."
      DNA testing of evidence appellant is requesting to be tested will demonstrate
 a different outcome and show 51% chance appellant would not have been convicted
 if     the      jurors would            have been shown the evidence in the POSSESSION of the
 State      and     would          determine the IDENTITY of the DONOR of the blood that none

 of    appellant's DNA and                  there would show the third party who was the perpet
 rator or the State's sole-witness because of his inconsistencies of the state

 ments       in whole          of the murder crime he witness,and showing that exculpatory
 DNA results would establish that appellant is actual innocent of this offense
 of murder.Because the multiple inconsistencies statements made by the State's
 sole-witness are both exculpatory and material,and shows that the CREDIBILITY
 of     the witness was an issue,and the trial court had enough evidence in front
 of    it     to    determine          by    preponderance      of the evvicence that favorable DNA
 results         would        have    prevented       appellant's    conviction.Because identity was
 and    is       still        an     issue    in the present case,and during appellant's defense
 trial      was     IDENTITY,it             cannot    be   concluded   identity was not an issue. In
 Esparza-V-State,282 SW3d 913(Tex.Crim.App.2009),the court found that defendant
had established               that    he would not have been convicted if DNA testing yielded
exculpatory         results          dispite      eye-witness    identification    of   him as the one
who    committed          the      aggravated        sexual assault the eye-witness identification
of the defendant was of "NO CONSEQUENCE" in determiningthat issue."Quoting:
Balcklock-V-State,235 SW3d 231(Tex.Crim.App.2007),the Court of Criminal Appeals
REVERSE the decision of Court of Appeals(which denied the requested DNA testingO
despite       the       fact the victim knew the defendant.Moreover,the tenor of Article
64.02       is     to    provide       an    appellant      with post-conviction access to existing
biological         samples         for      the   purpose of DNA testig.Richardson-V-State,NO.02-
ll-00453-CR(Tx.App.-Ft.Worth,Aug.31,2011,no pet.);Kutzer-V-State,75 SW3d 427 (
Tx.Cr.App.2002)(SEE GENERALLY).The House Criminal Jurisprudence Committee later
amended the SenateJurisprudence Committee's version of Article 64.035, to authorized
ALL PHYSICAL EVIDENCE
                                                            8
with    biological         material    to be tested and be sent to State and federal data
system.
     Both    House    and     Legislature      as stated by the supporters of Chapter 64,to
give    convicted         people    full    access   to the   Court's and provide a check on
individual        court's     decisions."      Thereafter,    Senate   Bills   122 and 344 were
violated along with Chapter 64 in all.,by the trial court and Court of Appeals
in not        following      the Statutory        Provisions. Furthermore,State's Prosecutor
also violated          Article      64.02,by    not delivering     the biological material or
explain in writing why it cannot do so. In fact,itwould appear that the purpose
of requiring         to    the State to deliver the evidence to determine the presence
of     biological      material. The failure of the State to comply with the STatutes
effectively        prevented       Appellant from being able to establish that the knife,
knifelike         instrument,clothing        seize,pipe   smeared with blood,and knob faucet
contained biological material. The statutes also does not place any particular
burden       of    proof    on     the convicted person to show that the existence contain
biological material.,and it is a greater than 51% chance that had the exculpa
tory results          been obtain          from the above mentioned evidence, Appellant would
not have been convicted .However,if testing on the biological material resulted
in     unknown DNA         being    present,there     is certainly a greater than 51% chance
Appellant would not have been convicted.
     The     Trial Court and Court of Appeals erred in failing to order DNA testing
of     the    biological      material in this case. This Court should vacate the trial
court's and Court of Appeals order and remand for requested evidence.
  Finally,the Court of Criminal Appeals recently stated that it granted relief
by     post-conviction        writ    of habeas corpus to convicted persons who have used
favorable forensic DNA test results to prove actual innocence.


                                       REASONABLE GROUND EXIST



OPINION AT 3 pg.:

   Officer T.Earl testified that Appellant was not bleeding and had no scratcpp
   marks on him or blood splotches on his clothing. "How does one avoid blood
sj3lot:ches on his clothing?" 51% of State's evidence could disprove,contrary
to hearsay testimony of three persons.The pipe had blood,faucet knob also
with blood,because appellant did not put the knife in the sink,when he was
running away from the scene. As stated by Emilio Miranda testimony.
" NOT BLEEDING AND NO BLOOD ON CLOTHING-MEANS-EXCULPATING AND FREEING THE INNOC
ENT JlY^DNA TESTING*"
     The Appeals Court only considered the testimony of State's witness contrary
to other testimony of Appellant's mother.
     Appellant has prove bt} the preponderance of the evidence that                   the last
of    the testing      of the pipe, clothing seized,faucet knob, and tennis shoes and
ect...The State has in its possession.This will meet the Appellant's requirement
that a third party's DNA was likewise present.
  It is not known that the pipe was in the possession of Rodriguez and started
something with Emilio.(Fight).[See attach Affidavit Second statement by Emilio).
  The      knife    was     found in the kitchen sink and not on Appellant when he was
arrested     by Officer          T.Earl,and     "No    blood   splotches on his clothing 51%.
  Miranda was likewise intoxicated as all the others,if not very intoxicated,
to    intoxicated      to   have seen         appellant    with a knife,running away from the
scene      means who       put    the knife in the sink to hide the eviddence.Appellant
within     his     right    frame of mind would have kept the knife in his possession,
but it was not like that at all.

