            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. AP-76,788

                            ANTHONY BARTEE, Appellant

                                              v.

                                THE STATE OF TEXAS

              ON DIRECT APPEAL FROM CAUSE NO. 1997-CR-1659
                  IN THE 175 TH JUDICIAL DISTRICT COURT
                               BEXAR COUNTY



       Per Curiam. H ERVEY, J., not participating.

                                       OPINION

       In May 1998, a jury found appellant guilty of the offense of capital murder. The

jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure

Article 37.071, and the trial court, accordingly, set appellant’s punishment at death. This

Court affirmed appellant’s conviction and sentence on direct appeal. Bartee v. State, No.

AP-73,126 (Tex. Crim. App. May 3, 2000)(not designated for publication). Appellant

filed his initial post-conviction application for writ of habeas corpus in the convicting
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court on January 3, 2000. This Court denied appellant relief. Ex parte Bartee, No. WR-

63,381-01 (Tex. Crim. App. Mar. 8, 2006)(not designated for publication). Appellant’s

first subsequent application was filed in the trial court on April 20, 2011, and this Court

dismissed it. Ex parte Bartee, No. WR-63,381-02 (Tex. Crim. App. Sept. 14, 2011)(not

designated for publication). This Court dismissed his second subsequent application on

February 29, 2012. Ex parte Bartee, No. WR-63,381-04 (Tex. Crim. App. Feb. 29,

2012)(not designated for publication).

       On March 1, 2012, the trial court granted appellant’s motion for post-conviction

DNA testing and ordered additional testing. After the testing lab filed its report, the trial

court held a hearing and found that appellant had failed to show that, had the results of

the DNA testing been available during the trial of this offense, it is reasonably probable

that appellant would not have been convicted. Appellant filed an appeal which was

received by this Court on April 30, 2012.

       Also on April 30, 2012, appellant filed in the trial court another motion for post-

conviction DNA testing and a motion to withdraw the currently scheduled execution date

of Wednesday, May 2, 2012. The trial court denied the motion for DNA testing because

appellant failed to state sufficient facts in support of his motion. The court further found

that, even if an unidentified profile could be developed from this evidence, at best it

would create an exculpatory inference. However, such an inference would not be

outweighed by other evidence in the case establishing appellant’s guilt. Appellant has
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now appealed this ruling.

       The trial court’s findings are supported by the record. Finding no reversible error

in the proceedings below, we affirm the judgment of the trial court and deny appellant’s

motion to stay his execution.

Delivered: May 2, 2012
Do Not Publish
