                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00158-CR


ALLEN F. CALTON                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 0843168D

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                        MEMORANDUM OPINION 1

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      Appellant Allen F. Calton appeals from the trial court’s order denying his

second post-conviction motion for forensic DNA testing. We affirm.

      In 2002, Calton drove to Everett Angle’s home, got out of his car to shoot

Angle in the face while Angle was standing in his front yard, and then stood over

Angle to shoot him two more times. Angle survived. Calton drove off and later


      1
       See Tex. R. App. P. 47.4.
engaged in a high-speed chase with police, which ended with Calton driving his

car into a local lake. Calton was indicted with the attempted murder of Angle and

argued at trial that he could not have formed the requisite intent because he was

hypoglycemic that day and, thus, was effectively unconscious. See Tex. Penal

Code Ann. § 6.01 (West 2011). The identity of the shooter was not a disputed

issue in the case. Calton was convicted of attempted murder and sentenced to

life confinement. This court affirmed his conviction. See Calton v. State, No. 2-

04-228-CR, 2005 WL 3082202, at *1–5 (Tex. App.—Fort Worth Nov. 17, 2005,

pet. withdrawn) (mem. op., not designated for publication). 2

      After the court of criminal appeals and a federal district court denied Calton

habeas corpus relief, he filed a motion requesting that material from his car’s

front seat and a slipper found at the crime scene be subject to forensic DNA

testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2014). This

evidence had been tested in 2002 and 2004, but no results could be produced

because there was insufficient genetic material to produce reliable results. The

trial court denied the motion on May 13, 2008. See id. art. 64.03(a) (West Supp.

      2
        Calton was also convicted of evading arrest, which likewise was affirmed.
See Calton v. State, 132 S.W.3d 29, 31 (Tex. App.—Fort Worth 2004), aff’d,
176 S.W.3d 231, 236 (Tex. Crim. App. 2005). In doing so, we held (and the court
of criminal appeals agreed) that Calton’s prior conviction for evading arrest was
an element of evading arrest alleged as a third-degree felony, which must be
proved at the guilt-innocence phase of trial; thus, we reformed the judgment to
reflect that Calton had been convicted of the state-jail-felony offense of evading
arrest and remanded for a new punishment hearing. Id. at 32–34. We have no
further information regarding Calton’s evading-arrest conviction, but it is not at
issue in his second DNA motion.


                                         2
2014). We affirmed the trial court’s order because “[t]here [was] no showing . . .

that identity was or is an issue in this case” and “there [was] no showing that any

other person committed the offense and was in the car where the material

subjected to DNA testing was found.”           Calton v. State, No. 2-08-208-CR,

2009 WL 976004, at *4 (Tex. App.—Fort Worth Apr. 9, 2009, pet. ref’d) (mem.

op., not designated for publication).

      On August 13, 2013, Calton filed a second motion for forensic DNA testing

and asked that the car-seat material and slipper again be tested against Calton’s

and Angle’s blood samples “under the new and more advanced DNA lab testing

technology and capabilities.” On September 16, 2013, Calton filed a notice of

appeal from the anticipated denial of his second DNA motion.                   On

February 13, 2014, we dismissed the attempted appeal for want of jurisdiction

because the motion had not been finally decided and noted that although

Calton’s motion had been filed almost five months earlier, the trial court had

taken no action on the motion.          See Calton v. State, No. 02-13-00460-CR,

2014 WL 584940, at *1 (Tex. App.—Fort Worth Feb. 13, 2014, no pet.) (mem.

op., not designated for publication). The State was provided with a copy of the

motion the next day—February 14, 2014. See Tex. Code Crim. Proc. Ann. art.

64.02 (West Supp. 2014). The record reflects the motion was only sent to the

trial-court clerk and does not explain why there was a delay in providing the State

a copy of Calton’s motion until six months after it was filed. In any event, the

State responded to Calton’s motion that although there was evidence that could


                                           3
be tested, Calton had failed to show that newer testing techniques had a

reasonable likelihood of producing more accurate and probative results, identity

was or is an issue, and DNA testing would exonerate him.

