             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00120-CR
      ___________________________

  AUSTIN TAYLOR COPPLE, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 2
           Tarrant County, Texas
        Trial Court No. 1411370D


Before Sudderth, C.J.; Gabriel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                            MEMORANDUM OPINION

                                   I. INTRODUCTION

       Appellant Austin Taylor Copple moved for post-conviction DNA testing under

Chapter 64 of the Code of Criminal Procedure. In one issue, Copple argues that the

trial court erred by denying his motion. We will affirm.

                                   II. BACKGROUND

       A jury found Copple guilty of aggravated assault with a deadly weapon and

assessed punishment at seventy-five years’ incarceration, and this court affirmed,

holding in part that the evidence was sufficient to support the jury’s verdict. See

Copple v. State, No. 02-16-00197-CR, 2017 WL 1287544 (Tex. App.—Fort Worth Apr.

6, 2017, pet. ref’d) (mem. op., not designated for publication). Many of the facts

recited here are also recited in that opinion. Id.

       Lance Boltz, a Bedford resident, owned a home repair and landscaping

business. Copple occasionally worked for Boltz and lived with him for about a

month. Near 2 a.m. one day in the spring of 2015, after Copple had stopped living

with Boltz, Copple called Boltz and asked him to drive Copple to a job later that

morning. Boltz agreed to do so and picked Copple up from a house in North

Richland Hills. They both returned to Boltz’s house. According to Boltz, he told

Wesley Price, another houseguest, about Copple’s presence there, although Price said

that he was unaware of Copple’s presence and never saw him in the house. Boltz

then allegedly went into his room and fell asleep.

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      Later, Boltz awoke when someone began repeatedly striking his head. Through

some light coming from a fish aquarium, Boltz saw a silhouette of his attacker and of

a machete that Boltz recognized as one that he used in his lawn service business.

Boltz raised his hands to protect against the blows, but the attacker hit his hands with

the machete, and Boltz blacked out.

      When Boltz regained consciousness, he noticed that he was bleeding. He got

out of his bed and attempted to shut and lock his bedroom door, but someone again

began striking his head. From the limited light in the room, including the aquarium

light and light from a neighbor’s house, Boltz recognized Copple as the attacker. By

Boltz’s account, Copple was wearing the same clothes as when Boltz had picked him

up, including a dark shirt and a hunting vest. As Copple continued striking Boltz,

Boltz again blacked out.

      When Boltz came to, he walked into a bathroom, locked the door, and realized

that he had “a lot of blood profusely pouring down the front of [his] face.” Price

awoke and came to the bathroom, and Boltz asked Price to get help. Price noticed

that Boltz’s Samsung cell phone was missing, and Price went to another house to call

911. An ambulance arrived and transported Boltz to a hospital, where he received

treatment for injuries to several parts of his body.

      Police officer Michael Kratky interviewed Boltz at the hospital. Kratky saw

that Boltz had several injuries and had been bleeding. Boltz told Kratky that Copple

had attacked him. At about 7 a.m. that day, Detective Anthony Shelly received a call

                                            3
about the assault. He went to Boltz’s house and saw blood covering floors, pillows,

and sheets.

      Without any knowledge of what had occurred at Boltz’s house, Officer Rodney

Pace was working in Hurst and received a call about a man engaging in suspicious

acts, including looking into a vehicle whose owner had left the vehicle running with

the door open and looking through a mailbox, at a location that was within walking

distance of Boltz’s house. Pace found Copple, who matched the description given in

the call. According to Pace, Copple was “scratched up,” had no shoes on, and “was

obviously high on some kind of drug.” Copple could not provide a sensible story

about why he was there.

      Investigator Zachary Hicks became involved in the investigation into the

assault on Boltz. Looking for evidence related to the assault, he walked on a path

from Boltz’s house to where Pace had found Copple. In a drainage area along that

path, he found a machete, a Samsung cell phone battery, and a package of bandages

that matched a bandage that Copple had in his pocket upon his arrest.

      When Boltz returned home from the hospital weeks later, he found the shirt

and vest that Copple had worn on the morning of the assault. Those items were

“caked in blood.” He also found the shoes that Copple had been wearing that

morning.1


      1
        In the factual background section of this court’s opinion related to Copple’s
direct appeal, the opinion states that Boltz found the shoes and clothing that Copple

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       Later, Hicks and another officer identified in the record only as “C. Regan”

interviewed Copple. In the interview, Copple admitted that he had been at Boltz’s

house that morning. Copple told the interviewing officers that Boltz was acting weird

and making sexual advances toward him, which made him feel uncomfortable.