     The   Trial     Court and Appeals Court have relied on testimony of Miranda who
was     also intoxicated to DENY DNA testing that could pin point prints or ect.,
like skin tissue or cells for that reson.New testing would convict or exculpate
appellant by preponderance of the evidence.
     It would      prove    Miranda,for       the State was an intoxicated liar,or a very
intoxicated        liar,who      placed   the knife in the sink himself to cover-up for
himself     unanswered      evidence.Miranda          testified   that   he was the only person
in and out of the kitchen the night of the murder.
  Denial; of DNA testing would violate Due Course of Law of the Texas Constitu
tion and Equal Protestion thereof.
 STATE'S EVIDENCE PROVES ONLY PRESENTS;

(1) fingerprint from a beer can that match appellant;
(2) Appellant's mother contradicted Miranda's testimony;
(3) ..state's Sole-witness fail to show how the knife was found in the sink
      or who placed the knife in the sink;
(4) Miranda either put the knife in the sink and told police where it was,
      if the knife was the instrument use.

 STATE'S SOLE-WITNESS:

(1) Miranda heard Rodriguez scream;




                                                      10
(2) He looked out a kitchen window and saw appellant holding a knife to Rodrig
      uez;

(3) Miranda saw appellant running away from the house;
(4) Beer can with appellant's thumb print,show only present;
(5) Probative force of evidence do not tend to show guilt by present:
     Thereafter,Miranda         testified           that "He looked out a kitchen window to see
Appellant grabbing Rodriguez while holding a knife,and                      NO BLOOD SPLOTCHES
ON HIS CLOTHING.

     Deputy    C.Frame        testified      that     he collected items from the scene of the
stabbing,which if tested would show biological material exist for DNA testing,
and No        identifiable      prints were detected on the knifelike instrument,knife.
     Deputy     Frame    was able to lift a thumb-print from a beer can he collected
at    the     scene     and    testified at trial that the print match appellant's thumb
-print.       Appellant, asserts that this print would be useless because appellant
was there prior to the incident,and that he was NOT present before any of                        the
confrontation         Emilio     and Rodriguez had prior to appellant's arrival to visit
his mother.

     Emilio Miranda's inconsitence statement made to the Alvin Police Detectives
prove     he was very           intoxicated         and lied several times to the detectives,on
the night of the crime Miranda statement at the scene was "ORIGINAL STATEMENT:
FROM THE ALVIN POLICE REPORT PAGE^.4,"RAMIREZ STATED HE HEARD THE VICTIM CALL
WHEN HE CAME OUT INTO THE YARD HE INITIALLY DID NOT' SEE ANYTHING,BUT."
     This     is   the first at the scene statement by the State's'sole-witness that
shows     why the material             evidence should be DNA tested for the Appellant,and
further       more/through       out    the     investigation     Miranda    change his version of
what he actually witness,His inconsistence statements made prove that Appellant
has     REASONABLE       GROUNDS       for    DNA    testing   of the BIOLOGICAL MATERIAL IN THE
STATE'S       POSSESSION,along with the above mention testimonies the Appeals Court
has stated in there denial of appellant's DNA testing.
     According to the Prrovisions of 11.071,11.072,and 11.073,Certainty Testing of
the Procedure Related to Certain Scientific Evidence.




                                                       11
                                            PRAYER


 WHEREFORE,Appellant         Abraham Campos,prays that the Court of Criminal Appeals
                j

grant    this "Petition       For Discretionary Review" reverse the decision of the
Court of       Appeals,and    remabnd     this case for a hearing on Appellant's status
as an indigent person and thereafter,appoint him and attorney for this appeal
and     that    the   case   be   set for submission in the Court of Criminal Appeals,
that,after submission,and          any    other   relief    Appellant is entitle too. Also
in the intrest of justice requiring DNA testing.


                                                               /Respectfully submi
                                                                             submitted,

                                                             'Abraham Campos-#'/2122
                                                           /S/Abraham Campos-#'Z21237
                                                              Eastham Unit
                                                              2665 Prison Rd.#l
                                                              Lovelady,Texas 75851
                                                                    Appellant Pro-se


                                    CERTIFICATE OF SERVICE



  This is to certify that a true and correct copy of the foregoing "Appellant's
Petition       For    Discfretionary    Review" brief was forwarded by U.S.Mail,postage
prepaid,       To:Jeri   Yenne,District     Attorney of      Brazoria County, Texas at 111
E.Locust St.,Suite 408-A,Angleton,Texas 77515,and To The State Prosecuting
Attorney's Office,at         P.O.Box     12405,Capitol     Station,Austin,Texas    78711, On
this^^ day of March           2015.