      On March 24, 2014, the trial court denied Calton’s second motion for

forensic DNA testing and entered findings and conclusions.        The trial court

concluded that Calton’s motion was without merit because Calton did not allege

that identity was or is at issue, show that newer testing would be reasonably

likely to produce more accurate and probative results, or prove by a

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

attempted murder if the DNA test results were exculpatory.          See id. arts.

64.01(b)(2), 64.03(a).   Calton now appeals the trial court’s denial. See id. art.

64.05 (West 2006). Because an evidentiary hearing was not held, we review the

trial court’s ruling de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim.

App. 2005); Lomax v. State, No. 14-07-00934-CR, 2008 WL 5085653, at *1 (Tex.

App.—Houston [14th Dist.] Nov. 25, 2008, pet. ref’d) (mem. op., not designated

for publication).

      A movant for DNA testing must do more than simply move for such relief;

he bears the burden to satisfy the requirements of the statute allowing such

testing and must provide facts in support of the motion. See Tex. Code Crim.

Proc. Ann. art. 64.01(a-1); Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim.

App. 2006) (op. on reh’g); Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App.

2002). Because the evidence at issue here previously was subjected to DNA


                                        4
testing, Calton was required to allege facts to support his contention that newer

testing techniques are available and that it is reasonably likely that such

techniques would yield more accurate and probative results. See Tex. Code

Crim. Proc. Ann. art. 64.01(b)(2); Dinkins, 84 S.W.3d at 642. In his supporting

declaration,   Calton   stated   that   “DNA   testing   technology   has   evolved

tremendously over the past few years” and that “several [new] methods” would

“clearly trump[] the testing capabilities that were available when testing was done

. . . in 2002.” These bare allegations are insufficient to establish the need for

further testing. 3 See Dukes v. State, No. 04-12-00404-CR, 2013 WL 1760618, at

*2 (Tex. App.—San Antonio Apr. 24, 2013, no pet.) (mem. op., not designated for

publication); Luna v. State, No. 2-03-012-CR, 2003 WL 21940907, at *2 (Tex.

App.—Fort Worth Aug. 14, 2003, pet. ref’d) (mem. op., not designated for

publication); cf. Routier v. State, 273 S.W.3d 241, 250–51 (Tex. Crim. App. 2008)

(holding DNA retest warranted based on expert evidence defendant produced in

support of article 64.01 motion showing that retest with newer techniques likely

would yield result).

      Even if Calton’s motion met the requirements of article 64.01, he still bore

the burden to show that identity was or is at issue in the case. See Tex. Code

      3
        In his appellate brief, Calton states that he has shown that “Orchid
Cellmark in Dallas, Texas has more advanced testing procedure[s] in place that
will, in all probability, yield conclusive results with the miniscule amount of
available evidence.” Calton provides no record support for this statement;
indeed, this assertion was not raised to the trial court in Calton’s second motion
for forensic DNA testing.


                                         5
Crim. Proc. Ann. art. 64.03(a)(1)(B); Wilson, 185 S.W.3d at 484. As we and the

trial court previously concluded, Calton’s identity as Angle’s attacker was never in

dispute at trial, and Calton did not raise identity in his second DNA motion or

supporting declaration. 4    See Calton, 2009 WL 976004, at *4.              Article

64.03(a)(2)(A) requires that a “convicted person 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); see Holberg v. State, 425 S.W.3d 282, 286–87 (Tex. Crim. App.

2014). Here, the record supports the conclusion that Calton failed to satisfy his

burden to show that it was more likely than not that exculpatory results would

have altered the outcome of his trial. See Holberg, 425 S.W.3d at 288. Thus,

the trial court correctly concluded that further DNA testing was not warranted

because identity was not at issue and because Calton failed to show by a

preponderance that that he would not have been convicted if DNA testing

provided exculpatory evidence.        See Tex. Code Crim. Proc. Ann. art.

64.03(a)(1)(B), (2)(A); Birdwell v. State, 276 S.W.3d 642, 646 (Tex. App.—Waco

2008, pet. ref’d).




      4
       Calton points to his sworn statement given to police after his arrest that
his passenger, “Mike,” shot Angle in self-defense. Calton provides no citation to
the record before this court for this argument.


                                         6
      We overrule Calton’s issue and affirm the trial court’s order.


                                                   PER CURIAM

PANEL: GABRIEL, MEIER, and SUDDERTH, JJ.

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

DELIVERED: June 25, 2015




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