Copple said that he had left the house to buy some cigarettes even though he had no

money. According to Regan, when he told Copple that Boltz had been assaulted,

Copple’s demeanor “completely changed.” In response to this statement, Copple

allegedly looked down, became quiet, and told the officers that he had been in Boltz’s

bedroom that morning and that Boltz had continued to make sexual advances toward

him.   As Copple explained his presence in Boltz’s bedroom, Regan noted that

“Copple had his hands and fingers, twisted and intertwined, as well as his feet and legs

intertwined, as he was bending over at the waist.” Regan stated that this was a

significantly different posture than Copple had during the initial part of the interview,

where, according to Regan, Copple’s posture was “normal.” Regan also said that this

part of the conversation made Copple very nervous, prompting Copple to ask for a

lawyer. During the interview, Copple also said that he had used methamphetamine

the night before Boltz brought him to the house.

had worn “that night.” Copple, 2017 WL 1287544 at *2. But later, in the analysis
section of the opinion, the opinion describes Boltz’s having found the clothes that
Copple “had been wearing on the morning of the attack, and those clothes were
‘caked in blood.’” Id. at *3. The record indicates that although it was dark outside,
Boltz picked up Copple from his mother’s house “[n]ear 2 a.m.” Id. at *1. Because
Boltz and Copple’s interaction leading up to and including the assault all occurred in
the early morning hours, we will use the term “morning” in this opinion.

                                           5
        After his conviction, Copple sought DNA testing under Chapter 64 of the

Code of Criminal Procedure. Specifically, Copple sought the testing of swabs taken

from the machete, small hairs found on the machete, and swabs taken from his own

hands. The trial court denied Copple’s motion. In its findings of fact, among other

findings, the trial court specifically found that:

        • Significant non-biological evidence establishes Copple’s guilt.

        • Boltz used machetes in his landscaping business and kept them hanging on
          his garage wall.

        • The machete found by police was recovered in a concrete drainage ditch
          used by people to traverse the area.

        • There is a tremendous likelihood of non-involved, third-party DNA being
          recovered from the machete.

        • The absence of any probative DNA from Copple’s hand swabs is not
          exculpatory because the evidence suggests Copple had already attempted to
          clean his hands.

        • Copple cannot show by a preponderance of the evidence that, even if
          exculpatory results were obtained from DNA testing of this evidence, there
          is a greater than 50% likelihood that he would not have been convicted
          given the non-biological evidence establishing his guilt.

        • Copple failed to meet the requirements of Article 64.03 for post-conviction
          forensic DNA testing.

        In its conclusions of law, among other conclusions, the trial court concluded

that:

        • Given the significant non-biological evidence that Copple committed this
          aggravated assault with a deadly weapon and the tremendous likelihood of
          non-involved, third-party DNA on the machete, the defendant cannot

                                              6
          demonstrate by a preponderance of the evidence that, even if exculpatory
          results were obtained, there exists a greater than 50% likelihood that he
          would not have been convicted even if exculpatory results are obtained.

      • Copple does not meet the requirements of Article 64.03 for post-conviction
        forensic DNA testing because he has not shown by a preponderance of the
        evidence that forensic DNA testing would establish a reasonable probability
        of his non-conviction.

      • Copple’s motion for forensic DNA testing is denied.

                                  III. DISCUSSION

      In one issue, Copple argues that the trial court erred by denying his Chapter 64

motion for testing of swabs from the machete, hairs from the machete, and swabs

from his hands. He also appears to argue that the trial court erred by denying his

motion without holding a hearing. We disagree.

A.    Standard of Review

      We review the trial court’s decision with regard to DNA testing using a

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

2002). We afford almost total deference to the trial court’s determination 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.

B.    Applicable Law

      Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted

person may file a motion for DNA testing in the convicting court. Tex. Code Crim.

