                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-19-00052-CR


                           EDWIN LOUIS AKES, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 46th District Court
                                   Wilbarger County, Texas
                 Trial Court No. 12,149, Honorable Dan Mike Bird, Presiding

                                       July 2, 2019

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Edwin Louis Akes was convicted by a jury of the offense of aggravated

robbery.1    Punishment was assessed by the trial court at seventy-five years of

imprisonment in the Institutional Division of the Texas Department of Criminal Justice. 2




      1   TEX. PENAL CODE ANN. § 29.03(a)(3) (West 2018).
      2 On appellant’s direct appeal, we have affirmed his conviction. Akes v. State, No.
07-17-00402-CR, ___ Tex. App. LEXIS ___ (Tex. App.—Amarillo June 28, 2019, no pet.
h.) (mem. op., not designated for publication).
Appellant subsequently filed a motion for DNA testing. The trial court denied that motion

and appellant now appeals its denial.


                                        Background


      The record of appellant’s DNA motion contains a portion of the testimony from the

trial of his aggravated robbery offense. The offense occurred when appellant inflicted

injuries on Dan Robinson by beating him with a BB pistol and took Robinson’s wallet. A

child’s baseball bat also was at the scene. Robinson and other witnesses identified

appellant as the robber.


      After his conviction in October 2017, and represented by appointed counsel,

appellant in November 2018 filed a motion pursuant to Chapter 64 of the Code of Criminal

Procedure, requesting DNA testing of three items having, he alleged, a reasonable

likelihood of containing biological material. The items are the baseball bat, Robinson’s

wallet, and the BB gun.3


      The State filed a notice, supported by affidavit, acknowledging that the baseball

bat and the BB gun were available for testing, and potentially could contain biological

evidence, but stating that the wallet had been returned to Robinson on the date of the

offense and was not available for testing.4 The State also filed a reply to appellant’s




      3  “A convicted person may submit to the convicting court a motion for forensic DNA
testing of evidence that has a reasonable likelihood of containing biological material. 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).
      4   Article 64.02 states:
      (a) On receipt of the motion, the convicting court shall:
                                            2
motion in which it argued the requirements for testing set out in article 64.03 were not met

for the baseball bat and the gun because, among other reasons, appellant’s identity as

the robber was not at issue in the case. See TEX. CODE CRIM. PROC. ANN. art. 64.03

(setting forth requirements for forensic DNA testing). The court first set a hearing on

appellant’s motion but later vacated that hearing. It then decided the matter based on the

pleadings filed.


                                         Analysis


       Appellant challenges the trial court’s denial of his motion for DNA testing through

three issues.


Violation of Constitutional Right to Due Process


       In his first two issues, appellant contends the trial court violated his due process

rights under both the United States and Texas Constitutions when it denied his motion for

DNA testing without holding a hearing.




        (1) provide the attorney representing the state with a copy of the motion;
        and
        (2) require the attorney representing the state to take one of the following
        actions in response to the motion not later than the 60th day after the date
        the motion is served on the attorney representing the state:
          (A) deliver the evidence to the court, along with a description of the
          condition of the evidence; or
          (B) explain in writing to the court why the state cannot deliver the
          evidence to the court.
       (b) The convicting court may proceed under Article 64.03 after the response
       period described by Subsection (a)(2) has expired, regardless of whether
       the attorney representing the state submitted a response under that
       subsection.
TEX. CODE CRIM. PROC. ANN. art. 64.02.
                                             3
       Appellant acknowledges that article 64.03 does not require the court to hold a

hearing before ruling on a motion for testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03.

“Article 64.03 does not require any evidentiary hearing before the trial judge decides

whether a convicted person is entitled to DNA testing.” Ex parte Gutierrez, 337 S.W.3d

883, 893 (Tex. Crim. App. 2011). See also Thompson v. State, 123 S.W.3d 781, 785

(Tex. App.—Houston [14th Dist.] Dec. 11, 2003, pet. ref’d) (article 64.03 “does not require

an evidentiary hearing to determine whether DNA evidence exists”).           The court is

permitted to make a decision on a motion for forensic DNA testing based on the motion

and the State’s written response. Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d).


       Appellant nonetheless contends that a statute’s failure to provide for a hearing

does not override or negate any constitutionally required procedure, which may include a

hearing. He argues the trial court’s failure to hold a hearing on his motion violated his

due process rights under the Fourteenth Amendment even though article 64.03 does not

specify the need for a hearing. He further argues the hearing requirement under article

64.04 of the statute shows the necessity of holding a hearing to make the required findings

under article 64.03 and to afford to appellant his due process rights.


