                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS

                                                           §
    RAUL PARRA,                                                              No. 08-13-00328-CR
                                                           §
                              Appellant,                                           Appeal from
                                                           §
    v.                                                                        409th District Court
                                                           §
    THE STATE OF TEXAS,                                                    of El Paso County, Texas
                                                           §
                              Appellee.                                      (TC # 20060D03360)
                                                           §

                                                   OPINION

          Raul Parra appeals the denial of his motion for post-conviction DNA testing pursuant to

Article 64.03 of the Texas Code of Criminal Procedure. For the reasons that follow, we affirm.

                                            FACTUAL SUMMARY

          In 2008, a jury found Appellant guilty of aggravated sexual assault of a six-year-old child

and assessed his punishment at life imprisonment. The evidence at trial showed that Appellant

and his family resided in the same apartment complex as the victim, N.A., who lived with her

grandmother. N.A.’s grandmother invited Appellant and his family to dinner on July 18, 2006.

Later, Appellant, his son, and N.A. went to Appellant’s apartment to watch a movie. Appellant

took N.A. into a bedroom, pulled down her pants and underwear, and “put his [penis] is [N.A.’s]

butt.” Appellant’s wife1 came into the apartment and looked into the bedroom which was dark.


1
    Appellant’s wife was subpoenaed to testify but she did not appear at trial and could not be located. She provided a
She saw N.A. sitting on the bed and pulling at the seam of her shorts while Appellant was

standing by the bed with his pants unzipped. Appellant denied doing anything to N.A., but he

fled the apartment and N.A. ran back to her grandmother’s apartment.

          A sexual assault examination was performed on N.A. at a hospital and evidence was

collected from N.A., including oral and anal swabs, fingernail scrapings, hairs pulled from

N.A.’s head, and her underwear. The evidence was submitted to the DPS lab for DNA testing.

The DNA analyst, Christine Ceniceros, first examined the evidence to determine if there was any

blood or semen. Because Ceniceros did not find any blood or semen, she did not perform DNA

testing. Ceniceros did not find any hairs in N.A.’s underwear and she was not asked to examine

the submitted evidence for saliva, sweat, or epithelial cells.

          In the direct appeal, Appellant raised issues related to the trial court’s failure to follow the

procedures of Article 36.272 and juror misconduct.                 We issued an opinion and judgment

affirming the conviction and sentence on July 14, 2010 and our mandate issued on January 27,

2011. Parra v. State, No. 08-09-00059-CR, 2010 WL 2768527 (Tex.App.--El Paso, July 14,

2010, pet. ref’d)(not designated for publication). In 2011, Appellant filed an application for a

writ of habeas corpus under Article 11.07.3 The Court of Criminal Appeals denied relief on

September 18, 2013. Ex parte Parra, 420 S.W.3d 821 (Tex.Crim.App. 2013). Shortly after he

filed his writ application and while it was pending before the Court of Criminal Appeals,


written statement to police the day after the incident which the State attached to its written response to the DNA
motion. This statement was properly before the trial court. See Ex parte Gutierrez, 337 S.W.3d 883, 892-94
(Tex.Crim.App. 2011).
2
    See TEX.CODE CRIM.PROC.ANN. art. 36.27 (West 2006).
3
    See TEX.CODE CRIM.PROC.ANN. art. 11.07 (West 2015).
                                                      -2-
Appellant filed a motion for post-conviction DNA testing of samples and clothing collected from

the victim. The trial court denied the motion. On appeal, Appellant alleged that Chapter 64 is

unconstitutional and violated his right to due process because it precluded his access to post-

conviction DNA testing.       Parra v. State, No. 08-11-00371-CR, 2013 WL 3488031 at *1

(Tex.App.--El Paso, July 10, 2013, no pet.)(not designated for publication). We concluded that

Appellant waived his challenge to the constitutionality of the statute because he had not raised it

in the trial court. Id.

        Appellant subsequently filed a second motion for DNA testing expressly alleging that

Chapter 64 is unconstitutional on its face and “as applied” to him because he is forced to rely on

the determination of the State’s expert that there is no biological material and the statute does not

provide for the appointment of an expert to independently examine the physical evidence for

DNA. The State first responded that the motion should be denied because Appellant had failed

his initial burden of showing the existence of testable biological material given that Ceniceros’s

trial testimony established there was no “testable DNA material” on any of the items Appellant

sought to have tested. Second, the State argued that Appellant had not shown identity as an issue

in this case because the evidence established that the offense occurred in Appellant’s bedroom

and his wife caught him in the act of molesting N.A. Third, the State asserted that Appellant had

not shown that the statute’s requirement that he demonstrate the actual existence of evidence

containing testable biological material offends any established principles of justice or is in any

way fundamentally unfair. The trial court denied the motion without a hearing and the order did

not specify the exact bases for the ruling.


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                              CONSTITUTIONALITY OF CHAPTER 64

         In his sole issue on appeal, Appellant contends that Chapter 64 is unconstitutional as

applied to him because it does not provide a procedure for an indigent defendant to have an

independent expert appointed to determine whether DNA evidence exists. Appellant maintains

that the statute operated to violate his right to due process.