Proc. Ann. art. 64.01(a-1). The motion must be accompanied by a sworn affidavit


                                           7
containing supporting facts. Id. The convicting court may order DNA testing if it

finds that: (1) evidence still exists, is in a condition making DNA testing possible, and

is subject to a chain of custody sufficient to establish that it has not been altered;

(2) identity was or is an issue in the movant’s case; and (3) the movant established by a

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

results had been obtained through DNA testing and the request is not made to

unreasonably delay the sentence. Tex. Code Crim. Proc. Ann. art. 64.03(a); Prible v.

State, 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008); Thompson v. State, 95 S.W.3d

469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      Under Article 64.03, a convicted person is not entitled to DNA testing unless

he first shows that there is “greater than a 50% chance that he would not have been

convicted if DNA testing provided exculpatory results.”             Ex parte Gutierrez,

337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (quoting Prible, 245 S.W.3d at 467–68);

see also Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). This burden is met

“if the record shows that exculpatory DNA test results, excluding the defendant as

the donor of the material, would establish, by a preponderance of the evidence, that

the defendant would not have been convicted.” Gutierrez, 337 S.W.3d at 899. “A

‘favorable’ DNA test result must be the sort of evidence that would affirmatively cast

doubt upon the validity of the inmate’s conviction; otherwise, DNA testing would

simply ‘muddy the waters.’” Id. at 892.



                                           8
      Generally, a movant does not satisfy his burden under Article 64.03 if “the

record contains other substantial evidence of guilt independent of that for which the

movant seeks DNA testing.” Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim.

App. 2010); see also Dunning v. State, 572 S.W.3d 685, 698 (Tex. Crim. App. 2019)

(“When the true exculpatory value of the test results are weighed against all of the

inculpatory evidence, we conclude that Appellant has not shown that, had the results

been available during the trial of the offense, it is reasonably probable that he would

not have been convicted.”). Moreover, when physical evidence is collected from a

common area and could have been left by any of a number of people, meaning that

DNA test results excluding the movant as the source would not also exclude the

movant as the assailant, the movant has failed to meet the statutory requirements for

post-conviction DNA testing of that evidence. See Cate v. State, 326 S.W.3d 388, 390

(Tex. App.—Amarillo 2010, pet. ref’d); see also Pegues v. State, 518 S.W.3d 529, 535

(Tex. App.—Houston [1st Dist.] 2017, no pet.) (discussing the different situations in

which Article 64.03 statutory requirements are met and when they are not). And

when articles have been washed or cleaned in some manner, they are not considered

probative of a movant’s innocence. See Rivera, 89 S.W.3d at 60 n.20 (“The absence of

appellant’s DNA from any anal samples (if they existed) would also be unhelpful in

establishing appellant’s innocence, as the incriminating evidence could have been

washed away during the time the child’s body was in water.”); see also Baylor v. State,

No. 02-10-00561-CR, 2011 WL 4008026, at *1 (Tex. App.—Fort Worth Sept. 8, 2011,

                                          9
no pet.) (mem. op., not designated for publication) (holding that trial court properly

denied DNA testing on stocking cap possibly washed in time before its seizure

because the absence of DNA results would not create a probability of non-

conviction).

C.    Substantial Evidence of Copple’s Guilt

      Here, the trial court specifically found that Copple could not show by a

preponderance of the evidence that, even if exculpatory results were obtained from

DNA testing of the evidence he requested, there was a greater than 50% likelihood

that he would not have been convicted given the non-biological evidence establishing

his guilt. Indeed, when Pace found Copple, he was within walking distance of Boltz’s

house, covered in scratches, and without shoes. A reasonable inference, which the

jury at trial was free to believe, was that the scratches occurred as Copple attacked

Boltz with the machete.

      That Copple was Boltz’s assailant was further bolstered by the fact that Boltz

later found the shoes that Copple had been wearing the morning of the attack. He

also found the blood-covered clothes that Boltz said that Copple had been wearing

that morning and during the attack. The reasonable inference from this evidence is

that after attacking Boltz but before walking away from the house, Copple had

removed his clothing and shoes because of the blood contained on them. Further, on

the path from Boltz’s house to where Pace found Copple, police found a machete and

bandages that matched a bandage that Copple had in his pocket upon his arrest. The

                                         10
police also found a Samsung cell phone battery, and the jury heard that Boltz’s

Samsung phone was missing after the attack. And most significantly, Boltz identified

Copple, a person he had known for several years, as his attacker. See Threadgill v. State,

146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (relying on eyewitness testimony as

sufficient to show a defendant’s identity as a shooter).

