                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-111-CR


DAMIEN DEMARQUIS HUCKABY                                               APPELLANT

                                            V.

THE STATE OF TEXAS                                                           STATE

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            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      In two points, Appellant Damien Demarquis Huckaby appeals the trial court’s

denial of his post-conviction motion for forensic DNA testing. W e will affirm.




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           See Tex. R. App. P. 47.4.
                           II. P ROCEDURAL B ACKGROUND

      On July 13, 2001, a jury found Huckaby guilty of aggravated kidnapping and

assessed his punishment at life imprisonment. 2 The trial court sentenced him

accordingly. Huckaby appealed to this court, and we affirmed his conviction on May

29, 2003. See Huckaby v. State, No. 02-01-00301-CR, 2003 W L 21235588, at *12

(Tex. App.—Fort W orth May 29, 2003, pet. ref’d) (not designated for publication).

      In October of 2008, Huckaby filed with the trial court a motion for forensic DNA

testing that is the subject of this appeal. Huckaby requested that two pieces of fabric

from a couch in Sergeant Parker’s apartment and two pieces of a sweater found in

Huckaby’s trunk be retested. Previous DNA testing of these items revealed that

DNA found on the couch and the sweater matched that of Huckaby and Sergeant

Parker.   After the State requested and received notice from the Southwestern

Institute of Forensic Sciences (SW IFS) in Dallas that the evidence at issue still

existed and was available for testing, the State filed a response to Huckaby’s motion,

urging the trial court to deny it. W ithout holding a hearing, the trial court denied

Huckaby’s motion on March 26, 2009. Huckaby perfected this appeal.




      2
        Evidence at Huckaby’s trial showed that he and several other individuals
attacked Sergeant Elihue Parker at Sergeant Parker’s apartment, tied him up with
green ribbon, put him in the trunk of Huckaby’s car, and drove him to East Texas.
Sergeant Parker’s tied-up body was found in a river in East Texas; autopsy results
showed that he had died of a gunshot wound to the chest.

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                        III. DNA T ESTING UNDER C HAPTER 64

      A convicted person who moves for post-conviction DNA testing bears the

burden of satisfying the requirements of chapter 64 of the code of criminal

procedure. See Wilson v. State, 185 S.W .3d 481, 484 (Tex. Crim. App. 2006).

Under chapter 64, a convicted person may request post-conviction DNA testing of

evidence that was previously subjected to DNA testing if that previously-tested

evidence “can be subjected to testing with newer testing techniques that provide a

reasonable likelihood of results that are more accurate and probative than the results

of the previous test.” Tex. Code Crim. Proc. Ann. art. 64.01(b)(2) (Vernon Supp.

2009).

      If the evidence meets the criteria of article 64.01, then a court must order DNA

testing, but only if the appellant also satisfies other statutory predicates, including a

showing by a preponderance of the evidence that he would not have been convicted

if exculpatory results had been obtained through DNA testing. See id.

art. 64.03(a)(2)(A) (Vernon Supp. 2009); Leal v. State, 303 S.W .3d 292, 295 (Tex.

Crim. App. 2009). An appellant must also show that identity was or is at issue in the

case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B); Wilson, 185 S.W .3d at 484.

      W hen, as here, the trial court denies a motion for post-conviction DNA testing

without conducting a hearing, we review the ruling de novo. Smith v. State, 165

S.W .3d 361, 363 (Tex. Crim. App. 2005).




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               IV. H EARING ON M OTION FOR DNA T ESTING N OT R EQUIRED

         Huckaby argues in his first point that the trial court erred by denying an

evidentiary hearing on his motion for DNA testing because contested fact issues

exist regarding the manner in which the evidence at issue was discovered and

delivered to and picked up from SW IFS.

         But “[n]othing in Article 64.03 requires a hearing of any sort concerning the

trial court’s determination of whether a defendant is entitled to DNA testing.” Rivera

v. State, 89 S.W .3d 55, 58–59 (Tex. Crim. App. 2002); see also Jones v. State, 161

S.W .3d 685, 689 (Tex. App.—Fort W orth 2005, pet. ref’d) (noting that trial court is

not required to hold hearing when ruling on motion for DNA testing, although court

shall hold hearing when examining the results of testing). 3 Consequently, we hold

that the trial court did not err by not conducting a hearing on Huckaby’s motion for

forensic DNA testing before denying the motion, and we overrule Huckaby’s first

point.

               V. D ENIAL OF M OTION FOR DNA T ESTING NOT E RRONEOUS

         Huckaby argues in his second point that the trial court erred by denying his

motion for DNA testing. He argues that he has established that identity was at issue

in his case because he claims that no physical evidence connected him to the

kidnapping and because he “vigorously denied that he participated in the

         3
         Although Huckaby urges us to alter this requirement so that hearings are
required before a trial court may deny a request for forensic DNA testing, such an
alteration of the statute is a matter for the legislature, not for this court.

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kidnapping.” He also argues that he has established by a preponderance of the

evidence that he would not have been convicted if exculpatory results had been

obtained through DNA testing of the sweater and couch samples.