                                         Post-Conviction DNA Testing

         Under Chapter 64, a convicted person may file a motion in the convicting court for

forensic DNA testing of evidence containing biological material. TEX.CODE CRIM.PROC.ANN.

art. 64.01(a-1)(West Supp. 2014).4 The motion must be accompanied by an affidavit sworn to by

the convicted person, containing statements of fact in support of the motion.                             TEX.CODE

CRIM.PROC.ANN. art. 64.01(a-1). As a threshold matter, the convicted person is required to show

the evidence sought to be tested contains biological material. Swearingen v. State, 303 S.W.3d

728, 732 (Tex.Crim.App. 2010). Under Article 64.01(a), “biological material”:

         (1) 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; and

         (2) includes the contents of a sexual assault evidence collection kit.

TEX.CODE CRIM.PROC.ANN. art. 64.01(a)(West Supp. 2014). Article 64.01(b) provides that:

         (b) The motion may request forensic DNA testing only of evidence described by
         Subsection (a-1) 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, but:

4
  The Legislature amended Articles 64.01(a-1) and 64.03 in 2015, but the changes in the law apply to a motion for
forensic DNA testing filed on or after the effective date of the act, September 1, 2015. See 84th Leg., R.S., Ch. 70,
§§ 1, 2, 3, and 4. Appellant’s motion is governed by the law in effect on the date the motion was filed.
                                                        -4-
        (1) was not previously subjected to DNA testing; or

        (2) although previously subjected to DNA testing, can be subjected to testing with
        newer testing techniques that provide a reasonable likelihood of results that are
        more accurate and probative than the results of the previous test.

TEX.CODE CRIM.PROC.ANN. art. 64.01(b).

        The convicting court is required to order DNA testing only when the requirements of

Article 64.03 are met: (1) the evidence still exists and is in a condition making DNA testing

possible; (2) the evidence has been subject to a chain of custody sufficient to establish that it has

not been substituted, tampered with, replaced, or altered in any material respect; (3) identity was

or is an issue in the case, and (4) the convicted person establishes by a preponderance of the

evidence5 that he would not have been convicted if exculpatory results had been obtained

through DNA testing. TEX.CODE CRIM.PROC.ANN. art. 64.03; Bell v. State, 90 S.W.3d 301, 306

(Tex.Crim.App. 2002).

                                              Standard of Review

        The constitutionality of a criminal statute is a question of law which we review de novo.

Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App. 2013); Fielding v. State, 266 S.W.3d 627, 632

(Tex.App.--El Paso 2008, pet. ref’d).             When resolving such an issue, we begin with the

presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily

in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); Fielding, 266

S.W.3d at 632.          The burden rests on the party challenging a statute to establish its


5
  A preponderance of the evidence is measured by whether there is a reasonable probability of a different outcome
had the DNA test results been available at the time of trial. Whitfield v. State, 430 S.W.3d 405, 422 (Tex.Crim.App.
2014).
                                                       -5-
unconstitutionality. Ex parte Lo, 424 S.W.3d at 15; Fielding, 266 S.W.3d at 632. The statute

must be upheld if a reasonable construction can be ascertained that will render the statute

constitutional and carry out the legislative intent.     Shaffer v. State, 184 S.W.3d 353, 363

(Tex.App.--Fort Worth 2006, pet. ref’d). An “as applied” challenge to the constitutionality of a

statute asserts that a statute, although generally constitutional, operates unconstitutionally as to

the claimant because of his particular circumstances. Gillenwaters v. State, 205 S.W.3d 534, 536

n.3 (Tex.Crim.App. 2006).

                   Applicability of Ake v. Oklahoma to Chapter 64 Proceeding

       Appellant does not argue that the procedures prescribed by Chapter 64 prohibit the

convicting court from appointing an expert to assist an indigent person seeking relief under

Chapter 64. He argues instead that Chapter 64 is constitutionally invalid because it does not

contain a provision requiring the court to appoint an expert to independently examine whether

the items sought to be tested contain testable biological material. Appellant does not explain

why the right to an expert must be provided for by statute. The case on which Appellant relies,

Ake v. Oklahoma, establishes that an indigent defendant has a constitutional right to a court-

appointed expert when he makes a preliminary showing that his sanity at the time of the offense

is a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-92, 84

L.Ed.2d 53 (1985)(holding that “when a defendant has made a preliminary showing that his

sanity at the time of the offense is likely to be a significant factor at trial, the Constitution

requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant

cannot otherwise afford one.”). Ake does not require that the procedural due process right it


                                               -6-
recognizes be provided for by statute. To the contrary, it contemplates that the defendant will

raise the issue by motion.

       The Court of Criminal Appeals has extended Ake to require the appointment of experts in

other fields in capital and non-capital cases when the defendant has made a proper showing. See

e.g., Rey v. State, 897 S.W.2d 333, 337-38 (Tex.Crim.App. 1995); De Freece v. State, 848

S.W.2d 150 (Tex.Crim.App. 1993); McBride v. State, 838 S.W.2d 248 (Tex.Crim.App. 1992).

