Opinion filed August 23, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00277-CR
                                    __________

                  BELINDA LONELL DAVIS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 13414


                      MEMORANDUM OPINION
      Belinda Lonell Davis appeals the trial court’s order denying her motion for
postconviction DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05
(West 2018). In one issue on appeal, Appellant contends that the trial court erred in
finding that the evidentiary items that Appellant sought to be tested are not in the
possession of the State. We affirm.
      In 2010, the jury convicted Appellant of capital murder for her role in the
death of her husband, Roy Dean Davis. The State elected not to pursue the death
penalty, and the trial court assessed a life sentence in the Institutional Division of
the Texas Department of Criminal Justice, without the possibility of parole. This
court subsequently affirmed Appellant’s conviction in an opinion and judgment
issued in 2012. Davis v. State, No. 11-10-00203-CR, 2012 WL 2862367 (Tex.
App.—Eastland July 12, 2012, pet. ref’d) (mem. op., not designated for publication).
      Appellant filed a pro se motion for postconviction DNA testing of a used
Xbox, three video games, a remote and sensor for a DVD, two controllers, and a
black bag for the controls. Appellant contends that these items were seized by the
Palo Pinto County Sheriff’s Department and that they were used as evidence against
her at trial. As we noted in our opinion in the direct appeal, the State alleged that
Appellant caused the death of her husband by employing her ex-brother-in-law,
James Neil Cook, to murder her husband in exchange for an Xbox and a Honda
motorcycle. Id. at *1. We noted that Cook eventually pawned the Xbox. Id. at *2.
We also noted that Cook took some CDs, a DVD player, and a handheld video game
device from Appellant’s home at the time he shot Appellant’s husband in order to
make it appear that a burglary was the motive for the shooting. Id.
      The State filed a written reply to Appellant’s motion for postconviction DNA
testing. The State alleged that neither the Palo Pinto County Sheriff’s Department
nor the Texas Rangers were ever in possession of the items that Appellant sought to
be tested. The State supported this allegation with two affidavits, one from Captain
Randy Johnson of the Palo Pinto County Sheriff’s Department in his capacity as the
supervisor of the department’s criminal investigation division and the other from
Russ Authier, a retired Texas Ranger who was the lead investigator in the case
against Appellant.
      The trial court entered a written order denying Appellant’s motion for
postconviction DNA testing on the basis that “no evidence containing biological


                                          2
material exists in a condition making DNA testing possible.” The trial court cited
CRIM. PROC. art. 64.03(a)(1)(A) in support of this finding.
      Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted
person may file a motion for DNA testing in the convicting court. CRIM. PROC.
art. 64.01(a-1). The motion must be accompanied by a sworn affidavit containing
supporting facts. Id. The convicting court may order DNA testing only if it finds
the following: (1) the 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) there is a reasonable likelihood that the evidence contains biological
material suitable for DNA testing; (3) identity was or is an issue in the case; (4) 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 (5) the
request is not made to unreasonably delay the sentence. CRIM. PROC. art. 64.03(a).
      In reviewing the trial court’s Chapter 64 rulings, an appellate court gives
almost total deference to the trial court’s findings of historical fact and application-
of-law-to-fact issues that turn on witness credibility and demeanor. See Ex parte
Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011); Routier v. State, 273
S.W.3d 241, 246 (Tex. Crim. App. 2008). But the reviewing court reviews de novo
all other issues applying law to fact. Gutierrez, 337 S.W.3d at 890; Routier, 273
S.W.3d at 246.
      As correctly noted by the trial court, the convicting court must determine that
the evidence at issue “still exists and is in a condition making DNA testing possible.”
CRIM. PROC. art. 64.03(a)(1)(A)(i).      Under the applicable standard of review,
reviewing courts “defer to a trial court’s finding as to whether the claimed DNA
evidence exists and is in a condition to be tested.” Caddie v. State, 176 S.W.3d 286,
289 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). The State responded to
Appellant’s motion by providing a written explanation that the items that Appellant
                                           3
sought to be tested were not in the State’s possession. A convicting court may base
its decision regarding a Chapter 64 claim on the sufficiency of the State’s written
explanation. Id. Thus, the district court was free to base its decision on the
sufficiency of the State’s response and the accompanying affidavits. See id. at 290;
see also Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d) (explaining that trial court may make its decision on basis of State’s
response alone and that State is not obligated to file affidavits).
        Given the standard of review and in light of the record before this court, we
conclude that the State’s response and accompanying affidavits were sufficient to
support the district court’s conclusion that a DNA test could not be performed
because the State did not have possession of the items sought to be tested.
Accordingly, we overrule Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                           JOHN M. BAILEY
                                                           JUSTICE
August 23, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, J.; Gray, C.J., 10th Court of Appeals1;
and Wright, S.C.J.2

Willson, J., not participating.


        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      4
