                         NUMBER 13-17-00482-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KENNETH NIOUS,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 28th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Rodriguez

      Appellant Kenneth Nious appeals from the trial court’s order denying his motion

for post-conviction DNA testing. By four issues, Nious complains of: (1) ineffective

assistance of counsel; (2) the State’s failure to disclose exculpatory DNA evidence; (3)
prosecutorial misconduct; and (4) the trial court’s denial of his motion for DNA testing.

We affirm the order denying the DNA motion.

                                  I.     BACKGROUND

      Nious was indicted for continuous sexual abuse of a child. See TEX. PENAL CODE

ANN. § 21.02 (West, Westlaw through 2017 1st C.S.). Authorities collected multiple DNA

samples from the child for testing.    Two DNA reports appear in the record.          The

November 4, 2008 serology/DNA report from the Texas Department of Public Safety

crime laboratory concluded that only the child’s DNA was detected in the samples. The

November 2008 report set out the following:

      The DNA profile from Item 1B1 ([the child complainant’s] labial swabs) is
      consistent with the DNA profile of [the child complainant]. [She] cannot be
      excluded as the contributor of the stain.

      No interpretable DNA profile was obtained from Item 1C1 ([the child’s] anal
      swabs).

      The partial DNA profile from the sperm cell fraction of the semen stain on
      Item 1D.Stain.A ([the child’s] panties) is consistent with the DNA profile of
      [the child]. [She] cannot be excluded as the contributor of the stain.

      The DNA extracts; the remaining portions of Items 1A, 1B1, 1C1, and 1D
      Stain A, and Item 1D Stain B are being retained frozen in this laboratory.

The November 4, 2008 report identified Item 1A as the child’s known blood sample. It

also set out that “[a] trace amount of apparent blood” and a “non-specific constituent of

saliva” were detected on Item 1D; no apparent semen was detected.

      Following an August 14, 2009 status hearing, a Y-Chromosome Short Tandem

Repeat (Y-STR) DNA analysis was requested. On October 22, 2009, a Bexar County

Criminal Investigation Laboratory issued its report. The findings from this report were


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inconclusive. It set out that “[n]o serological testing was performed on the cutting from

[Item D, the child’s] panties” because “human male DNA of insufficient quantity and/or

quality was present in the DNA extract from the cutting from the panties stain . . . to

develop a genetic profile.          Therefore, forensic Y-STR DNA comparisons were not

possible with this item.”

        That same date, October 22, 2009, Nious pleaded guilty, pursuant to a plea

agreement, to the lesser offenses of indecency with a child and aggravated sexual assault

of a child. See id. §§ 21.11, 22.021 (West, Westlaw through 2017 1st C.S.). The trial

court assessed punishment at twenty years in prison for the first offense and thirty years

in prison for the second, with the sentences to run concurrently. Nious claims, and the

State does not dispute, that he did not receive the October 22, 2009 results until after he

pleaded guilty.

        On February 4, 2013, Nious filed a post-conviction article 11.07 application for writ

of habeas corpus, complaining that, among other things: counsel was ineffective; the

State engaged in prosecutorial misconduct; and newly discovered DNA test results

obtained after he pleaded guilty exonerated him by failing to identify him as the person

who contributed trace amounts of blood, semen, and saliva found on samples from the

child.1 See TEX. CODE. CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2017 1st

C.S.). In support of his application, Nious attached investigative reports, a letter from his



        1 The clerk’s record shows that Nious filed a motion for DNA testing in 2012. In support of that
motion, Nious filed an affidavit stating, among other things, that he was provided ineffective assistance of
counsel, his plea was involuntary, and “in most instantences [sic] had no idea or recollection of events or
incidents” due to the medications he was taking, and the State suppressed the DNA results because he
was not allowed to see them. No ruling on this motion appears in the record.
                                                     3
attorney, and the laboratory findings from November 4, 2008 and October 22, 2009.

       On March 1, 2013, the trial court recommended that habeas relief be denied. The

court filed the following findings of fact and conclusions of law:

       (1) the Applicant’s plea was voluntary; (2) his counsel performed an
       adequate investigation; (3) there is no proof that counsel performed
       deficiently; (4) there is no proof that the results of these proceedings would
       have been different but for counsel’s conduct; (5) counsel rendered effective
       representation under Strickland; (6) the State did not fail to disclose
       favorable material evidence; (7) the State did not engage in prosecutorial
       misconduct; (8) none of the DNA evidence is newly discovered; (9) none of
       the DNA evidence is exculpatory; and (10) the Applicant has not shown any
       proof of actual innocence.

