                                 NO. 12-09-00069-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

DANNY RENE SMITH,                             §      APPEAL FROM THE 402ND
APPELLANT

V                                             §      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                      §      WOOD COUNTY, TEXAS
________________________________________________________                       _______________
                                   MEMORANDUM OPINION
          Danny Rene Smith appeals the trial court’s denial of his motion for additional forensic
testing. In one issue, Appellant argues that the trial court’s refusal to order additional forensic
testing was erroneous and that the trial court failed to make appropriate findings of fact. We
affirm.


                                          BACKGROUND
          In 1994, Appellant was charged by indictment for murder. The indictment contained
multiple enhancement paragraphs. Appellant pleaded “guilty” to the lesser included offense of
involuntary manslaughter and, further, pleaded “true” to the enhancement allegations. The trial
court found Appellant “guilty” of involuntary manslaughter and sentenced him to imprisonment
for forty-five years.
          On August 7, 2008, Appellant filed a motion “pursuant to Texas Code of Criminal
Procedure, [article] 64,” by which he requested that the trial court order additional forensic
testing of the murder weapon. Specifically, Appellant argued that he did not have possession of
the .22 caliber pistol in question and that, had the pistol been examined for fingerprints, his
fingerprints would not have been found thereon. In response to Appellant’s motion, the trial
court appointed counsel to assist Appellant in demonstrating to the court grounds for forensic
testing of the pistol for fingerprints. Appellant’s counsel subsequently informed the trial court
by letter that Appellant could not meet the preconditions under chapter 64 and the absence of his
fingerprints from the weapon that killed the victim would not be exculpatory considering (1) the
law of parties and (2) that Appellant was present at the time of the killing and participated in the
struggle that resulted in the pistol discharging the round that struck the victim.
        Following its review of the letter from Appellant’s counsel, the trial court denied
Appellant’s motion. This appeal followed.


            REQUEST FOR ADDITIONAL FINGERPRINT TESTING PURSUANT TO ARTICLE 64
        In his sole issue, Appellant argues that the trial court erred in denying his motion for
additional forensic testing and failed to make appropriate findings of fact.1 We review a trial
court's denial of a motion for postconviction DNA testing under a bifurcated process. Rivera v.
State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85 (Tex.
Crim. App. 1997)); see also Green v. State, 100 S.W.3d 344, 344 (Tex. App.–San Antonio 2002,
pet. ref’d). We afford almost total deference both to the trial court’s determination of historical
fact and to its application of law to fact issues that turn on credibility and demeanor. Rivera, 89
S.W.3d at 59; Green, 100 S.W.3d at 344. But we review de novo all other application of law to
fact issues. Rivera, 89 S.W.3d at 59; Green, 100 S.W.3d at 344. This de novo review usually
includes the ultimate issue in postconviction DNA testing cases, i.e., whether “a reasonable
probability exists that exculpatory DNA would prove ... innocence.” Watkins v. State, 155
S.W.3d 631, 633 (Tex. App.–Texarkana 2005, no pet.).
Adequacy of Trial Court’s Findings of Fact
        As part of his sole issue, Appellant argues that the trial court made no findings of fact in
support of its order denying his motion. We recently considered a similar issue in Snow v. State,
No. 12-08-00438-CR, 2009 WL 2767318 (Tex. App.–Tyler Sept. 2, 2009, no pet. h.) (mem. op.,
not designated for publication). In Snow, we relied on the court of criminal appeals’ opinion in
Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App.2003), in which the court stated as follows:

        1
           On appeal, Appellant cites Texas Code of Criminal Procedure, article 11.07(d) and (e) as authority for his
motion. While Appellant, in his motion, made passing reference to a House Bill that he claimed supported his
request, his motion was nonetheless made pursuant to Texas Code of Criminal Procedure, article 64. This appeal
does not arise from a postconviction writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon
Supp. 2008).


                                                         2
                            The trial court’s findings, when considered with the record in this case, are
                  sufficient for the purposes of our review. The trial court found that the appellant failed to
                  meet the requirements of 64.03(a)(2)A) and 64.03(a)(2)B). This may not be adequate in
                  every case, and this Court would appreciate more detailed findings from the trial court to
                  facilitate our review. But, in appellant's case, the record supports the trial court’s
                  conclusion that the appellant did not prove by a preponderance of the evidence that a
                  reasonable probability existed that he would not have been prosecuted or convicted if the
                  DNA test results were exculpatory.


