Affirmed and Opinion filed November 7, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00118-CR

                         AHMAD PEYRAVI, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 339th District Court
                            Harris County, Texas
                        Trial Court Cause No. 919251

                                 OPINION


      Appellant was convicted in 2003 of the murder of his girlfriend, and this
court affirmed his conviction. See Peyravi v. State, No. 14-03-00452-CR; 2004
WL 1834288 (Tex. App.—Houston [14th Dist.] Aug. 17, 2004, pet. ref’d) (not
designated for publication). This is an appeal from the trial court’s denial of
appellant’s post-conviction motion for DNA testing. In three issues, appellant
argues the trial court erred in failing to (1) send a copy of his motion to the State
for a response; (2) hold a hearing on his motion, and (3) appoint counsel for him.
We affirm.

      At his trial, appellant admitted stabbing his girlfriend, but argued he acted in
self defense. In affirming appellant’s conviction, we found sufficient evidence to
“support the implicit rejection of appellant’s self-defense claim beyond a
reasonable doubt.” Id. at *3.

      In his motion for DNA testing, appellant argued testing of the “brown handle
kitchen knife” would reveal that his blood is on the knife, and would demonstrate
that his deceased girlfriend was the initial aggressor, thus supporting appellant’s
self-defense claim. On appeal, appellant complains that the trial court did not
comply with the requirements of chapter 64 of the Texas Code of Criminal
Procedure before denying his motion for DNA testing.

      In his second issue, appellant argues that the trial court abused its discretion
by “ignoring appellant’s motion [for DNA testing]” and “fail[ing] to hold a hearing
to determine the issues…” We liberally construe appellant’s brief to include a
complaint that the trial court denied his motion. We review a trial court’s decision
on a motion for DNA testing under a bifurcated standard of review. Whitaker v.
State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We afford almost total deference
to the trial court’s determination of issues of historical fact and issues of
application of law to fact that turn on credibility and demeanor of witnesses.
Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo
other issues of application-of-law-to-fact questions that do not turn on the
credibility and demeanor of witnesses. Id.

      A trial court is required to order DNA testing only if the requirements of
Texas Code of Criminal Procedure article 64.03 are met, including the requirement
that “identity was or is an issue in the case.”        Tex. Code Crim. Proc. art.
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64.03(a)(1)(B); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
Appellant has not made the identity of the person who stabbed his girlfriend an
issue; he admits he stabbed her to death, but argues DNA testing will prove he
acted in self defense when he stabbed her.

      The purpose of DNA testing under article 64.03 is to provide an avenue by
which a defendant may seek to establish his innocence by excluding himself as the
perpetrator of the offense. See Blacklock v. State, 235 S.W.3d 231, 232–33 (Tex.
Crim. App. 2007) (exoneration by exclusion of a defendant as the DNA donor “is
precisely the situation in which the Legislature intended to provide post-conviction
DNA testing.”).    A trial court is not required to order DNA testing under
circumstances where, as here, the appellant admitted to being the perpetrator but
seeks to establish self-defense. See Lyon v. State, 274 S.W.3d 767, 769 (Tex.
App.—San Antonio 2008, pet. ref’d). Because identity was and is not an issue, the
trial court did not abuse its discretion in denying appellant’s motion for post-
conviction DNA testing.

      Appellant is correct that upon receipt of a motion for DNA testing, the trial
court must provide a copy of the motion to the prosecuting attorney, who, in turn,
must either “deliver the evidence to the court” or explain why this cannot be done.
Tex. Code Crim. Proc. art. 64.02. Presuming, without deciding, that the trial court
failed to forward appellant’s motion to the State, we conclude that any error was
harmless because the trial court properly denied appellant’s motion. See In re
McBride, 82 S.W.3d 395, 396 (Tex. App.—Austin 2002, no pet.).

      As to appellant’s contentions that he did not receive a hearing or
appointment of counsel, the trial court is required to conduct a hearing only after
examining the results of testing. Appellant is not entitled to a hearing on his
motion to order DNA testing. See id. at 397; see Tex. Code Crim. Proc. art. 64.04.

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Further, appellant’s entitlement to appointment of counsel for purposes of a post-
conviction DNA motion is conditioned on the trial court’s finding that reasonable
grounds exist for filing the motion. See Ex parte Gutierrez, 337 S.W.3d 883, 889
(Tex. Crim. App. 2011). Because identity was not at issue, appellant has failed to
set forth reasonable grounds for filing the motion; therefore, the trial court’s denial
of appellant’s request for appointment of counsel was not error.

      Because the trial court properly denied appellant’s motion for post-
conviction DNA testing, the court’s alleged failure to forward the motion to the
State was harmless. Similarly, the court’s alleged failure to hold a hearing on the
motion or appoint an attorney was not error. We overrule appellant’s three issues
and affirm the judgment of the trial court.




                                        /s/       Martha Hill Jamison
                                                  Justice



Panel consists of Chief Justice Kem Thompson Frost and Justices Boyce and
Jamison.
Publish — TEX. R. APP. P. 47.2(b).




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