Affirmed and Memorandum Opinion filed February 14, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00318-CR

                   CHRISTOPHER NEAL KINGERY, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 180th District Court
                              Harris County, Texas
                          Trial Court Cause No. 855577



                        MEMORANDUM OPINION

      Appellant Christopher Neal Kingery was convicted of sexual assault of a child and
sentenced to 30 years‘ imprisonment; this court affirmed his conviction on direct appeal.
See Kingery v. State, No. 14-01-01134-CR, 2002 WL 31525652 (Tex. App.—Houston
[14th Dist.] Nov. 14, 2002, pet. ref‘d) (not designated for publication).             He
unsuccessfully challenged his conviction through state and federal habeas proceedings.
See Kingery v. Dretke, No. Civ. A. H-05-3350, 2006 WL 1441925, at *1 (S. D. Tex. May
23, 2006). He now appeals the trial court‘s decision to deny his motion for DNA testing
under Chapter 64 of the Texas Code of Criminal Procedure. We affirm.
                                         BACKGROUND

         Evidence admitted at appellant‘s trial established that ―[f]etal tissue was DNA
tested and showed that complainant had been pregnant with appellant‘s child.‖ Kingery,
2002 WL 31525652, at *1. Appellant filed a motion for DNA testing in October 2009 to
obtain retesting of that biological evidence.          At appellant‘s request, the trial court
appointed counsel during the same month. The court denied the motion for DNA testing
in March 2011 without hearing evidence, finding that appellant ―fails to allege and prove
that the biological evidence previously tested by the Harris County Medical Examiner‘s
Office can be subjected to testing with new testing techniques that provide a reasonable
likelihood of results that are more accurate and probative than the results of the previous
test.‖

                                            ANALYSIS

         In three issues, appellant contends (1) the State retested the biological evidence in
2005 without a court proceeding; (2) he received ineffective assistance of counsel; and
(3) the State engaged in prosecutorial misconduct. The State argues (1) appellant has
waived his issues by not objecting in the trial court and by failing to cite to the record or
authorities on appeal; (2) there is no support in the record for his arguments; and (3) some
of his appellate issues concern matters related to his original trial and are thus beyond the
scope of this proceeding.1

         We agree with the State as set out in greater detail below. As a threshold matter,
appellant does not challenge on appeal the trial court‘s finding that he failed to allege in
his motion that previously tested biological evidence can be subjected to testing with new
testing techniques providing a reasonable likelihood of results that are more accurate and
probative than the results of the previous test. See Tex. Code Crim. Proc. Ann. art.


         1
            The State also requested dismissal because the record did not contain a certification of
appellant‘s right to appeal. See Tex. R. App. P. 25.2(d). The record was supplemented with the
certification; thus, we do not dismiss the appeal. See id.
                                                 2
64.01(b)(2) (Vernon 2006).2           This is the only basis on which appellant could have
requested testing of the biological evidence in this case, which had previously been
tested. See id. art. 64.01(b); Routier v. State, 273 S.W.3d 241, 245–46 (Tex. Crim. App.
2008). The record supports the trial court‘s finding, and we conclude that appellant has
alleged no basis for retesting the biological evidence in this case.

I.      Alleged Testing of Biological Evidence in 2005

        In his first issue, appellant contends that he was denied access to court proceedings
in 2005 when the biological evidence was allegedly retested by the State after appellant‘s
conviction and without appellant‘s request, thus violating the ―Texas Rules of Appellate
Procedure, the Texas Constitution and United States Constitution under ‗Due Process‘ of
the 14th Amendment.‖3 Appellant never raised this complaint in the trial court and thus
has failed to preserve any error for our review. See Tex. R. App. P. 33.1(a). Further,
appellant cites no authority for this argument, and it is thus waived by inadequate
briefing. See Muhammed v. State, 331 S.W.3d 187, 195 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref‘d); see also Tex. R. App. P. 38.1(i). Finally, the State‘s alleged post-
conviction retesting of biological evidence is not a ground enumerated in the statute that
would entitle appellant to retesting on his own motion. See Tex. Code Crim. Proc. Ann.
art. 64.01; Routier, 273 S.W.3d at 245–46.

        Appellant‘s first issue is overruled.

II.     Ineffective Assistance of Counsel

        In his second issue, appellant contends his court-appointed counsel provided
ineffective assistance in violation of the Texas Constitution and United States
        2
          The statute was amended after appellant filed his motion. See Act of June 17, 2011, 82nd Leg.,
R.S., ch. 278, § 5, 2011 Tex. Sess. Law Serv. 884 (Vernon) (codified at Tex. Code Crim. Proc. Ann. art.
64.01(b)(2) (Vernon Supp. 2011). Appellant‘s motion is governed by the law in effect before the
amendment. See id. §§ 9–10, 2011 Tex. Sess. Law Serv. 885.
        3
         The basis for appellant‘s assertion appears to be a sentence in the State‘s response to appellant‘s
motion in the trial court: ―In this case, DNA testing has been already been [sic] performed in 2005 by the
Harris County Medical Examiner‘s Office.‖ The State contends the date is a typographical error.
                                                     3
Constitution because his counsel failed to (1) obtain and bring forth a notarized statement
by the complainant made in July 2000 that states she was impregnated by someone else;4
(2) file a request for judicial notice that the biological evidence collected from the
complainant was collected in violation of Florida and Texas law; (3) investigate issues
raised in the original motion for DNA testing, i.e. the statement from the complainant; (4)
obtain a Harris County non-prosecution form signed by the complainant; and (5) object to
the 17-month delay between the filing of his motion for DNA testing and the State‘s
response on the merits.