Snow, 2009 WL 2767318, at *2 (citing Skinner, 122 S.W.3d at 813); see also Darnell v. State,
No. 02-03-00173-CR, 2004 WL 1088755, at *3 (Tex. App.–Fort Worth May 13, 2004, pet. ref'd)
(mem. op., not designated for publication) (trial court's order stating only that the appellant
“failed to meet the requirements of article 64.03” was sufficient to comply with article 64).
         In the case at hand, the trial court’s order states, “After reviewing the file and the
November 6, 2008, letter from Jeff Fletcher, the Court fails to find any grounds for further
testing.” The letter to which the court makes reference states that Appellant could not meet the
preconditions under chapter 64 and the absence of his fingerprints from the weapon that killed
the victim would not be exculpatory considering (1) the law of parties and (2) that Appellant was
present at the time of the killing and participated in the struggle that resulted in the pistol
discharging the round that struck the victim. Based on our review of the trial court’s order, the
November 6, 2008 letter to which the order makes reference, and the record as a whole, we hold
that the trial court's order was sufficient to comply with article 64. See Snow, 2009 WL
2767318, at *2; Darnell, 2004 WL 2088755 at *3; see also Skinner, 122 S.W.3d at 813.
Denial of Appellant’s Motion2
         To obtain postconviction DNA testing, the convicted person must establish by a
preponderance of the evidence that a reasonable probability exists that he or she would not have
been prosecuted or convicted if “exculpatory results had been obtained through DNA testing.”
Id.; see also TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i), (2)(A) (Vernon Supp. 2008).
This requirement is not a two part test. “The convicted person is not required to show both that a
reasonable probability exists that the person would not have been prosecuted and that the person

         2
           Article 64 does not cover fingerprint evidence. See Skinner, 122 S.W.3d at 812 n.4. Nonetheless, the
possibility of additional testing for fingerprint evidence has been considered under article 64. See id. at 812.
Appellant now seeks to base his request for additional forensic testing in language from article 11.07 and suggests
that the proper analysis concerning the trial court’s refusal to order such testing be conducted pursuant to article 64.
Because Appellant’s motion was filed pursuant to article 64, we shall conduct our analysis accordingly. In so doing,
however, we do not decide whether a petition for writ of habeas corpus filed on such grounds should incorporate
analysis traditionally applied to motions filed pursuant to article 64.


                                                           3
would not have been convicted.” Watkins, 155 S.W.3d at 633–34. Exculpatory evidence is that
“tending to establish a criminal defendant's innocence.” Id. at 634.
       The statutory requirement that testing results be exculpatory is not met if the DNA
evidence would “merely muddy the waters.” Id. Instead, the evidence must tend to prove the
defendant’s innocence.     Rivera, 89 S.W.3d at 59.        Stated differently, DNA testing must
conclusively outweigh all other evidence of the convicted person’s guilt. See Watkins, 155
S.W.3d at 634.
       The issue in the case at hand is similar to another issue considered by the court of
criminal appeals in Skinner. In Skinner, the court concluded that the appellant’s request to
compare fingerprint evidence would not provide a reasonable probability of his innocence, but
instead would only demonstrate the presence of a third party. See id. at 812. Thus, the court
held that the new information would not undermine the trial court’s finding that the appellant
failed to establish that he would not have been convicted if exculpatory results had been obtained
through DNA testing. Id.
       Appellant argues that additional forensic testing would establish that there were
fingerprints of a third party on the murder weapon. Assuming arguendo that fingerprint testing
can be considered under article 64, see id., Appellant still bore the burden to prove that he would
not have been convicted given the evidence presented at trial. Here, even if a third party’s
fingerprints were found on the pistol, such evidence would not be exculpatory. Rather, it would
only indicate the presence of a third party. See id.; see also Hood v. State, 148 S.W.3d 480,
481–83 (Tex. Crim. App. 2005) (holding that even if DNA testing showed presence of another
person at crime scene, defendant failed to establish by preponderance of the evidence that he
would have been acquitted on that basis given that defendant’s bloody fingerprints were found at
the scene and showed his involvement in the crime; DNA evidence would at most establish that
defendant acted with someone else in committing the crime). Considering Appellant’s assertion
in his motion that the pistol at issue discharged and killed the victim as a result of Appellant’s
struggling over the firearm with a third party, we conclude that Appellant has not met his burden
of proof under article 64.03(a)(2)(A).        As such, the trial court did not err in overruling
Appellant’s motion.
       Appellant’s sole issue is overruled.




                                                  4
                                                  DISPOSITION
        Having overruled Appellant’s sole issue, we affirm the trial court’s order denying
Appellant’s motion for forensic testing.


                                                          BRIAN HOYLE
                                                             Justice

Opinion delivered October 21, 2009.
Panel consisted of Worthen, C.J., and Hoyle, J.
Griffith, J., not participating.




                                            (DO NOT PUBLISH)




                                                      5