       We cannot agree with appellant’s contention. See Ex parte Gutierrez, 337 S.W.3d

at 889 (“[t]here is no free-standing due-process right to DNA testing”) (citing District

Attorney’s Office v. Osborne, 557 U.S. 52, 62 (2009)). In Gutierrez, the Court of Criminal

Appeals made clear that efforts to obtain DNA testing under Chapter 64 do not involve

“constitutional considerations.” Id. at 892-93. See also Kinney v. State, No. 08-11-00128-

CR, 2012 Tex. App. LEXIS 2751, at *5 (Tex. App.—El Paso April 4, 2012, pet. ref’d), cert.

denied, 569 U.S. 960 (2013) (holding trial court did not violate defendant’s federal and
                                             4
state due process rights by failing to hold evidentiary hearing under article 64.03 to

determine whether the defendant was entitled to post-conviction DNA testing); Toney v.

State, No. 01-11-00375-CR, 2012 Tex. App. LEXIS 2863, at *13 n.3 (Tex. App.—Houston

[1st Dist.] April 12, 2012, no pet) (mem. op., not designated for publication) (discussing

Gutierrez).


       We resolve appellant’s first and second issues against him.


Error in Denying Motion for DNA Testing


       In his third issue, appellant argues the trial court committed reversible error when

it denied his motion for DNA testing.


       We review a trial court’s decision to deny a motion for post-conviction DNA testing

under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.

2002). We thus “afford almost total deference to a trial court’s determination of issues of

historical fact and application-of-law-to-fact issues that turn on credibility and demeanor,

while we review de novo other application-of-law-to-fact issues.” Id. (citing Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). But, “when the trial record and the

convicted person’s affidavit are the only sources of information supporting the motion, the

trial court is in no better position than an appellate court in making the determination, and

accordingly, appellate courts review the issues de novo.” Aekins v. State, No. 03-16-

00598-CR, 2017 Tex. App. LEXIS 4724, at *16-17 (Tex. App.—Austin May 25, 2017, pet.

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

because no witnesses were called during hearing on request for DNA testing, appellate

court should conduct review de novo)).



                                             5
       Appellant’s argument on appeal posits that if Robinson’s wallet was tested, his

DNA would not be found and would “establish that he did not commit ‘aggravated robbery’

under the facts of this case.”5 Appellant does not, in this proceeding, challenge the State’s

response that the wallet was returned to Robinson and is therefore unavailable for testing.


       The trial court did not abuse its discretion in denying appellant’s motion to test the

wallet because appellant did not satisfy article 64.03(a)(1)(A)(ii).6 TEX. CODE CRIM. PROC.


       5  Appellant’s argument focuses only on the potential testing of the victim’s wallet
and does not address the baseball bat or the BB gun. He contends “that the absence of
his DNA on the victim’s ‘wallet’ would more likely than not cause the jury to return a
different verdict (A verdict that Appellant did not rob said victim).” The record likely
explains appellant’s focus on the wallet to the exclusion of the bat and the gun. Exhibits
attached to the State’s response to appellant’s motion for DNA testing describe
appellant’s conversations after the offense with a detective and with an investigator for
the district attorney’s office. Cf. Gutierrez, 337 S.W.3d at 892-93 (rejecting challenge to
court’s consideration of written statements during Chapter 64 proceeding, though
statements were inadmissible at criminal trial). Appellant’s version of events told that day
admitted his presence at the scene and painted Robinson as the aggressor. Appellant
admitted contact with the gun and the baseball bat but denied seeing Robinson’s wallet.
       6 To succeed on his claim, appellant must satisfy the requisites of article 64.03(a).
It provides:
       (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;
            (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:
                                               6
ANN. art. 64.03(a)(1)(A)(ii) (setting forth requirement that the requested item 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); see also Prible v. State, 245

S.W.3d 466, 467 (Tex. Crim. App. 2008) (one requirement under article 64.03 is that the

defendant show unaltered evidence is available for testing).


       We overrule appellant’s third issue.


                                        Conclusion


       The trial court did not err in denying appellant’s motion for forensic DNA testing.

We affirm the judgment of the trial court.



                                                       James T. Campbell
                                                          Justice

Do not publish.




          (A) the person would not have been convicted if exculpatory results had
          been obtained through DNA testing; and
          (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).
                                              7
