Opinion issued July 25, 2019




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-17-00858-CR
                           ———————————
                         KEVIN CASTRO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1318800


                         MEMORANDUM OPINION

      Kevin Castro moved for post-conviction DNA testing under Chapter 64 of

Code of Criminal Procedure. The trial court denied his motion. We affirm.
                                 BACKGROUND

                           Castro’s Trial and Conviction

      A jury found Castro guilty of the first-degree felony offense of aggravated

robbery with a weapon, a handgun, and this court affirmed his conviction. See Castro

v. State, No. 01-12-00396-CR, 2013 WL 655208, at *1 (Tex. App.—Houston [1st

Dist.] Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication).

      At trial, the complainant, Carlos Ayala, testified that Castro put a handgun to

Ayala’s stomach and said “I’m going to rob you.” See id. Ayala threw his wallet,

after which a second man accompanying Castro instructed Castro to shoot Ayala. Id.

Ayala fled to his apartment, where he telephoned the police. Id. Castro and the other

man then drove away in a maroon vehicle. Id. at *1 & n.3.

      The police found Castro and the other man at a nearby convenience store and

pulled them over as they left. Id. Castro was driving a maroon vehicle. Id. When the

police searched this vehicle, an officer found a loaded handgun, Ayala’s tax

identification card, and a wallet matching Ayala’s description of his wallet. Id.

      When he took the stand, Ayala identified Castro as the man who robbed him.

Id. at *2. Defense counsel did not object to Ayala’s identification testimony. Id.

                         Castro’s Post-Conviction Motions

      Castro sought and obtained post-conviction DNA testing under Chapter 64.

The trial court signed an agreed order providing for a DNA comparison of a blood


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and saliva sample taken from Castro and biological evidence taken from the wallet,

tax identification card, handgun, and a hat that Castro allegedly wore during the

robbery. The testing yielded these results:

      ●   the wallet had DNA from two people, neither of whom was Castro;

      ●   the tax identification card had no discernable DNA on it;

      ●   the handgun did not have any interpretable DNA on it; and

      ●   the hat had DNA from two people and Castro could not be excluded.

      Castro later moved for further DNA testing. He requested that the trial court

order Ayala to submit a DNA sample for comparison with the DNA obtained from

the wallet. The trial court denied the motion on the ground that Castro had not shown

a reasonable probability that he would not have been prosecuted or convicted if he

had had access to the requested DNA testing at or before trial.

      Castro appeals from the order denying his motion for further DNA testing.

                                   DISCUSSION

      Castro argues that the trial court erred in not ordering Ayala, the complainant,

to provide a DNA sample for comparison with the biological material on the wallet.

Castro posits that if testing reveals that Ayala’s DNA is not on the wallet, this would

show that it did not belong to Ayala and thereby prove that Castro did not rob him.




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                                 Standard of Review

      A bifurcated standard of review applies to a trial court’s denial of a motion

for post-conviction DNA testing under Chapter 64 of the Code of Criminal

Procedure. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). We almost

totally defer to its resolution of historical fact issues supported by the record and

application-of-law-to-fact issues that turn on witness credibility and demeanor. Id.

We review de novo all other application-of-law-to-fact questions. Id. at 768–69.

                                   Applicable Law

      There is no constitutional right to post-conviction testing to ascertain the

presence of another person’s DNA. See Prible v. State, 245 S.W.3d 466, 469 (Tex.

Crim. App. 2008). Instead, the right to post-conviction DNA testing is defined by

statute, specifically Chapter 64 of the Code of Criminal Procedure. See id. at 469–

70; Swearingen v. State, 189 S.W.3d 779, 780 (Tex. Crim. App. 2006).

      A convicted person may move in the convicting court for DNA testing of

“evidence that has a reasonable likelihood of containing biological material” under

certain circumstances. See TEX. CODE CRIM. PROC. art. 64.01(a-1), (b). Biological

material “means an item that is in possession of the state and that contains blood,

semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or

other identifiable biological evidence that may be suitable for forensic DNA testing.”

TEX. CODE CRIM. PROC. art. 64.01(a)(1). The movant may seek testing only of


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evidence “that was secured in relation to the offense that is the basis of the

challenged conviction and was in the possession of the state during the trial of the

offense.” TEX. CODE CRIM. PROC. art. 64.01(b).

      In general, the convicting court may grant a motion for DNA testing only if:

      (1) the court finds that:
          (A) the evidence:
              (i) still exists and is in a condition making DNA testing
                  possible; and
              (ii) has been subjected to a chain of custody sufficient to
                   establish that it has not been substituted, tampered with,
                   replaced, or altered in any material respect;
          (B) there is a reasonable likelihood that the evidence contains
              biological material suitable for DNA testing; and
          (C) identity was or is an issue in the case; and
      (2) the convicted person establishes by a preponderance of the evidence
          that:
          (A) the person would not have been convicted if exculpatory results
              had been obtained through DNA testing; and
          (B) the request for the proposed DNA testing is not made to
              unreasonably delay the execution of sentence or administration
              of justice.

TEX. CODE CRIM. PROC. art. 64.03(a)(1), (2).

      Thus, to obtain DNA testing under Chapter 64, a convicted person must prove

by a preponderance of the evidence—a greater than 50% likelihood—that the jury

would not have found him guilty if his proposed testing’s exculpatory results had

been available at trial. Reed, 541 S.W.3d at 774. In our review, we ordinarily assume,
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without deciding, that the test results would be exculpatory. See id. Exculpatory

“means only results excluding the convicted person as the donor” of any DNA. Id.

Accordingly, the convicted person must show that, more likely than not, the jury

would not have found him guilty if it had been able to weigh evidence that he did

not deposit DNA on the tested evidence against the balance of the evidence presented

during trial. Holberg v. State, 425 S.W.3d 282, 287 (Tex. Crim. App. 2014). This

requirement is not satisfied if the DNA test results would “merely muddy the

waters.” LaRue v. State, 518 S.W.3d 439, 446 (Tex. Crim. App. 2017).

                                      Analysis

      Castro’s motion is fatally defective for two reasons. First, he requests that the

trial court order new evidence to be collected, specifically a specimen from Ayala.

On its face, Chapter 64 provides solely for the testing of evidence that previously

was secured by the state and was in the state’s possession at trial. TEX. CODE CRIM.

PROC. art. 64.01(b). As a matter of law, Castro cannot compel Ayala to submit a

DNA sample for comparison post-conviction. See id.; see, e.g., Yarbrough v. State,

258 S.W.3d 205, 209 (Tex. App.—Waco 2008, no pet.) (convict could neither

compel state to exhume victim’s body to gather additional evidence nor compel

blood draw from co-defendant).

      Second, the DNA testing that Castro seeks must be exculpatory in the sense

that its results could exclude him as a donor. See Reed, 541 S.W.3d at 774. The


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testing that he seeks, however, is a comparison between Ayala’s DNA and the DNA

on the wallet. The wallet previously was tested at Castro’s request. The results

showed the DNA of two persons, neither of whom was Castro. So he already has

been excluded as a donor and, even if he had not, establishing that Ayala was or was

not one of two donors could not exclude Castro. As a matter of law, Castro is not

entitled to the testing he requests because it could not exculpate him. See id.; LaRue,

518 S.W.3d at 446.

      We hold that the trial court did not err in denying Castro’s motion.

                                  CONCLUSION

      We affirm the trial court’s order denying Castro’s motion for post-conviction

DNA testing.




                                               Gordon Goodman
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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