      Article 64.03(a)(2)(A) requires a convicted person to establish by a

preponderance of the evidence that he would not have been convicted if exculpatory

results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art.

64.03(a)(2)(A). The court of criminal appeals has interpreted this phrase to mean

a “greater than 50% chance that he would not have been convicted if DNA testing

provided exculpatory results.” Prible v. State, 245 S.W .3d 466, 470 (Tex. Crim.

App.), cert. denied, 129 S. Ct. 54 (2008). “‘[I]f DNA testing would not determine the

identity of the person who committed the offense or would not exculpate the

accused, then the requirement of Art. 64.03(a)(2)(A) has not been met.’” Leal, 303

S.W .3d at 296 (quoting Prible, 245 S.W .3d at 470). “[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.” Swearingen v. State,

303 S.W .3d 728, 736 (Tex. Crim. App. 2010); see Wilson, 185 S.W .3d at 485–86.

      Here, in determining whether Huckaby has satisfied article 64.03(a)(2)(A), the

question is whether Huckaby has established a “greater than 50% chance” that he

would not have been convicted of kidnapping if results of further DNA testing of the

sweater found in the trunk of his car and of the couch samples taken from Sergeant

Parker’s apartment showed that DNA on those items did not belong to him. Prible,


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245 S.W .3d at 470. Huckaby has failed to meet that burden given the inculpatory

evidence admitted at trial. See id. (stating that even if DNA testing showed the

presence of another person’s DNA, defendant failed to prove by a preponderance

of the evidence that he would not have been convicted given the evidence presented

at trial); Hood v. State, 158 S.W .3d 480, 483 (Tex. Crim. App.) (holding that, given

other inculpatory evidence at trial, “[e]ven if DNA tests revealed blood of another

individual at the crime scene . . . that evidence would at most establish that Hood

acted with someone else in committing the crime”), cert. denied, 545 U.S. 1146

(2005).

      At trial, one of Huckaby’s co-conspirators testified about the details of the

kidnapping, including how Huckaby had made suggestions about how they should

go about kidnapping and murdering Sergeant Parker.          Other evidence at trial

demonstrated that Huckaby was seen arguing with Sergeant Parker a few days

before the kidnapping; during the argument, Huckaby told Sergeant Parker, “Playing

all of these kiddie games and stuff with each other, sneaking around. If we were

back in the ‘hood, I would have done capped your ass.” Acquaintances of Huckaby’s

testified that they had seen him and his co-conspirators on the day of Sergeant

Parker’s kidnapping and that they were in Huckaby’s car. A search of the trunk of

Huckaby’s car revealed not just the sweater Huckaby seeks new DNA testing on but

also a piece of green ribbon similar to the one used to tie up Sergeant Parker and




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a piece of weather stripping that tested positive for blood matching Sergeant

Parker’s DNA profile.

      Moreover, because the evidence at trial demonstrated that several other

individuals committed the kidnapping with Huckaby, evidence that Huckaby was not

the donor of the DNA on the sweater and couch samples would not exculpate

Huckaby. See Prible, 245 S.W .3d at 470; Hood, 158 S.W .3d at 481–83; Jacobs v.

State, 115 S.W .3d 108, 113 (Tex. App.—Texarkana 2003, pet. ref’d) (holding DNA

testing of hair in tractor truck would “‘merely muddy the waters’ by demonstrating

that a third party had, at some point in time . . . been inside . . . the tractor truck”);

see also Bell v. State, 90 S.W .3d 301, 306 (Tex. Crim. App. 2002) (considering

appellant’s due process claim and reasoning that, without more, the presence of

another person’s DNA at the crime scene will not constitute affirmative evidence of

appellant’s innocence). In other words, if the sweater and couch samples were

retested and the results showed DNA not belonging to Huckaby, this would only

establish that someone else, such as one of the other co-conspirators, had been in

contact with the sweater and with Sergeant Parker’s couch; it would not, however,

establish Huckaby’s innocence by a preponderance of the evidence. See Prible,

245 S.W .3d at 470; see also Willis v. State, No. 02-06-00091-CR, 2008 W L

2780666, at *3 (Tex. App.—Fort W orth July 17, 2008, pet. ref’d) (mem. op., not

designated for publication) (op. on remand) (holding that DNA results excluding

appellant as donor “would not establish his innocence because the donor of the


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material is not necessarily the person—or “lone attacker”—ultimately responsible for

[the murder]”).

      W e hold that Huckaby has failed to show by a preponderance of the evidence

that he would not have been convicted if further DNA testing of the sweater and

couch samples at issue showed that they did not contain DNA matching his and

Sergeant Parker’s or contained additional persons’ DNA. See Tex. Code Crim.

Proc. Ann. art. 64.03(a)(2)(A). Consequently, we hold that the trial court did not err

by denying Huckaby’s post-conviction motion for DNA testing, and we overrule

Huckaby’s second point.

                                  VI. C ONCLUSION

      Having overruled Huckaby’s two points, we affirm the trial court’s order.



                                                     SUE W ALKER
                                                     JUSTICE

PANEL: GARDNER, W ALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 27, 2010




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