                                                               Eastaham Unit
                                                               2665 Prison Rd.#l
                                                               Lovelady,Texas 75851
                                                                     Appellant Pro-se




                                               12
                                  ARTICLE II JUDICIAL NOTICE



Rule 201 Judical Notice of Adjudicated Facts:

(a)   Scope     of Rule:     This    rule governs only judicial notice of adjudicative

      facts;

(b)   Kinds     of Facts: A judicially notice fact must be one subject to reason

      able dispute in that it is either(l) generally know within the territorial

(c)   When     Discretionary:       A Court may take judicial notice,whether requested

      or not;


(e)   Opportunity      To Be      Heard: A party is entitled upon timely request to an

       opportunity      to   be     as   to   the propriety of taking judicial notice and

       the     tenor   of the matter noticed. In the absence       of prior notification

      the request may be made after judicial notice has been taken.




                                                13
¥




    Order issued September 4, 2014




                                         In The

                                  Court of &ptteate
                                         For The


                              tftrat JStetrtct of Wtxa*

                                  NO. 01-14-00167-CR



                           ABRAHAM CAMPOS, Appellant
                                           V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 149th District Court
                              Brazoria County, Texas
                             Trial Court Case No. 26947-3




                                        ORDER


          Appellant, Abraham Campos, appealed from the trial court's order denying

    his motion for post-conviction forensic DNA testing. See Tex. Code Crim. Proc.

    Ann. art. 64.01(a-l) (West Supp. 2014).        On July 9, 2014, appellant filed a

    "Motion to Abate the Appeal." In his motion, appellant requests that we abate this
                                                                                      r
                                                                                          *




appeal and order the trial court to hold a hearing on his "status as an indigent

person, and thereafter appoint counsel to represent him in this appeal.'VWe deny

the motion.


                                   Background


      On January 6, 2014, appellant filed a "Request to Conduct Forensic

Evidence DNA Testing Under Article 64.01 (a-1), Texas Code of Criminal

Procedure," seeking post-conviction DNA testing of evidence from his criminal

conviction. In the affidavit accompanying his motion, appellant stated that he is

indigent and requested that an attorney "be appointed during these proceedings" to

represent him.

      The trial court denied appellant's motion on February 6, 2014. In its order,

the trial court found that appellant failed to establish by a preponderance of the

evidence that appellant would not have been convicted if additional DNA testing

was conducted. The trial court also found that appellant "failed to meet his burden

to show reasonable grounds for appointment of counsel as required under Article

64.01(c) of the Code of Criminal Procedure" and denied appellant's request for

appointment of counsel.
      On February 24, 2014, appellant filed a notice of appeal and an affidavit of

indigency, seeking appointed counsel to represent him on appeal. The trial court

denied the request on February 25, 2014.

      On July 9, 2014, appellant filed his motion to abate, requesting that we abate

this case and order the trial court to hold a hearing on his indigence, find him

indigent, and appoint counsel to represent him in this appeal.

                                     Analysis


      There is no constitutional right to appointed counsel in a proceeding under

Chapter 64 of the Texas Code of Criminal Procedure. See Hughes v. State, 135

S.W.3d 926, 927 (Tex. App.—Dallas 2004, pet. ref d).

      Nevertheless, there is a statutory right to appointed counsel in a Chapter 64

proceeding. See Tex. Code Crim. Proc. Ann. art. 64.01(c); Ex parte Gutierrez,

337 S.W.3d 883, 889 (Tex. Crim. App. 2011); Gutierrez v. State, 307 S.W.3d 318,

321, 322 (Tex. Crim. App. 2010).      "A convicted person is entitled to counsel

during a proceeding under" Chapter 64 "if the person informs the court that the

person wishes to submit a motion under this chapter, the court finds reasonable

grounds for a motion to be filed, and the court determines that the person is

indigent." Tex. Code Crim. Proc. Ann. art. 64.01(c).
      Prior to 2003, the statutory right to appointed counsel was absolute for any

indigent person who either filed or expressed a desire to file a motion for forensic

DNA testing under Chapter 64. See Ex parte Gutierrez, 337 S.W.3d at 889 &

n.10; Gutierrez, 307 S.W.3d at 322 & n.26; Gray v. State, 69 S.W.3d 835, 837

(Tex. App.—Waco 2002, no pet.). The legislature, however, amended the statute

in 2003 to restrict the right to appointed counsel in Chapter 64 proceedings. See

Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003 Tex. Gen. Laws 16, 16; Ex

parte Gutierrez, 337 S.W.3d at 889; Gutierrez, 307 S.W.3d at 322.           Thus, in

Chapter 64 proceedings filed after the legislative amendment, "[a]n indigent

convicted person intending to file a motion for post-conviction DNA testing . . .

has a limited [statutory] right to appointed counsel," which is "conditioned on the

trial judge's finding 'that reasonable grounds exist for the filing of a motion.'" Ex

parte Gutierrez, 337 S.W.3d at 889 & n.10 (quoting Gutierrez, 307 S.W.3d at

321); see Gutierrez, 307 S.W.3d at 321, 322 (holding that entitlement to appointed

counsel is not absolute and that appointment of counsel is dependent, in part, on

trial judge's discretion). Statutory entitlement to appointed counsel for a person

"intending to file a motion for post-conviction DNA testing" is now conditioned on

three criteria: (1) "the convicted person must inform the trial judge that he or she

wants to submit a motion;" (2) "the trial judge must find that 'reasonable grounds'

exist for the filing of a motion;" and (3) "the trial judge must find that the
    >

r




        convicted person is indigent." Gutierrez, 307 S.W.3d at 321; see Tex. Code Crim.