       On March 24, 2017, Nious filed the present Chapter 64 motion for DNA testing,

asking the trial court to order the testing of all legally preserved biological evidence for

the presence of “foreign blood, saliva, or semen that does not match movant[’]s.” Nious

asserted that he pleaded guilty out of fear that he would receive a harsher sentence if he

did not accept a plea. Nious maintained his innocence and claimed that he would never

have pleaded guilty but for counsel’s ineffective assistance and “would have demanded

collection, preservation and testing of all biological evidence to eliminate [him] from false

allegation.” Finally, Nious declared:

       under penalty of perjury that I am innocent of the crime for which I was
       convicted and as part of my effort to prove I am innocent I need to test any
       biological evidence that was preserved in order to eliminate me as the
       person charged with & convicted of this crime.

       The State responded urging, among other things, that Nious failed to establish by

a preponderance of the evidence that he would not have been prosecuted or convicted if

exculpatory results had been obtained through DNA testing and, thus, Nious did not meet

all Chapter 64 requirements to be entitled to court-ordered, post-conviction DNA testing.

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See id. art. 64.03(a)(2)(A) (West, Westlaw through 2017 1st C.S.). The trial court agreed

with the State and, on August 16, 2017, denied Nious’s motion for DNA testing because,

among other things, the motion lacked the requirements of article 64.03.2 See id. art.

64.03. No findings of fact or conclusions of law from this DNA proceeding appear in the

record. See Cravin v. State, 95 S.W.3d 506, 508 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d) (providing that implied factual findings support the denial of a Chapter 64 motion

for post-conviction DNA testing when no explicit findings appear in the record). This

appeal followed.

 II.     INEFFECTIVE ASSISTANCE OF COUNSEL, FAILURE OF THE PROSECUTOR TO DISCLOSE
                EXCULPATORY EVIDENCE, AND PROSECUTORIAL MISCONDUCT

        By his first three issues, Nious complains of matters that concern the underlying

trial, including ineffective assistance of counsel, failure of the prosecutor to disclose

exculpatory evidence, and prosecutorial misconduct. However, Chapter 64 does not

confer jurisdiction on an appellate court to consider “collateral attacks on the trial court’s

judgment or to review, under the guise of a DNA testing appeal, anything beyond the

scope of those articles.” In re Garcia, 363 S.W.3d 819, 821–22 (Tex. App.—Austin 2012,

no pet.) (quoting Reger v. State, 222 S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet.

ref’d)); see Weems v. State, 550 S.W.3d 776, 781–82 (Tex. App.—Houston [14th Dist.]

2018, no pet.); Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.—Corpus Christi 2003, no


         2 On January 23, 2018, the court reporter informed this Court that “[n]o hearing was had [on Nious’s

motion for DNA testing] and therefore no record was made.” Moreover, article 64.03, which applies in this
case, does not require a hearing for a trial court to determine if the applicant is entitled to DNA testing.
Rivera v. State, 89 S.W.3d 55, 58–59 (Tex. Crim. App. 2002); see TEX. CODE CRIM. PROC. ANN. art.
64.03(a)(2)(A) (West, Westlaw through 2017 1st C.S.). In contrast, a trial court must hold a hearing under
article 64.04 after a convicted person has obtained DNA testing under article 64.03. Rivera, 89 S.W.3d at
59.
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pet.). Nious’s issues related to counsel’s assistance, non-disclosure of evidence, and

prosecutorial conduct are collateral attacks that are beyond the scope of Chapter 64.

See In re Garcia, 373 S.W.3d at 821–22; see also, e.g., TEX. CODE CRIM. PROC. ANN. arts.

64.01–64.05 (West, Westlaw through 2017 1st C.S.).                       Because we do not have

jurisdiction under Chapter 64 to consider issues that challenge the judgment of conviction,

we do not reach Nious’s first three issues.

                                         III.    DNA TESTING

        By his fourth issue, Nious contends that he “has attempted to have the DNA tested

in a post-conviction Chpt. 64 motion for testing, however, the State wants to deny the

motion by incorrectly and unlawfully stating that defendant does not meet the

requirements set forthin [sic] Chapter 64.01 and 64.03.” See TEX. CODE CRIM. PROC.

ANN. arts. 64.01 & 64.03. Nious argues that he met conditions necessary for DNA testing

under Chapter 64.3 We disagree.

A.      Standard of Review

        Generally, we review a trial court’s decision on a DNA motion under a bifurcated

standard, affording almost total deference to the trial court’s determination of issues of

historical fact and those of application of law to fact that turn on credibility and demeanor

of witnesses and reviewing de novo other issues application-of-law-to-fact questions that

do not turn on the credibility and demeanor of witnesses. Weems, 550 S.W.3d at 779



        3   Nious also complains that his DNA “has not been tested using newer techniques that results [sic]
in more accurate and probative results than from previous tests.” However, he provides no record or case
support for his contention regarding new techniques. So, to the extent that Nious is contending that the
trial court erred in denying his motion because there are newer DNA techniques, his briefing is inadequate.
See TEX. R. APP. P. 38.1(i).
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(citing Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004); Rivera v. State, 89

S.W.3d 55, 59 (Tex. Crim. App. 2002)). But in this case, because the trial court did not

conduct a hearing, we review the trial court’s denial of DNA testing de novo. See id.

