AFFIRMED and Opinion Filed December 13, 2019




                                               In the
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-00272-CR
                                       No. 05-19-00273-CR
                              HOWARD HOLLAND, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 422nd Judicial District Court
                                 Kaufman County, Texas
                       Trial Court Cause Nos. 31608-422, 31609-422

                                           OPINION
                        Before Justices Pedersen, III, Reichek, and Carlyle
                                    Opinion by Justice Carlyle
       Howard Holland appeals from the trial court’s denial of his motions for DNA testing. In a

single issue, he contends the trial court erred by determining he did not satisfy the requirements of

article 64.03 of the Texas Code of Criminal Procedure. We affirm.

       In 2013, Holland was indicted and charged with aggravated sexual assault in three separate

cases, based on offenses committed against separate victims. Faced with the possibility of multiple

convictions that could lead to consecutive sentences, Holland agreed to a plea deal in which he

would plead guilty to one of the offenses while admitting his guilt as to the other two, with the

understanding that—although those unadjudicated offenses would be considered in determining

his sentence for the offense to which he pleaded guilty—he would not be prosecuted for the other

two offenses. See TEX. PENAL CODE § 12.45(a). The trial court accepted Holland’s guilty plea and,
after considering the two unadjudicated offenses, sentenced him to 40 years in prison. The charges

in the unadjudicated cases were then dismissed. See id. § 12.45(c).

       Holland alleges that, years later, he discovered there was physical evidence collected

during the investigations into the unadjudicated offenses. He thus filed motions under Chapter 64

of the Texas Code of Criminal Procedure in both of the unadjudicated cases, asserting there was a

substantial likelihood DNA testing would show he did not commit the offenses charged in those

cases. He did not, however, file a motion in the case in which he was convicted. Nor did he seek

to test the evidence gathered in connection with the offense of his conviction. The trial court denied

Holland’s motions, concluding both that it was not a “convicting court” and that Holland was not

a “convicted person” for purposes of the unadjudicated cases in which the motions were filed. See

TEX. CODE CRIM. PROC. art. 64.03(a).

        We review the question of law here de novo. Dunning v. State, 572 S.W.3d 685, 692 (Tex.

Crim. App. 2019). “A convicting court may order forensic DNA testing . . . only if,” among other

things, “identity was or is an issue in the case; and 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.” CRIM. PROC. art. 64.03(a). The statute thus

requires a connection between “the case,” the “convicted person,” and the evidence supporting the

conviction. In other words, it allows for forensic testing only if the evidence at issue would likely

prove the “convicted person” was not the perpetrator in “the case” in which that person was

convicted.

        Holland contends the trial court erred because the two unadjudicated offenses became part

of the judgment of his conviction in the case in which he pleaded guilty. See Woodard v. State,

931 S.W.2d 747, 750 (Tex. App.—Waco 1996, no pet.); Murray v. State, 840 S.W.2d 675, 679

(Tex. App.—Tyler 1992, no pet.). He reasons that, because the unadjudicated offenses are now

                                                 –2–
part of the judgment of his conviction, he is a “convicted person” with respect to those offenses.

He adds that the unadjudicated offenses affected both his decision to plead guilty and the sentence

he received from the trial court.

       We are bound by the language of the statute. See Ex Parte Evans, 964 S.W.2d 643, 646

(Tex. Crim. App. 1998). Chapter 64 does not provide for DNA testing merely because the evidence

at issue might have affected an applicant’s decision to plead guilty, the length of his sentence, or

the items included in the judgment of his conviction. Rather, the statute unambiguously requires

that, before testing can be ordered, the applicant must prove by a preponderance of the evidence

that he “would not have been convicted if exculpatory results had been obtained through DNA

testing.” CRIM. PROC. art. 64.03(a) (emphasis added). Holland did not make that showing. Indeed,

nothing in the record suggests the evidence gathered in connection with the unadjudicated cases,

even if exculpatory as to those offenses, would have prevented Holland’s conviction in the case in

which he entered the guilty plea.

       Perhaps the legislature should consider specifically providing that those who have had their

sentences enhanced by unadjudicated offenses can test the evidence tying them to those offenses.

Or perhaps the legislature considered and rejected including 12.45’d offenses within Chapter 64’s

purview. But Chapter 64, as it currently stands, does not accommodate the situation we face here.

       We affirm the trial court’s orders denying Holland’s motions for DNA testing.




                                                  /Cory L. Carlyle/
                                                  CORY L. CARLYLE
                                                  JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
190272F.P05



                                                –3–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 HOWARD HOLLAND, Appellant                          On Appeal from the 422nd Judicial District
                                                    Court, Kaufman County, Texas
 No. 05-19-00272-CR        V.                       Trial Court Cause No. 31608-422.
                                                    Opinion delivered by Justice Carlyle.
 THE STATE OF TEXAS, Appellee                       Justices Pedersen, III and Reichek
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of December, 2019.




                                             –4–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 HOWARD HOLLAND, Appellant                          On Appeal from the 422nd Judicial District
                                                    Court, Kaufman County, Texas
 No. 05-19-00273-CR        V.                       Trial Court Cause No. 31609-422.
                                                    Opinion delivered by Justice Carlyle.
 THE STATE OF TEXAS, Appellee                       Justices Pedersen, III and Reichek
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of December, 2019.




                                             –5–
