AFFIRM; and Opinion Filed January 30, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00743-CR
                                      No. 05-14-00744-CR

                               JOHN WILL WEBB, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                  Dallas County, Texas
                   Trial Court Cause Nos. F85-88094-H and F85-98761-H

                             MEMORANDUM OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                Opinion by Justice Lang-Miers
       John Will Webb and his brother, Clinton Webb, were convicted of aggravated robbery

and murder of an Exxon self-service gas station manager in 1985. John was sentenced to life in

prison for the murder and, pursuant to a plea bargain, twenty years in prison for the aggravated

robbery. In 2012, the trial court appointed one lawyer to represent both appellant and his brother

on a motion for post-conviction forensic DNA testing pursuant to Chapter 64 of the Texas Code

of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05 (West 2006 & Supp.

2014). Appointed counsel filed a combined formal motion for both appellant’s and his brother’s

respective two cases. The trial court ordered mitochondrial DNA testing of loose hair found in

the victim’s hand, but did not order DNA testing of two firearms and spent bullets. On appeal,

appellant argues that the trial court erred by denying DNA testing of the firearms and spent
bullets. We resolve appellant’s sole issue against him. We issue this memorandum opinion

because all dispositive issues are settled by law. 1 TEX. R. APP. P. 47.4.

                                                      Standard of Review

          We review a trial court’s decision on 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). “[W]e

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.

                                                         Applicable Law

          Article 64.01 of the code of criminal procedure states that a convicted person may file a

motion for DNA testing of evidence containing biological material. TEX. CODE CRIM. PROC.

ANN. art. 64.01(a–1). It defines “biological material” as “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[.]” Id. art. 64.01(a)(1). The convicted person is required to file an affidavit with the

motion, “sworn to by the convicted person, containing statements of fact in support of the

motion.” Id. art. 64.01(a–1).

          Upon receiving the convicted person’s motion, the trial court must notify the State and

require the State to “deliver the evidence to the court, along with a description of the condition of

the evidence” or “explain in writing to the court why the State cannot deliver the evidence to the

court.” Id. art. 64.02(a). The trial court may order DNA testing if certain conditions are met. Id.

art. 64.03(a).          Among those conditions is that the convicted person “establishes by a



   1
       We are simultaneously issuing our opinion in appellant’s brother’s appeals, case nos. 05-14-00746-CR and 05-14-00747-CR.



                                                                   –2–
preponderance of the evidence that . . . [he] would not have been convicted if exculpatory results

had been obtained through DNA testing[.]” Id. art. 64.03(a)(2)(A).

                                            Discussion

        Appellant formally moved for DNA testing of “evidence containing biological material”

without referring to any specific evidence in the case. In his affidavit attached to the motion,

appellant did not refer to any specific evidence, but declared, “The ultimate question in this case

was whether I . . . committed the offense of murder . . . . There is a reasonable probability that it

would show that I did not commit this offense if testing was performed on the biological

material.” The affidavit did not contain statements of fact to support why appellant thought

DNA testing of the evidence would show he did not commit the offense.

        After receiving notice of appellant’s motion, the State reported to the trial court that the

evidence in the case consisted of loose hair found in the victim’s hand, the victim’s head-hair

standard, two firearms, and spent bullets. The State did not oppose testing of the hair found in

the victim’s hand, but it did oppose testing of the firearms and spent bullets. The State argued

that appellant had not established there was biological evidence available for testing on the

firearms and spent bullets, and, even if he had, he did not show “that there is at least a 51%

chance that the jury would not have convicted him had it been aware of the presumptively

favorable test results.”

        The trial court signed an order granting mitochondrial DNA testing of the loose hair

found in the victim’s hand.        After the results came back that “no amplifiable human

mitochondrial DNA was observed for the hairs from the victim’s hand,” the court issued its

finding that “had these results been available during the trials of these offenses, it is NOT

reasonably probable that [appellant] would not have been convicted.”




                                                –3–
       On appeal, appellant argues that the trial court erred by denying his motion for DNA

testing of the firearms and spent bullets. But appellant does not cite where he asked the court for

DNA testing of the firearms and spent bullets. Appellant’s written motion did not specifically

request DNA testing of those items, and because there is no record of a hearing on appellant’s

motion in our appellate record, the record does not show that he orally moved for testing of those

items. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (because different

motions asked for testing of different evidence, court “not entirely clear as to what evidence

appellant wants tested”).