        Proc. Ann. art. 64.01(c).      Thus, a convicted person who fails to show that

        reasonable grounds exist for the filing of a Chapter 64 motion is not entitled to

        appointed counsel. See Ex parte Gutierrez, 337 S.W.3d at 890-95; Harris v. State,

        No. 01-10-00171-CR, 2011 WL 662955, at *l-2 (Tex. App.—Houston [1st Dist]

        Feb. 17, 2011, pet. refd).


              An appeal from the denial of a Chapter 64 motion is governed by article

        64.05. See Tex. Code Crim. Proc. Ann. art. 64.05 ("An appeal under this chapter

        is to a court of appeals . . . ."). Such an appeal is therefore "a proceeding under"

        Chapter 64, and the conditions for appointment of counsel on appeal are the same

        as the conditions for appointment of counsel in the trial court. See id. art. 64.01(c).

        We therefore hold that, when a convicted person files a Chapter 64 motion and the

        trial court finds that the person failed to demonstrate reasonable grounds for filing

        the motion, the person is not entitled to appointed counsel to assist with any

        "proceeding under" Chapter 64, including an appeal. See Tex. Code Crim. Proc.

        Ann. arts. 64.01(c), 64.05; Ex parte Gutierrez, 337 S.W.3d at 889; Gutierrez, 307

        S.W.3dat321,322.


              Here, the trial court found that appellant failed to show reasonable grounds

        for filing a motion for DNA testing.        See Tex. Code Crim. Proc. Ann. art.
                                             JUDGMENT


                                          Court of appeals
                                     Jftot jEBtetrtct of tEexaa
                                          NO. 01 -14-00167-CR


                                    ABRAHAM CAMPOS, Appellant

                                           V.


                                   THE STATE OF TEXAS, Appellee

           Appeal from the 149th District Court of Brazoria County. (Tr. Ct. No. 26,947-3).

       This case is an appeal from the final judgmentsigned by the trial court on February 6, 2014. After
submitting the case on the appellate record and the arguments properly raised by the parties, the Court
holds that the trial court's judgment contains no reversible error. Accordingly, the Court affirms the trial
court' s j udgment.


       The Court orders that this decision be certified below for observance.


Judgment rendered December 18, 2014.


Panel consists of Chief Justice Radack and Justices Bland and Huddle. Opinion delivered by Chief
Justice Radack.
Opinion issued December 18, 2014.




                                    In The


                             Court of &opeate
                                    For The


                         jftot 2Biatrtct of Cexa*

                            NO. 01-14-00167-CR



                      ABRAHAM CAMPOS, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 149th District Court
                         Brazoria County, Texas
                        Trial Court Case No. 26,947-3



                        MEMORANDUM OPINION


      A jury convicted appellant, Abraham Campos, of murder in 1992, and the

trial court, finding one enhancement paragraph true, assessed punishment at 40

years' confinement. The Fourteenth Court of Appeals affirmed his conviction.
See Campos v. State, 946 S.W.2d 414 (Tex. App.—Houston [14th Dist.] 1997, no

pet.). In September 2007, appellant filed a motion for DNA testing in the case,

which was denied.    This Court affirmed the order denying DNA testing.         See

Campos v. State, No. 01-08-00032-CR, 2008 WL 5102463, at * 3 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref d) (mem. op., not designated for publication). A

second motion for DNA testing was apparently never ruled on. See id. In January

2014, appellant filed a third motion for DNA testing, which the trial court again

denied, finding that appellant "has made insufficient allegations to establish by a

preponderance of the evidence that the defendant would not have been convicted if

additional DNA testing was conducted." Appellant now brings this, his second

appeal from the denial of DNA testing, alleging that the trial court erred in (1)

determining that appellant failed to meet the requirements of Tex. Code Crim.

Proc. Ann. art.     64.03 (Vernon Supp. 2014); and (2) denying appellant an

evidentiary hearing on his motion.


      We affirm.


                                 BACKGROUND



      The background facts, as previously detailed by this Court, are as follows:


      In late August 1992, Martin Rodriguez was stabbed to death outside
      the house he shared with appellant's mother and Rodriguez's uncle,
      Emilio Miranda. Over the course of several late night hours before the
      stabbing, appellant, Rodriguez, and Miranda spent time drinking beer
      together outside that house. All had consumed many beers. At some
      point, Miranda left the group and went inside the house.

      Miranda testified at trial that he heard Rodriguez screaming and that
      he looked out a kitchen window to see appellant grabbing Rodriguez
      while holding a knife. When he ran outside, Miranda saw blood on
      Rodriguez's body and saw appellant running away from the house.

      At-trial, appellant's mother denied any knowledge of anything that
      happened before or after the stabbing at her house, including whether
      appellant was present. She contradicted some of Miranda's statements
      and denied seeing Rodriguez's body on the ground, did not know
      whether he was alive or dead, and just ran to the neighbor's house to
      ask for help. Appellant's mother also denied speaking to anyone about
      the stabbing except police detectives. Yet, three other witnesses
      testified at trial that appellant's mother told them that her son had
      killed Rodriguez.