In its application of Ake, the Court of Criminal Appeals has required a defendant to file a motion

supported by affidavits or other evidence showing that the issue for which he seeks expert

assistance is “likely to be a significant factor” at trial. Rey, 897 S.W.2d at 339. A defendant

generally fails to make a sufficient showing under Ake where the motion is not supported by

affidavits or other evidence, or the motion does not explain the defensive theory and why expert

assistance would be helpful in establishing that theory. Rey, 897 S.W.2d at 341. Additionally, a

motion is insufficient if it fails to show that there is a reason to question the State’s expert and

proof. Ehrke v. State, --- S.W.3d ---, 2015 WL 1823480 at *7 (Tex.Crim.App. April 22, 2015);

Rey, 897 S.W.2d at 341.

       Ake’s holding is based on an indigent criminal defendant’s right to due process at trial. A

criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free

man. District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct.

2308, 2320, 174 L.Ed.2d 38 (2009). Given a valid conviction, the criminal defendant has been

constitutionally deprived of his liberty interests. Id. Consequently, a state has more flexibility in

deciding what procedures are needed in the context of post-conviction relief. Id. There is no


                                                -7-
free-standing substantive due-process right to DNA testing, and the task of fashioning rules

to “harness DNA’s power to prove innocence without unnecessarily overthrowing the

established system of criminal justice” belongs “primarily to the legislature.”             Ex parte

Gutierrez, 337 S.W.3d 883, 889 (Tex.Crim.App. 2011), quoting District Attorney’s Office v.

Osborne, 557 U.S. at 62, 129 S.Ct. at 2316.

       In Osborne, the Supreme Court recognized that Osborne had under Alaska law a liberty

interest in demonstrating his innocence with new evidence under state law, and this state-created

right can give rise to rights to procedures essential to the realization of the parent right. Osborne,

557 U.S. at 68, 129 S.Ct. at 2319. The Supreme Court noted, however, that because Osborne

had been convicted after a fair trial, his right to procedural due process is not parallel to a trial

right. Id., 557 U.S. at 69, 129 S.Ct. at 2329. The court identified the question as being whether

consideration of Osborne’s claim within the framework of Alaska’s procedures for post-

conviction relief “offends some principle of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental,” or “transgresses any recognized principle of

fundamental fairness in operation.” Id., 557 U.S. at 69, 129 S.Ct. at 2320, quoting Medina v.

California, 505 U.S. 437, 4436, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). The Supreme

Court concluded that the procedures provided by Alaska are not inadequate in their application to

those who seek access to DNA evidence. Id., 557 U.S. at 69, 129 S.Ct. at 2320. In reaching this

conclusion, the Court noted that Alaska provides for discovery in post-conviction proceedings

and this procedure is made available to those seeking access to DNA evidence. Id., 557 U.S. at

70, 129 S.Ct. at 2320.


                                                -8-
        Chapter 64 provides a convicted person with procedures for obtaining DNA testing.

There is no statutory procedure for the appointment of an expert to assist the defendant, but the

statute does not prohibit it.6 The Court of Criminal Appeals has held that Article 64.01 does not

allow for the appellant to conduct a test that is merely a predicate to a subsequent DNA test.

Holberg v. State, 425 S.W.3d 282, 285 (Tex.Crim.App. 2014).                        It does not, for example,

authorize the appellant to conduct a preliminary test to determine if the item would be

susceptible to DNA testing. Id. This is precisely the relief Appellant seeks because he asked the

trial court to appoint an expert for the purpose of examining the evidence for the presence of

DNA.

        Neither the U.S. Supreme Court nor the Court of Criminal Appeals has held that Ake v.

Oklahoma should be extended to post-conviction DNA proceedings. Assuming for the sake of

argument that Ake applies to a DNA proceeding under Chapter 64, we conclude that the trial

court did not err by denying Appellant’s request for appointment of an expert because Appellant

failed to make the preliminary showing required by Ake. Appellant’s motion does not show

there is any reason to question the determination of the DNA analyst that there is no biological

material on the items submitted to the DPS lab. See Ehrke v. State, --- S.W.3d ---, 2015 WL

1823480 at *7 (Tex.Crim.App. April 22, 2015); Rey, 897 S.W.2d at 341.                        Because Appellant

was not entitled to the appointment of an expert under Ake, we conclude that Chapter 64 did not

operate unconstitutionally as applied to Appellant. We overrule Appellant’s sole issue and

6
  Chapter 64 places limitations on who may be ordered to conduct the DNA testing. If the convicting court finds in
the affirmative on the issues listed in Article 64.01(a)(1) and the convicted person meets the requirements of
subsection (a)(2), the court may order testing only by the Department of Public Safety, a laboratory operating under
contract with the department, or upon request of the convicted person, another laboratory if it is accredited under
Section 411.0205 of the Government Code. TEX.CODE CRIM.PROC.ANN. art. 64.03(c).
                                                       -9-
affirm the trial court’s order denying Appellant’s second motion for DNA testing.


June 23, 2015
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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