        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00127-CR




                                     In re Johnny Ray Valchar




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
       NO. 95-522-K277, HONORABLE JACK R. MILLER, JUDGE PRESIDING



                              MEMORANDUM                   OPINION


                 In 2006, Johnny Ray Valchar pleaded guilty to sexual assault (enhanced by

two previous felony convictions), was adjudged guilty, and was sentenced to twenty-five years in

prison as called for in a plea bargain. He now appeals the district court’s order denying his motion

for forensic DNA testing pursuant to code of criminal procedure chapter 64. See Tex. Code Crim.

Proc. Ann. art. 64.01-.05 (West 2006 & Supp. 2009). We affirm the order.

                 Valchar’s pro se brief challenges generally the trial court’s order denying his request

for testing.1 The court denied testing based on these findings and conclusions:


         The testing motion is not accompanied by an affidavit containing statements of fact
         in support of the motion. See id. art. 64.01(a) (West Supp. 2009).

         The motion does not identify the item or items to be tested.




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       The testing motion was filed by appointed counsel, but Valchar represents himself on appeal.
        Valchar has failed to establish that DNA testing was not done previously through no
        fault of his own. See id. art. 64.01(b)(1)(B).

        Valchar has failed to establish that identity was or is an issue in the case. See
        id. art. 64.03(a)(1)(B) (West Supp. 2009).

        Valchar has failed to establish that he would not have been convicted of the
        offense had exculpatory results been obtained through DNA testing. See
        id. art. 64.03(a)(2)(A).


We defer to the trial court’s fact findings and credibility determinations, but we review legal issues

de novo. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

                Although the testing motion was not accompanied by a supporting affidavit, the

motion itself is verified by Valchar’s unsworn declaration. And although the motion does not

specifically identify the items to be tested, it does state that Valchar’s attorney had reviewed the case

file and spoken to the assistant district attorney who handled the case. The State’s response to the

testing motion states that three items of clothing belonging to the complainant were secured as

evidence in the case and are in the present custody of the sheriff: a bathing suit, a pair of shorts, and

a T-shirt. In 1995, before appellant’s trial, a department of public safety criminalist found semen

on the bathing suit and shorts, but not on the shirt. It is reasonably clear that the bathing suit and

shorts are the items for which testing is sought. For the purpose of this opinion, we will assume that

article 64.01(a) was satisfied.

                Under chapter 64, a defendant must have availed himself of whatever DNA

technology was available to him at the time of his trial. Routier v. State, 273 S.W.3d 241, 248 (Tex.

Crim. App. 2008). If DNA testing was not done at the time of trial, the defendant must show that

such testing was not available, was not capable of providing probative results, or was not done


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through no fault of the defendant for reasons that are such that the interests of justice require DNA

testing. Tex. Code Crim. Proc. Ann. art. 64.01(1)(A), (B); see Skinner v. State, 293 S.W.3d 196,

200-02 (Tex. Crim. App. 2009).

               Valchar’s testing motion states that “[Valchar] plead guilty due to fear of harsh

sentence, not due to actual guilt. Additionally, [Valchar] was not aware that any physical evidence

was available to test because of the six month time lapse between the date of the alleged offense and

the date of [Valchar]’s arrest.” Valchar argues that these statements are sufficient to satisfy the “no

fault” requirement. But even if these statements are accepted as true, they do not demonstrate that

DNA testing was unavailable to Valchar at the time of his trial. Valchar has not shown that the

existence of the semen-stained clothing was withheld from the defense or was otherwise

undiscoverable before he pleaded guilty, nor has he alleged that his counsel at the time he pleaded

guilty was ineffective in failing to seek testing at that time. Thus, he has failed to show that DNA

testing was not done through no fault of his own. See Skinner, 293 S.W.3d at 200-03.

               Before DNA testing may be ordered under chapter 64, the trial court must find that

identity was or is an issue in the case, and the applicant must 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)(1)(B), (2)(A). Regardless of the defendant’s

plea and the strength of the identification evidence adduced at the trial, the defendant can make

identity an issue in the case by showing that DNA tests would prove his innocence. Esparza v. State,

282 S.W.3d 913, 922 (Tex. Crim. App. 2009); Blacklock v. State, 235 S.W.3d 231, 233 (Tex.

Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 64.03(b) (West Supp. 2009). But

if DNA testing would not determine the identity of the person who committed the offense or

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would not exculpate the person convicted, then these requirements are not met. Prible v. State,

245 S.W.3d 466, 470 (Tex. Crim. App. 2008).

               The testing motion states that the complainant in this case was an acquaintance of

Valchar. The motion continues, “This acquaintance claimed that she told [Valchar] that she earlier

had sexual intercourse with her boyfriend, and [Valchar] allegedly then had sexual intercourse with

the acquaintance. The acquaintance later claimed that the sexual intercourse with [Valchar] was not

consensual.” The motion goes on to argue, as Valchar now does in his brief, that “[i]f the

complainant’s story was true, DNA testing should show [Valchar’s] semen or epithelial cells, as well

as those of her then-boyfriend. If the testing does not show [Valchar’s] DNA, this directly

contradicts the complainant’s story and establishes [Valchar’s] innocence.” In short, it is Valchar’s

contention that the absence of his DNA on the semen-stained clothing would prove that he was not

the complainant’s attacker.

               The record is not sufficient to support this contention because the facts related in the

testing motion, which are the only facts before us, do not reflect that the complainant’s attacker

deposited semen during the assault. Thus, the absence of Valchar’s DNA would not demonstrate

his innocence. This distinguishes this case from Esparza and Smith v. State, in both of which the

evidence showed that the attacker ejaculated. See Esparza, 282 S.W.3d at 921; Smith v. State,

165 S.W.3d 361, 364 (Tex. Crim. App. 2005). Similarly, the presence of someone else’s DNA on

the complainant’s clothing would not exculpate Valchar because there is no factual basis for

concluding that this semen was the attacker’s and not the complainant’s boyfriend’s, with whom we

are told she had sexual intercourse prior to the attack.



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               Valchar has not shown that DNA testing was not available at the time of his trial

through no fault of his own. Further, Valchar has not shown that identity is an issue in this case or,

by a preponderance of the evidence, that he would not have been convicted if exculpatory results had

been obtained by DNA testing.

               In a supplemental brief, Valchar claims that the attorney appointed to represent him

in this chapter 64 proceeding did not render effective assistance. This Court has held that there is

no Sixth Amendment right to effective assistance in a chapter 64 proceeding. In re Beasley,

107 S.W.3d 696, 697-98 (Tex. App.—Austin 2003, no pet.); see also Winters v. Presiding Judge,

118 S.W.3d 773, 774 (Tex. Crim. App. 2003). In any event, we do not have a record before us on

which to assess counsel’s performance.

               Finally, Valchar has filed what he styles a “motion under nunc pro tunc” asserting that

his 2006 conviction must be reversed because he was not properly admonished at the time he pleaded

guilty. See Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2009). This contention is outside

the scope of this appeal, which is limited to the trial court’s order denying Valchar’s testing motion.

               For the reasons stated, the district court’s order is affirmed.




                                               __________________________________________
                                               Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: April 29, 2010

Do Not Publish

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