                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-16-00334-CR

JARVIS MCDAVID,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 13th District Court
                            Navarro County, Texas
                          Trial Court No. D35700-CR


                         MEMORANDUM OPINION

      Jarvis Dunk McDavid appeals from the trial court’s order denying his motion for

DNA testing under Chapter 64 of the Code of Criminal Procedure regarding post-

conviction DNA testing. We affirm.

      In two issues on appeal, McDavid argues that the trial court erred in denying his

motion for DNA testing. McDavid was convicted of aggravated assault with a deadly

weapon, and he sought DNA testing on the knife used during the assault.
          After a person has been convicted, he can file a motion for forensic DNA testing of

certain evidence containing biological material. TEX. CODE CRIM. PROC. ANN. Art. 64.01

(West Supp. 2016). In reviewing the trial judge's Chapter 64 rulings, we give "almost total

deference" to the trial judge's findings of historical fact and application-of-law-to-fact

issues that turn on witness credibility and demeanor, but we consider de novo all other

application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim.

App. 2011); Glover v. State, 445 S.W.3d 858, 861 (Tex.App. – Houston[1st Dist.] 2014, pet.

ref’d).

          Article 64.03 of the Texas Code of Criminal Procedure provides that:

                (a) A convicting court may order forensic DNA testing under this
          chapter 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; and

                 (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



McDavid v. State                                                                           Page 2
             (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. ANN. Art. 64.03 (a) (West Supp. 2016).

       The record before us does not show that the knife or any other evidence still exists

and is in a condition making DNA testing possible. It appears that McDavid wants

fingerprint analysis on the knife. However, the record does not support a finding that

the knife has not been tampered with or altered so that DNA testing would be suitable.

We find that the trial court did not err in denying the motion for DNA testing. We

overrule the two issues on appeal.

       We affirm the trial court’s judgment.




                                          AL SCOGGINS

                                          Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 31, 2017
Do not publish
[CR25]




McDavid v. State                                                                     Page 3