      Deputy C. Frame testified that he collected items from the scene of
      the stabbing. Frame found a knife or knife-like instrument inside the
      house in the kitchen sink. The instrument was "very wet and saturated
      with water." No identifiable prints were detected on this knife-like
      instrument. Moreover, no evidence at the trial established that the
      instrument was used to murder Rodriguez. Deputy Frame was able to
      lift fingerprints from a beer can he collected at the scene and testified
      at trial that the prints matched appellant's fingerprints.

      Officer T. Earl of the Alvin Police Department encountered appellant
      at 2:16 a.m. on the night of the offense. Appellant was six-tenths to
      seven-tenths of a mile away from his mother's house. He was at a pay
      phone and appeared to be."very intoxicated." When Officer Earl
      approached him, appellant identified himself as "Juan Carlos." Officer
Aj
     Earl arrested appellant for public intoxication and transported him to
     the Alvin Police Department. At the police station, appellant denied
     having a local address or any relatives in the area and claimed that he
     lived in Mexico City, Mexico. He was not bleeding and had no scratch -
     marks on him or blood splotches on his clothing.-

Campos,-2008 WL 5102463, at *1 (footnotes omitted).
                  DENIAL OF MOTION FOR DNA TESTING

      Under Texas Code of Criminal Procedure Chapter 64, a convicted person

may move for forensic DNA testing of evidence containing biological

material. Tex. Code Crim. Proc. art. 64.01(a-l). The convicting court may order

forensic DNA testing only if the statutory preconditions of Chapter 64 are met.

Bell v. State,90 S.W.3d 301, 306 (Tex. Crim. App. 2002). "Basic requirements

[for post-conviction DNA testing] are that biological evidence exists, that evidence

is in a condition that it can be tested, that the identity of the perpetrator is or was an

issue, and that this is the type of case in which exculpatory DNA results would

make a difference." Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App.

2011); see Tex. Code Crim. Proc. arts. 64.01, 64.03. A convicted person is not

entitled to DNA testing when the testing would "merely muddy the waters."

Gutierrez, 337 S.W.3d at 901. In his first issue on appeal, appellant contends the

trial court erred in denying his motion for DNA testing.

Standard ofReview

      We review a trial court's decision to deny a motion for post-conviction DNA

testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 85, 59

(Tex. Crim. App. 2002). Under this standard, we afford almost total deference to a

trial court's determination of issues of historical fact and its application of the law

to fact issues that turn on determinations of witnesses' credibility and demeanor,
but we review de novo the trial court's application of the law to fact issues that do

not turn on determinations of witnesses' credibility and demeanor. Routier v.

State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008). However, where, as here, the

trial record and affidavit of appellant are the only sources of information

supporting the motion, the trial court is in no better position than we are to make its

decision, and we review the issues de novo. Smith v. State, 165 S.W.3d 361, 363

(Tex. Crim. App. 2005) (explaining that because trial court did not hold live

hearing on request for DNA testing, reviewing court would conduct de novo

review as trial court was in no better position to determine issues).

Appellant's Motion to Conduct DNA testing

      In his third motion for DNA testing, appellant requested DNA testing of a

knife or knifelike instrument, clothes of the State's witness, Emilio Miranda, other

clothing seized as evidence, and a pipe found smeared with blood.            Appellant

claims that "there are newer testing techniques available which can provide results

which are more and reliable tests[,]" and that "[t]here are additional tests available,,

which can explore different [sic] loci, and thereby definitely exclude Defendant

Abraham Campos." Neither appellant's motion, nor his affidavit attached thereto,

alleges how the items he wished to have tested would establish by a preponderance

of the evidence that a reasonable probability exists that he would not have been

prosecuted or convicted in exculpatory results had been obtained through DNA
testing. See Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref d) (setting for standard for obtaining DNA testing).

Law ofthe Case Regarding Testing on Knife

      The State contends that this Court's previous opinion creates law of the case

preventing appellant from re-litigating the issues addressed in our previous

opinion.    We agree.     In State v. Swearingen, the Court of Criminal Appeals

considered whether the law-of-the-case doctrine applied to a defendant's fourth

motion for DNA testing. 424 S.W.3d 32, 36-38 (Tex. Crim. App. 2014).             The

court noted as follows:


      The "law of the case" doctrine provides that an appellate court's
      resolution of questions of law in a previous appeal are binding in
      subsequent appeals concerning the same issue. In other words, when
      the facts and legal issues are virtually identical, they should be
      controlled by an appellate court's previous resolution. This is a court-
      made doctrine designed to promote judicial consistency and
      efficiency.

Id. at 36 (footnote omitted).   The court then refused to reconsider its previous

holding, stating:

      Since we have previously held that, as a matter of law, the appellee
      had not met his burden of proof as to the existence of biological
      material, and because the legislature's amendment did not alter this
      result ... the trial court erred under the law of the case doctrine when
      it disregarded our previous holding.

