Affirmed and Memorandum Opinion filed December 20, 2012.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00482-CR


                 LAWRENCE WAYNE ATKINS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 23rd District Court
                         Brazoria County, Texas
                       Trial Court Cause No. 34410


                MEMORANDUM                       OPINION


      Appellant Lawrence Wayne Atkins appeals from the trial court’s order
denying his motion for DNA testing. We affirm.

                                    Background

      Appellant was convicted of aggravated sexual assault and prohibited sexual
conduct. This court affirmed his convictions in 2001. Atkins v. State, 14-98-
01368-CR; 2001 WL 459877 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Appellant was convicted of sexually assaulting his mother. He consented to giving
DNA samples, which were matched with the specimens taken from the victim.
Appellant confessed the crime to a neighbor and an investigating officer.

      In the appeal of his conviction, appellant challenged the sufficiency of the
evidence to support his conviction. Id. at *5. Appellant claimed that absent the
confession and the blood and hair specimens, the only evidence the State had was
the unsworn statement of the victim who repudiated her statement in court. Id.
This court determined appellant’s confession and blood and hair specimens were
admissible. Further, this court determined the evidence was sufficient to support
appellant’s conviction. Id.

      On January 20, 2012, appellant filed a motion to request forensic DNA
testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. In his
motion, appellant alleged the DNA tests were incorrectly performed. The trial
court denied appellant’s motion finding identity was not an issue and appellant
failed to show reasonable grounds for the appointment of counsel as required by
article 64.01(c) of the Code of Criminal Procedure. On appeal, appellant asserts he
is entitled to DNA testing because he has met all the statutory requirements of
article 64.01.

                         Chapter 64 and the Standard of Review

      Under Texas Code of Criminal Procedure chapter 64, a convicted person
may submit to the convicting court a motion for forensic DNA testing of evidence
containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a). To order
testing, the court must first find that identity was or is an issue in the case. See id.
art. 64.03(a)(1).     Moreover, the convicted person must establish by a
preponderance of the evidence that he would not have been convicted if
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exculpatory results had been obtained through DNA testing, and that the request
for the proposed DNA testing is not made to unreasonably delay the execution of
sentence or administration of justice. Id. art. 64.03(a)(2).

      An indigent convicted person who intends to file a motion for post-
conviction DNA testing has a limited right to appointed counsel conditioned on the
trial court’s finding “that reasonable grounds exist for the filing of a motion.”
Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010). Appointment of
counsel in a post-conviction DNA proceeding is determined by three criteria: (1)
defendant must inform the convicting court that he wishes to submit a motion for
DNA testing; (2) the convicting court must find that “reasonable grounds” exist for
filing a DNA motion; and (3) the convicting court must find that the movant is
indigent. Id. If all of the prerequisites set out above are met, the convicting court
must order testing. Then, after “examining the results of testing under Article
64.03, the convicting court must hold a hearing and make a finding as to whether,
had the results been available during the trial of the offense, it is reasonably
probable that the person would not have been convicted.” Tex. Code Crim. Proc.
Ann. art. 64.04.

      In reviewing the trial court’s Chapter 64 rulings, this court gives almost total
deference to the court’s findings of historical fact and application-of-law-to-fact
issues that turn on witness credibility and demeanor, but we consider de novo all
other application-of-law-to-fact questions. Routier v. State, 273 S.W.3d 241, 246
(Tex. Crim. App. 2008).

                                   Identity Not an Issue

      Appellant argues on appeal that he has met the requirements of chapter 64
for DNA testing. He argues that modern DNA testing methods may yield a
different result than the results admitted in his trial in 1998. A trial court must
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order DNA testing only if the statutory requirements of article 64.03 are met, that
is, only if (1) the evidence still exists and identity was or is an issue in the case;
and (2) the convicted person establishes by a preponderance of the evidence that
the person 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). If identity was not or is not still an issue
in the case, then the trial court cannot order DNA testing. Reger v. State, 222
S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d). Identity must be in
question without considering the possible results of DNA testing. Bell v. State, 90
S.W.3d at 308. In Bell, the Court of Criminal Appeals held that identity was not an
issue, regardless of the defendant's plea of not guilty, because the defendant
confessed to the charged offense. Id.

      In his motion in the trial court, appellant alleged that DNA testing results
“would produce a 51% or more likelyhood [sic] that the charge in the indictment is
incorrect or it would establish and confirm the alleged charge as true.” In his
affidavit attached to the motion, appellant alleges that his identity is at issue
because “the elements of the States [sic] indictment were not proven by ‘DNA
testing.’” In its response, the State referred to the record of appellant’s trial in
which the investigating officer and the victim’s neighbor testified that the victim,
appellant’s mother, told them that appellant sexually assaulted her twice. At trial,
the victim stated she did not remember what happened, that appellant was
intoxicated, and she could not recall being sexually assaulted. She remembered
that appellant threatened to assault her, but testified that she fabricated the charge
to get her son out of her house. She admitted telling her neighbor that appellant
sexually assaulted her, but also testified that she did not want her son to go to
prison. Appellant gave a detailed, written confession to police admitting the sexual


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assault. Sperm samples obtained from the victim’s vagina and rectum matched
appellant’s DNA, as did sperm samples obtained from a blanket in the victim’s
home.     A Department of Public Safety crime lab analyst testified that the
probability that the DNA would belong to someone else was one in 840
Caucasians. In denying appellant’s motion for DNA testing, the trial court found
that appellant “failed to establish that identity is or was an issue in the case.”

        Because appellant confessed to sexually assaulting his mother, identity was
not an issue in his conviction. See Bell, 90 S.W.3d at 308; Baggett v. State, 110
S.W.3d 704, 707 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (identity not
an issue when appellant admitted being with victim and perpetrating a crime, but
did not admit sexual assault). Moreover, DNA results admitted at appellant’s trial
showed that he was the individual who committed the offense. Therefore, the trial
court was not required to order DNA testing.

                                  Appointment of Counsel

        Appellant contends that the trial court abused its discretion by refusing to
appoint counsel to assist him in seeking post-conviction forensic DNA testing.

        Article 64.01(c) provides that a trial court

        shall appoint counsel for the convicted person if the person informs
        the court that the person wishes to submit a motion under [Chapter
        64], the court finds reasonable grounds for a motion to be filed, and
        the court determines that the person is indigent.

Tex. Code Crim. Proc. Ann. art. 64.01(c).

        An indigent convicted person intending to file a motion for post-conviction
DNA testing now has a limited right to appointed counsel. Ex parte Gutierrez, 337
S.W.3d 883, 889 (Tex. Crim. App. 2011). Though a convicted person need not
prove entitlement (or a prima facie case of it) to DNA testing as a precondition for
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obtaining appointed counsel, whether “reasonable grounds” exist for testing
necessarily turns on what is required for testing. Id. at 891. Basic requirements
are that biological evidence exists, that evidence is in a condition that it can be
tested, that the identity of the perpetrator is or was an issue, and that this is the type
of case in which exculpatory DNA results would make a difference. Tex. Code
Crim. Proc. Ann. art. 64.03(a)(1)(A)(i).

      Because identity was not an issue, appellant did not demonstrate reasonable
grounds for the motion to be filed. Thus, the trial court was not required to appoint
counsel to represent him. Appellant’s issues on appeal are overruled.

      The judgment of the trial court is affirmed.


                                                PER CURIAM



Panel consists of Justices Seymore, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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