       Citing the Texas Court of Criminal Appeals decision in Blacklock v. State,

235 S.W.3d 231 (Tex. Crim. App. 2007), Copple argues that the fact that Boltz

identified him as the assailant does “not refute his contention that DNA testing could

prove his innocence by showing the attacker was another person.” But Copple’s

reliance on Blacklock is misplaced. In Blacklock, “[t]he victim knew [Blacklock] and

identified him . . . as the one who robbed and sexually assaulted her,” and the

evidence regarding “DNA testing . . . was inconclusive on the issue of identity.” Id. at

232.   Several years after his conviction, Blacklock filed a motion seeking post-

conviction DNA testing “of semen left by the victim’s attacker on the victim’s pants

and panties” and retesting of the semen sample collected “from the victim’s vaginal

smears.”     Id.   When making this request, Blacklock demonstrated, “by a

preponderance of the evidence, that the victim’s lone attacker [was] the donor of the

material for which [Blacklock sought] DNA testing.” Id. Accordingly, the Court of

Criminal Appeals determined that “on th[at] record, exculpatory DNA test results,

excluding [Blacklock] as the donor of this material, would have established



                                           11
[Blacklock’s] innocence” even though “the victim testified that she knew [him] and

identified him as her attacker.” Id. at 232, 233.

      Here, unlike in Blacklock where Blacklock demonstrated that only one potential

person could have left DNA, the trial court specifically found that because the

machete was recovered in a concrete drainage ditch used by people to traverse the

area, there was “a tremendous likelihood of non-involved[,] third-party DNA being

recovered from the machete.” See Weems v. State, 550 S.W.3d 776, 780 (Tex. App.—

Houston [14th Dist.] 2018, no pet.) (“If testing were used to show no DNA evidence

from appellant on the tool, it may mean any number of things: he wore gloves; wiped

the tool off; or did not leave a sufficient DNA sample to be analyzed. If another

person’s DNA is found on the tool, it could mean that the object was in a location

others came into contact with it.”). The trial court further found in this case that the

absence of any probative DNA from Copple’s hand swabs would not be exculpatory

because the evidence suggested that Copple “had already attempted to clean his

hands” prior to the swabs being taken. See Rivera, 89 S.W.3d at 60 n.20.

      We conclude and hold that the trial court did not err by finding that—given the

significant, non-biological evidence that Copple committed the aggravated assault

with a deadly weapon and the tremendous likelihood of non-involved, third-party

DNA on the machete—Copple cannot demonstrate by a preponderance of the

evidence that, even if exculpatory results were obtained, there exists a greater than

50% likelihood that he would not have been convicted even if exculpatory results

                                            12
were obtained. See Prible, 245 S.W.3d at 470 (affirming a trial court’s denial of

postconviction DNA testing because “even if the evidence was retested and

determined to contain another person’s DNA in addition to [the defendant’s] DNA, it

would not establish by [a] preponderance of the evidence that [the defendant] would

not have been convicted”). Thus, the trial court did not err by denying Copple’s

motion for Article 64.03 DNA testing. We overrule this portion of Copple’s sole

issue.

D.       No Hearing Required

         In the remainder of his sole issue, Copple seems to argue that the trial court

erred by not holding a hearing regarding his Article 64.03 motion. See Tex. Code

Crim. Proc. Ann. art. 64.03 (detailing the procedures for when a trial court may order

post-conviction, forensic DNA testing). We disagree. As the Court of Criminal

Appeals has made clear, an Article 64.03 proceeding is not a “criminal trial.” Gutierrez,

337 S.W.3d at 893. As such, Article 64.03 “does not require any evidentiary hearing

before the trial judge decides whether a convicted person is entitled to DNA testing.”

Id. Thus, the trial court did not err by not conducting an evidentiary hearing before

denying Copple’s motion. See Rivera, 89 S.W.3d at 58–59 (stating that Article 64.03

does not require a hearing of any sort concerning the convicting court’s determination

of whether a convicted person is entitled to DNA testing).            We overrule the

remainder of Copple’s sole issue.



                                           13
                               IV. CONCLUSION

      Having overruled Copple’s sole issue on appeal, we affirm the trial court’s

judgment.

                                                 /s/ Dana Womack

                                                 Dana Womack
                                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 9, 2020




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