Mat 38.'"
      In our previous case, this Court held that appellant was not entitled to DNA

testing on the knife or knife-like instrument because "subjecting it to testing would

not exonerate appellant[,]" and "[e]ven if the result of DNA testing had been

available at his trial, it is not reasonably probable that appellant would have had a

51% chance of avoiding conviction." 2008 WL 5102463, at *3. In this case,

appellant's third motion for DNA testing reurges the same issues regarding the

knife that we addressed in our previous opinion. Thus, the trial court did not err in

rejecting appellant's request for DNA testing on the knife.

DNA testing on Remaining Items

      Our previous opinion did not address the trial court's denial of DNA testing

on the clothing or pipe in possession of the police because appellant had not, at that

point, obtained a ruling on that request. Id. at *3. In order for a defendant to be

entitled to post-conviction DNA testing, he must show by a preponderance of the

evidence (that is, a greater that 50% likelihood) that he would not have been

convicted had any exculpatory results generated by the proposed testing been

available at the time of trial.   Holberg v. State, 425 S.W.3d 282, 286-87 (Tex.

Crim. App. 2014).       "Exculpatory results" mean only results excluding the

convicted person as the donor of the material. Id.

      Appellant does not articulate how the absence of his own DNA on

Miranda's clothing would be exculpatory. And, the presence of the victim's DNA
on Miranda's clothes would only confirm what Miranda had testified to, i.e., that

he was present the night Rodriguez was murdered. Appellant does not state whose

DNA was likely to be found on the remaining clothes or the bloody pipe, or faucet

handle as it is also described. Presumably, the blood on the pipe came from the

only person injured at the scene, i.e., the victim. And, the faucet handle or pipe

was never alleged to be the murder weapon.1 Assuming the remaining clothes

sought to be tested belonged to appellant, the victim's blood on them would be

inculpatory, not exculpatory.

      Even if the clothes and pipe had DNA belonging to a third person, given the

other evidence in the case, it would not establish by a preponderance of the

evidence that appellant was not guilty. See Swearingen v. State, 303 S.W.3d 728,

736 (Tex. Crim. App. 2010) ("Texas courts have consistently held that a movant

does not satisfy his burden under Article 64.03 if the record contains other

substantial evidence of guilt independent of that for which the movant seeks DNA

testing."); Priblev. State, 245S.W.3d 466, 470 (Tex. Crim. App. 2008) (affirming

a trial court's denial of postconviction DNA testing because "even if the evidence

was retested and determined to contain another person's DNA in addition to [the

defendant's] DNA, it would not establish by [a] preponderance of the evidence that

[the defendant] would not have been convicted if the jury had heard that DNA

      The inference raised at trial was that the murderer got the victim's blood on the
      faucet when he cleaned his hands.

                                            8
from a third-party was present."); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim.

App. 2002) ("The presence of another person's DNA at the crime scene will not,

without more, constitute affirmative evidence of appellant's innocence."); see

also Baylor v. State, No. 02-10-00561-CR, 2011 WL 4008026, at *3 (Tex.

App.—Fort Worth Sept. 8, 2011, no pet.) (mem. op., not designated for

publication) (relying on evidence presented at the defendant's trial and recited in

an earlier appellate opinion to affirm a trial court's denial of his later motion for

DNA testing).

      As we set forth in our previous opinion, there was other evidence of

appellant's guilt.

      Miranda testified that when he heard Rodriguez scream, he looked out
      a kitchen window and saw appellant holding a knife to Rodriguez. In
      addition, when he ran outside, Miranda saw appellant running away
      from the house. Though appellant's mother contradicted Miranda,
      other evidence, including the beer can with appellant's fingerprints,
      shows that he was present at the house on the night of the stabbing.
      When Officer Frame arrested appellant, he was less than a mile away
      from his mother's house, where the murder took place. Three
      individuals testified that appellant's mother told them that her son had
      killed Rodriguez.

Campos, 2008 WL 5102463, at *2. Appellant gave a false name when arrested,

denied living in the area, and claimed to be from Mexico City. Under these

circumstances, we conclude, as we similarly concluded in appellant's previous

DNA appeal, "subjecting [the clothes and pipe] to testing would not exonerate

appellant, given the probative force of the evidence tending to show that appellant
                                         9
                                                                                        *


                                                                                            i




was guilty and the lack of any link between [the items] and Rodriguez's murder."

Id. at *3. "Even if the results of DNA testing had been available at his trial, it is

not reasonably probably that appellant would have had a 51% chance of avoiding

conviction." Id.


      Accordingly, we overrule appellant's first issue on appeal.

                             DENIAL OF HEARING


      In his second issue on appeal, appellant contends the trial court erred in

denying his motion for DNA testing without first conducting an evidentiary

hearing. However, "Article 64.03 does not require any evidentiary hearing before

the trial judge decides whether a convicted person is entitled to DNA testing."

Gutierrez, 337 S.W.3d at 893 (citing Rivera, 89 S.W.3d at 58-59).

      Accordingly, we overrule appellant's second issue on appeal.

                                 CONCLUSION


      We affirm the trial court's judgment.




                                                Sherry Radack
 (                                              Chief Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.


Do not publish. Tex. R. App. P. 47.2(b).