       Additionally, the order did not deny testing of the firearms and spent bullets and, in fact,

did not refer to that evidence at all. Consequently, the record does not reflect that appellant

asked for or got a ruling on his request. See Shannon v. State, 116 S.W.3d 52, 54–55 (Tex. Crim.

App. 2003) (rules of preservation apply to motions for post-conviction DNA testing). And

appellant’s affidavit did not include statements of fact to support testing of the firearms and spent

bullets. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a–1); Dinkins, 84 S.W.3d at 642 (general

statement that statutory requirements were met not sufficient; appellant must provide affidavit

containing statements of fact to support motion).

       Appellant argues that the State did not deliver the firearms and spent bullets to the court

as the statute required, and if it had, he could have determined whether there was biological

evidence on those items. But appellant does not cite the record showing he made this argument

below or that he asked the trial court to inquire of the State about the delivery of the evidence.

See Shannon, 116 S.W.3d at 54–55 (appellant may not complain on appeal if appellant did not

ask court to make inquiry of State about existence of evidence).

       Appellant also argues that if the results of testing on the firearms and spent bullets had

been exculpatory, he would not have been convicted because the evidence showed that “there

                                                –4–
were two unknown individuals who actually committed this offense” and “there is certainly a

greater than 50% chance that [he] would not have been convicted.” See Holberg v. State, 425

S.W.3d 282, 286–87 (Tex. Crim. App. 2014) (Chapter 64 requires convicted person to “show by

a preponderance of the evidence (that is, greater than 50% likelihood) that [he] would not have

been convicted had any exculpatory results generated by the proposed testing been available at

the time of [his] trial.”).

           Appellant has not cited and we have not found where he made this argument to the trial

court. See Shannon, 116 S.W.3d at 54–55. But even if he had, the evidence at trial showed that

four men, one of whom was appellant, committed the aggravated robbery and murder. Webb v.

State, 766 S.W.2d 236, 238 (Tex. Crim. App. 1989). 2 Consequently, appellant bore the burden to

establish that he would not have been convicted as a principal or as a party. Ex parte Gutierrez,

337 S.W.3d 883, 900 (Tex. Crim. App. 2011) (appellant’s burden more difficult when there is no

lone offender whose DNA must have been left at scene); Prible v. State, 245 S.W.3d 466, 469

(Tex. Crim. App. 2008) (testing not authorized if it would not result in exculpatory evidence that

would have altered outcome of trial). Additionally, there are no statements of fact in appellant’s

affidavit to support a finding in his favor on this issue. See Gutierrez, 337 S.W.3d at 901

(concluding that even if DNA was present in fingernail scrapings, it “might just as likely have

come from appellant’s accomplice . . . and that would not exculpate appellant”).

           We conclude that appellant did not meet the Chapter 64 requirements for DNA testing of

the firearms and spent bullets. To the extent the trial court’s order implicitly denied DNA testing




     2
        In his motion, appellant did not cite evidence from the trial. On appeal, he cites the evidence as described by the court of criminal appeals
in its opinion. See Webb v. State, 766 S.W.2d 236, 238 (Tex. Crim. App. 1989). The court said the evidence at trial showed that there was an
eyewitness to the crime who identified appellant, his brother, and two other individuals as the persons who robbed and murdered the gas station
manager. Id.



                                                                       –5–
of the firearms and spent bullets, we cannot conclude that the court erred.   We resolve

appellant’s sole issue against him.




                                                /Elizabeth Lang-Miers/
                                                ELIZABETH LANG-MIERS
                                                JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

140743F.U05




                                          –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOHN WILL WEBB, Appellant                           On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-14-00743-CR         V.                       Trial Court Cause No. F85-88094-H.
                                                    Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                        Justices Bridges and Myers participating.

      Based on the Court’s opinion of this date, the September 17, 2013 order of the trial court
is AFFIRMED.


Judgment entered this 30th day of January, 2015.




                                              –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOHN WILL WEBB, Appellant                           On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-14-00744-CR         V.                       Trial Court Cause No. F85-98761-H.
                                                    Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                        Justices Bridges and Myers participating.

      Based on the Court’s opinion of this date, the September 17, 2013 order of the trial court
is AFFIRMED.


Judgment entered this 30th day of January, 2015.




                                              –8–