        Assuming without deciding that appellant may assert a claim of ineffective
assistance of counsel in a post-conviction proceeding for DNA testing,5 we find no basis
for concluding that counsel‘s performance was deficient in this case. To prevail on this
claim, appellant must prove that his counsel‘s representation was deficient because it fell
below the objective standard of professional norms, and that this deficient performance
prejudiced his defense. Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). When
this claim is raised on direct appeal, the record usually will be inadequate to determine
whether counsel‘s representation was so deficient and lacking in tactical or strategic
decision-making as to overcome the presumption that counsel‘s conduct was reasonable
and professional. Id.

        This record contains no explanation for counsel‘s conduct, and we are unable to
determine whether counsel lacked any tactical or strategic reasons for his conduct.

        4
          The complainant repeatedly changed her statements about who had impregnated her, and her
prior inconsistent statements on that subject were introduced at trial. Kingery v. Dretke, 2006 WL
1441925, at *10.
        5
          See Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002) (―We have not decided whether
an appellant may raise a claim of ineffective assistance arising from a hearing under Chapter 64, and we
need not do so in this case.‖); Lomax v. State, No. 14-07-00934-CR, 2008 WL 5085653, at *2 n.6 (Tex.
App.—Houston [14th Dist.] Nov. 25, 2008, pet. ref‘d) (mem. op., not designated for publication)
(collecting cases holding that such a claim is unavailable in a Chapter 64 DNA appeal); see also Ex Parte
Mines, 26 S.W.3d 910, 912–13 (Tex. Crim. App. 2000) (―We have never held that prisoners have a
constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to
so hold today.‖ (citation omitted)).
                                                    4
Further, appellant‘s first four allegations of ineffectiveness have no bearing on a
proceeding brought under Chapter 64. See Tex. Code Crim. Proc. Ann. art. 64.01;
Routier, 273 S.W.3d at 245–46. Counsel is under no obligation to engage in such futile
exercises. See Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim. App. 1988).

        Appellant‘s second issue is overruled.

III.    Prosecutorial Misconduct

        In his third issue, appellant contends that the State committed prosecutorial
misconduct by (1) withholding from the court the notarized statement made by the
complainant in 2000 that she was impregnated by someone else; (2) allowing a third
party to investigate and obtain DNA evidence from the complainant‘s aborted fetus from
an abortion clinic in Florida without a warrant or court order in violation of Texas and
Florida statutes; and (3) violating the Lacy Peterson Act because the State knew the third
party was fleeing authorities when the complainant was transported, held against her will,
badgered, and forced to have an abortion.

        Appellant‘s complaints based on prosecutorial misconduct related to his original
trial fall outside the scope of a proceeding for DNA testing under Chapter 64, and they
are not reviewable on appeal from a trial court‘s order denying appellant‘s motion. See
Reger v. State, 222 S.W.3d 510, 513–14 (Tex. App.—Fort Worth 2007, pet. ref‘d) (court
of appeals lacked jurisdiction to consider matters unrelated to the Chapter 64
proceeding); Hooks v. State, 203 S.W.3d 861, 866 (Tex. App.—Texarkana 2006, pet.
ref‘d) (same). To the extent appellant complains about the State ―withholding from the
honorable courts‖ the statement by the complainant in this proceeding, the record
contains no evidence of such ―withholding.‖6 Additionally, the statement is not material
for purposes of Brady v. Maryland, 373 U.S. 83 (1963), because there is no reasonable


        6
          Appellant relies on authorities concerning the State‘s failure to disclose exculpatory evidence,
but from reviewing appellant‘s motion for DNA testing, which commenced this proceeding, appellant
was fully aware of the alleged statement before this proceeding began.
                                                    5
probability that the outcome of this proceeding would have been different. See Webb v.
State, 232 S.W.3d 109, 114 (Tex. Crim. App. 2007). The statement would not provide a
basis for retesting the previously tested biological evidence under Chapter 64. See Tex.
Code Crim. Proc. Ann. art. 64.01.

      Appellant‘s third issue is overruled.

                                      CONCLUSION

      Having overruled all of appellant‘s issues, we affirm the trial court‘s order
denying appellant‘s motion for DNA testing.




                                         /s/       William J. Boyce
                                                   Justice


Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                               6