                                           10
                        LIST     OF THE       ITEMS       IN THE POSSESSION OF             THE STATE




                                                   CITY OF ALVIN                                         POLICE DEPARTMENT
                                                   1500 S. Gordon • Alvin, Texas 77511     (281) 388-4370 • FAX (281) 388-4380
                                                              December 23, 2002

To:     Brazoria County D/A Office
        D/A Investigator GaryEpps

From:   Terry L. Earl
         Alvin Police Department
         Criminal Investigations Division
         Property / Evidence Manager

Ref:     AlvinP.D. Case# 9212928-Homicide

Details: Property stillin evidence per present records:

Tag*     11577 Brownpaperbag containing:
         1-       White and Light Brown striped short sleeve shirt.
         1-       Pair of Tan pants
         ** These Items came into evidence at the Alvin Police Department located at 305 W. Sealy on 10/29/1992,and assignedto
         shelf location "O" in the evidence room. On 04/18/1995 the items were checkedout of evidence and taken to the Brazoria
         County D/A's office. On05/04/1995 the bag was returned with the above listed contents and assigned to shelf location "N"
         in the evidence room. On 07/01/1997 the bag and contents were transferred to the New AlvinPoliceDepartment, Facility
         located at 1500 S. Gordon, placed into the evidencevault and assigned to shelflocation"J-l". **
Tag#, ••M578 » Brown paper bag containing:
         1-       Pair of Blue Jeans
         1-     Orange, Black and White piece of cloth
         ** These Items came into evidenceat the AlvinPolice Department locatedat 305 W. Sealyon 10/29/1992 and assigned to
         shelf location "O" in the evidence room. On 04/18/1995 these itemswerechecked out of evidence and takento the Brazoria
         County D/A's office. On05/04/1995 the bag was returned with the above listed contents and assigned to shelf location "N"
         in the evidence room. On07/01/1997 the bagandcontents weretransferred to theNew Alvin Police Department Facility
         located at 1500 S. Gordon, placed into the evidence vaultand assigned to shelflocation "J-l". **
Tag#     11579 Brown paperbag containing:
         1-       Pair of two-tone gray tennis shoes
         1-       Pair of white socks with red striped tops
         ** These Items came into evidenceat the AlvinPolice Department locatedat 305 W. Sealyon 10/29/1992 and assignedto
         shelf location "O" in the evidence room. On 04/18/1995 these items werechecked out of evidence and taken to the Brazoria
         County D/A's Office. On 05/04/1995 the bag was returned with the above listed contents and assigned toshelf location "N"
         in the evidence room. On 07/01/1997 thebag andcontents weretransferred to theNew Alvin Police Department Facility
         located at 1500S. Gordon, placed intothe evidence vault and assignedto shelflocation "J-l". **
Tag#     11847
         1-   VHS Video tape
         ** This Item came into evidence at theAlvin Police Department located at 305 W. Sealy on 02/25/1993 andassigned to shelf
         location " 1-1". On 04/18/1995 this itemwaschecked out of evidence and taken to the Brazoria County D/A's Office. On
         05/04/1995 this item was returned and assigned back to shelflocation "I-l", On 07/01/1997 this item was transferred to the
         New Alvin Police Department Facility located at 1500 S. Gordon; placed into the evidence vault and assigned toshelf
         location"A-5".
         1-      "'A" tape
         **This                                       the AlvinPoliceDepartment located at 1500 S. Gordon **




         Terry L. Earl / Criminal Investigations


                                                                EXHIBIT "A"
                                            EXHIBIT      B"




                                             AFFIDAVIT

                                        STATEMENT OF FACTS


STATE OF TEXAS         §
COUNTY OF HOUSTON §

   My name is Abraham Campos/TDCJ#721237/ I am of sound mind/capable of making
this affidavit in support of my "Request For Forensic DNA Testing/" and
personally acquianted under the penalty of perjury that the facts are true
to the best of my knowledge.

                       STATEMENTS MADE BY THE STATE'S SOLE-WITNESS
                                       FROM THE POLICE REPORT


Lead     Investigating       Officer     R.L.Hubbard:    (Offense/Incident   Report Page 4 )
First    Statement      :    Dated   8/21/92:     "Ramirez stated he heard the victim call
him. When he came out into the yard he initially did not see anything/but
then saw the victim on his back near Ramirez stated he tried to give assistance
to the victim/but then went for help."

Second    Statement         investigating     Officer CPL.Selleck:(Supplement Report page 3)
" Emilio at first said that he heard Martin calling "UNCLE" in Spanish and
he (Emilio) went outside but did not see anything at first. He had said that
Martin had been outside drinking beer and had wanted HIM to come outside
and drink      with    HIM     but HE refused because Martin was to MEAN when HE drank
beer."
ThThird Statement: " After further questioning/Emilio said that He did not
know who was responsible for the HOMICIDE but that it may have been a BLACK
MALE who was seeking retaliation for reporting a disturbance that had occurred
about a WEEK prior."

    These    are    inconsistent^' statement made by the state's sole-witness Emilio
Ramirez or Emilio Miranda his name was also change during the investigation.


    1/    Abraham    Campos/TDCJ#721237/being presently incarcerated at the Eastham
Unit in Lovelady/Texas; County of Houston/Texas/declare under penalty of perjury
that the foregoing is true and correct:

    Executed this ^J/j day of March ; 2015.




