AFFIRM; and Opinion Filed January 30, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00746-CR
                                      No. 05-14-00747-CR

                                CLINTON WEBB, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 1
                                  Dallas County, Texas
                   Trial Court Cause Nos. F85-98318-H and F85-98760-H

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

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

in prison for both offenses. In 2012, he filed a pro se 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). The trial court appointed one lawyer to

represent both appellant and his brother. Appointed counsel filed a combined formal motion for

DNA testing 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. 05-14-00743-CR and 05-14-00744-CR.



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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’s pro se motion asked for DNA and fingerprint testing of “the firearm

introduced at the trial in this cause.” He stated that “a firearm [ballistics] exam was conducted

on a firearm . . . purporting to be used in the crime by defendant Clinton Webb” but “the results

were not absolutely conclusive that this was the firearm used” and DNA and fingerprint testing

was not done. Appellant attached an affidavit to his pro se motion reiterating the allegations in

his motion and stating, “It is probable that Defendant Clinton Webb, would not have been

prosecuted or convicted if results had been obtained with DNA and fingerprint testing.”

           Appointed counsel’s formal motion asked for DNA testing of “evidence containing

biological material” without referring to any specific evidence. In the affidavit attached to the

motion, appellant also did not refer to any specific evidence, but declared, “The ultimate

question in this case was whether I . . . committed the offense of aggravated robbery . . . . There

is a reasonable probability that it would show that I did not commit this offense if testing was

performed on the biological material.” 2 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 the hair found in the

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

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

   2
       Our appellate record does not contain an affidavit by appellant in the murder case.



                                                                      –3–
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.”

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

testing of the firearms and spent bullets. But although appellant’s pro se motion asked the court

for testing of a firearm, it did not request testing of spent bullets, and his formal motion did not

request testing of any specific piece of evidence. And because there is no record of a hearing on

appellant’s motion in our appellate record, the record does not show that appellant 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 court’s order did not deny testing of the firearms and spent bullets. In

fact, the order did not refer to that evidence at all. Even if we consider appellant’s pro se motion

as a request for DNA testing on a firearm, the record does not reflect that appellant asked for or

got a ruling on the 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 a statement of facts to support testing of the firearms or spent bullets.

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




                                                –4–
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 they contained biological

evidence to test. 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

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). 3 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.

     3
        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. The eyewitness identified appellant as the shooter. Id.



                                                                       –5–
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

of those items, 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)

140746F.U05




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

CLINTON WEBB, Appellant                             On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-14-00746-CR         V.                       Trial Court Cause No. F85-98318-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

CLINTON WEBB, Appellant                             On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-14-00747-CR         V.                       Trial Court Cause No. F85-98760-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–