(citing Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005)).

B.     Applicable Law

               Chapter 64 of the Code of Criminal Procedure governs a convicted
       person’s request for post-conviction forensic DNA testing and contains
       multiple threshold requirements that must be met before an applicant is
       entitled to such testing. See, e.g., TEX. CODE CRIM. PROC. ANN. arts.
       64.01–64.05. The convicted person bears the burden of satisfying all
       article 64.01 and 64.03 requirements. Wilson v. State, 185 S.W.3d 481,
       484 (Tex. Crim. App. 2006) [(en banc)].

Weems, 550 S.W.3d at 779. “A convicting court may order forensic DNA testing only if

the statutory preconditions of Chapter 64 are met.” Id. at 780 (citing Holberg v. State,

425 S.W.3d 282, 284 (Tex. Crim. App. 2002)).

       Article 64.03 contains the following relevant requirement that Nious must have

established by a preponderance of the evidence: “the person 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).      The Texas Court of Criminal Appeals has

interpreted this requirement to mean that “a reasonable probability exists that exculpatory

DNA tests will prove a convicted individual’s innocence.” Skinner v. State, 122 S.W.3d

808, 811 (Tex. Crim. App. 2003). In other words, “[t]he standard required by this Court

to grant testing under Chapter 64 is affirmative evidence of innocence.” Id.; see also Ex

parte Gutierrez, 337 S.W.3d 883, 900 (Tex. Crim. App. 2011) (“The bottom line in post-

conviction DNA testing is this: Will this testing, if it shows that the biological material


                                            7
does not belong to the defendant, establish, by a preponderance of the evidence, that he

did not commit the crime as either a principal or a party?”). On the other hand, the

required showing of “exculpatory results” is not made “if exculpatory test results would

‘merely muddy the waters.’” LaRue v. State, 518 S.W.3d 439, 446 (Tex. Crim. App.

2017) (quoting Rivera, 89 S.W.3d at 59).

C.      Discussion

        Nious claims that he satisfied the Chapter 64 requirements. 4                  He asserts, in

relevant part, “with certainty that he would NOT have pleaded guilty and would have

insisted on going to trial” had he known “that the DNA test results supported his ACTUAL

INNOCENT claim because the second test results from 10/22/09 would have excluded

[him] as the semen doner [sic] of the specimen found in the [child’s] panties.” By this

argument, Nious claims he satisfied the article 64.03 requirement 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).

        However, as proof that exculpatory results would be obtained through the

requested DNA testing, Nious asserts that he would not have pleaded guilty and would

have gone to trial if he had known the DNA results supported his innocence claim. See

Weems, 550 S.W.3d at 779. We cannot conclude that this, without more, shows by a

preponderance of the evidence that he “would not have been convicted if exculpatory



        4Nious also argues that “the newly discovered DNA” that “came in a lab report dated 10/22/09”
was presented to the court after he pleaded guilty on that same day. But this argument was not made in
his 2017 motion for DNA testing, and Nious offers no record citation to support this argument; therefore,
we do not consider it.


                                                   8
results had been obtained through DNA testing.”         TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(2)(A). By this assertion, Nious did not establish that a reasonable probability

existed that exculpatory DNA tests would prove his innocence. See Skinner, 122 S.W.3d

at 811.

       Moreover, the results of the October 22, 2009 DNA report did not support Nious’s

innocence and did not exclude Nious as a semen donor, as he contends. Instead, the

report concluded only that no serological testing could be performed from the sample

because “human male DNA of insufficient quantity and/or quality was present in the DNA

extract from the cutting from the panties stain . . . to develop a genetic profile.” In sum,

the October 22 report was inconclusive as to the innocence of any party and did not

support Nious’s actual-innocence claim. So, we cannot conclude that post-conviction

testing would give rise to a reasonable probability that Nious did not commit the crime.

See Ex parte Gutierrez, 337 S.W.3d at 900. Also, because no explicit findings of fact

and conclusions of law appear in the record, any implied factual findings would support

the denial of his motion. See Cravin, 95 S.W.3d at 508.

       Based on the argument before us and our de novo review of the record, see

Weems, 550 S.W.3d at 779, we conclude that any exculpatory test results would likely

only muddy the waters. See LaRue, 518 S.W.3d at 446. Nious failed to satisfy all

threshold requirements of Chapter 64, and the trial court properly denied his motion for

DNA testing on this basis. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A); Weems,

550 S.W.3d at 779. We overrule Nious’s fourth issue.




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                                  IV.   CONCLUSION

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

testing.


                                                            NELDA V. RODRIGUEZ
                                                            Justice

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

Delivered and filed the 27th
day of December, 2018.




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