             Civil Practice And Remedies Code/Title 6/Chapter 132/V.T.C.A:

A   written    Unsworn       Declaration made as provided by this Chapter By an Inmate
in the      Texas     Department       of Criminal Justice-CID may be used in lieu of an
Oath Required to be taken before a Notary Public.


                                                1 of 1
                          "EXHIBIT C


                 DEFENDANT'S       EXHIBIT   NO.         8


   PHOTO TAKEN THE NIGHT OF THIS CRIME BY ARRESTING OFFICER

Terry L. Earl of the Alvin Police Department August 21/1992.

'no scratches/not bleeding and no blood slotches on clothing'


    "ORIGINAL ON FILE WITH THE DISTRICT ATTORNEYS OFFICE"




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       DEFENDANT WAS ARRESTED FOR PUBLIC INTOXICATION"


                        AUGUST 2i;i992




                                                                                        387
                                           EXHIBIT"D



 STATE    OF   TEXAS   §
                             ss:                AFFIDAVIT OF      PORFIRIO    SALl
 COUNTY OF BRAZORIA §


    Affiant Porfirio Salas, being first duly sworn on his oath, deposes and says as
 follows:


     "My name is Porfirio Salas. I am over the age of 21, of sound mind, capable of
making this affidavit, have personal knowledge of the facts related in this affidavit.
 I am making this affidavit with regard to the criminal case of 'State of Texas vs.
Abraham Campos, cause number 26,947, in the 23rd Judicial District of Brazoria County,
Texas.      The case was tried during the early 1990s.       The defendant in the that
criminal case was Abraham Campos, prison number 721237, who is imprisoned at the
Eastham Unit of the Texas prison system, near Lovelady, Texas 75851.

         I am the common-law husband of Guadalupe Gonzales, and we have lived for many
years at 1254 Old Galveston Rd., Alvin, Texas 77511.           On or about August 20, 1992 an
incident occurred near our home atl254 Old Galveston Road which involved my step-son,
Abraham Campos, Emilio Miranda, and Martin Rodriguez. I wish to state that during
the months that Emilio Miranda and Martin Rodriguez rented rooms at our home, I never
heard that Emilio was the uncle of Martin, nor did anyone tell me that prior to August
20, 1992. In my opinion, from what I knew of both men, Emilio was not related in any
way to Martin Rodreiguez.      In fact, prior to August 20, 1992 Emilio Miranda and Martin
Rodriguez would argue heatedly between themselves; and in my opinion there existed
bitterness an contention between the two men. Both men often drank heavily
     No one called me to testify lor the defense in this case.          I would have testified
for the defense had I been called to do so.   In my opinion Abraham Campos is not the
type of individual who would do what he was charged with doing in this case.




                                                 PORFIRIO      SALAS,   Affiant
                                                 1254 Old Galveston Road
                                                  Alvin, Texas  77511



    Subscribed and sworn to before me, the undersigned Notary Public, on this
the) *7 day of /f f) r) (.    ,2012.


                                                                  ft loftUc
My Commission Expires:                                   \     NOTARY PUBLIC

                                                                  ^ ^ • **n**-m*+*j±j±

                                                                          MARIA P BARRERA
                                                                        My Commission Expires
                                                                             May 7. 2014
                                                 EXHIBIT       E




 THE STATE OF TEXAS

 COUNTY OF BRAZORIA
                                               ss:         AFFIDAVIT OF GILDARDO          CAMPOS




      Affiant Gildardo Campos, being first duly sworn, states on his oath as
 follows:                                                  .       *-   •


       "My name is Gildardo Campos. I am over the age of 21, have personal
 knowledge of the facts stated in this 'affidavit' and I am competent to testify
 to such facts.         This 'affidavit' concerns Abraham Campos, prison number
 721237, who is imprisoned at the Eastham Unit of the Texas prison system, near
 Lovelady, Texas...        This 'affiadvit' also concerns Abraham Campos.' convicted in
 criminal cause number 26,947, in the 23rd Judicial District Court of Brazoria
 County, Texas during..April,., 19g5:%r ,i;J^m £he .'father' of Abraham Campos.
       The trial testimony in cause number 26,947 mentioned above Show that
 state witness Emilio Miranda testified before the jury that he had a
 conversation with me at the courthouse during the Early Fall of 1992.
 However, what Emilio Miranda testified to, that he had a conversation with me,
 is false. I have never, at any time, had a1conversation whatsoever with Emilio
 Miranda. His assertion that I did have a conversation with him is false, and I
would have testified that it was false had I been called to testify for the
defense at the said trial.




                                                                                j%WV<P,
                                                           GILDARDO CAMPOS/^ affiant

                                                                            (address)



                                                                   7k-A Rl MI//)^77^J/
                                                                            (address)

     Subscribed and sworn to on this the Ql\ day of ApfcU, , 2012.
       4&&*&
       /£
                     8LANCA £. BRAVO
       *"   £\ Notary Public, State of (exes
                  My Commission Expires
       '%LW           January 02, 2013

                                                               i6il^r\C^          f' Tb r3A/-o
My Commission Expires:                                                  NOTARY PUBLIC




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