                                             OPINION
                                        No. 04-09-00735-CR

                                        Ovidio GARCIA, Jr.,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 229th Judicial District Court, Starr County, Texas
                                      Trial Court No. 91-CR-43
                            Honorable J. Manuel Banales, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 21, 2010

AFFIRMED

           This is an appeal of the denial of a motion for DNA testing. In three issues on appeal,

Ovidio Garcia, Jr., argues the trial court erred in denying his request for DNA testing of

materials relating to his prior murder conviction. Finding no error, we affirm the trial court’s

order denying DNA testing.
                                                                                      04-09-00735-CR


                                          BACKGROUND

       In 1992, Garcia pled guilty to the offense of capital murder and was sentenced to life

imprisonment. The murder victims in the capital murder case had been burned beyond

recognition and were identified by personal possessions found on the bodies. In 2002, Garcia

filed a motion for DNA testing, and in 2008, he filed an additional motion for DNA testing. In

his motions, Garcia argued that he was entitled to DNA testing of (1) the human organs of the

four burned bodies and (2) two pieces of blood-covered asphalt from the crime scene. According

to Garcia’s motions, DNA testing on the human organs would show whether the remains were,

in fact, human, and further, if they were human, whether they were the remains of the individuals

named in the indictment. Both motions were set for hearing on June 27, 2008. Garcia, who

waived his right to counsel, appeared at the hearing by telephone and represented himself. He is

also representing himself on appeal. After the trial court denied his motions, he filed this appeal.

                                            DISCUSSION

       Article 64.01 of the Texas Code of Criminal Procedure provides that a convicted person

may request the convicting court to order forensic DNA testing of evidence containing biological

material. TEX. CODE CRIM. PROC. ANN. art. 64.01(a) (Vernon Supp. 2009). The motion must be

sworn to by the convicted person and contain statements of fact supporting the motion. Id. In the

motion, the convicted person may request testing only of evidence “that was secured in relation

to the offense that is the basis of the challenged conviction and was in the possession of the state

during the trial of the offense.” Id. art. 64.01(b). The trial court is required to order DNA testing

only if it finds that (1) the evidence still exists and is in a condition making DNA testing

possible; (2) the evidence has been subjected to proper chain of custody; (3) identity was or is an

issue in the case; (4) the person establishes by a preponderance of the evidence that he would not



                                                -2-
                                                                                        04-09-00735-CR


have been convicted if exculpatory results had been obtained through DNA testing; and (5) the

request for the proposed DNA testing is not made to unreasonably delay execution of sentence or

administration of justice. Id. art. 64.03(a),(c). Further, if the convicted person pled guilty or

confessed, he may still submit a motion for DNA testing, and the court is prohibited from finding

that identity was not an issue solely on the basis of that plea or confession. Id. art. 64.03(b).

       We review the trial court’s decision on a motion for DNA testing under a bifurcated

standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We afford

almost total deference to the trial court’s determination of issues of historical fact and issues of

application-of-law-to-fact that turn on credibility and demeanor of witnesses. Rivera v. State, 89

S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo other issues of application-of-law-to-

fact questions that do not turn on the credibility and demeanor of witnesses. Id.

       In his first issue, Garcia complains that the trial court erred in sustaining the State’s

objection to his motion for DNA testing based on the fact that Garcia’s motions were not

properly sworn to as required by article 64.01(a). Although the trial court sustained the State’s

objection, in its order denying DNA testing, it noted that “to avoid a re-pleading and re-litigation

of these issues,” it considered “the motion, as supplemented, in the interest of justice.” Thus,

because the trial court considered all of Garcia’s issues in spite of sustaining the State’s objection

to the motions for DNA testing, Garcia suffered no harm. We, therefore, overrule Garcia’s first

issue on appeal.

       In his second issue on appeal, Garcia contends the trial court erred in denying his motion

for DNA testing based on its interpretation of the “identity” issue requirement under article 64.03

of the Texas Code of Criminal Procedure. Specifically, Garcia complains of the trial court

finding that the term “identity” in article 64.03(a)(1)(B) refers to the identity of the perpetrator of



                                                 -3-
                                                                                     04-09-00735-CR


the crime and not to the victims. Thus, according to Garcia, the trial court erred in finding Garcia

was not entitled to DNA testing for the purpose of showing whether the victim’s remains were

human and, if so, whether the remains belonged to those individuals named in the indictment.

       Before a trial court orders forensic DNA testing, the defendant must show identity was or

is an issue in the case. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B) (Vernon Supp. 2009);

see Bell v. State, 90 S.W.3d 301, 306-07 (Tex. Crim. App. 2002). “Although the court of

criminal appeals has not explicitly stated that ‘identity,’ as used in article 64.03(a)(1)(B), means

the identity of the perpetrator,” in Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App.

2007), it “suggested as much.” In re Kennard, No. 03-07-00308-CR, 2008 WL 899606, at *2

(Tex. App.—Austin 2008, no pet.) (citing Blacklock, 235 S.W.3d at 232) (not designated for

publication). In Blacklock, 235 S.W.3d at 232-33, the court of criminal appeals noted that

exculpatory DNA testing excluding the defendant as the donor of the biological material would

establish his innocence, which, according to the court of criminal appeals, was “precisely the

situation in which the Legislature intended to provide post-conviction DNA testing.”

       Emphasizing this language from Blacklock, the Austin Court of Appeals in Kennard held

that “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator. In re

Kennard, 2008 WL 899606, at *3. In Kennard, the defendant, who had been convicted of

aggravated sexual assault, admitted to having sexual intercourse with the victim, but, in order to

undermine the victim’s credibility, sought DNA testing to show the victim was lying about not

having sexual intercourse with other men on the night in question. Id. at *1. Specifically, the

defendant conceded that his identity was and is not an issue, but nevertheless argued that the

identity of the second spermatozoa contributor was an issue. Id. The Austin Court of Appeals

disagreed. See id. at *2. In considering the plain language of article 64.03(a)(1)(B), the court



                                                -4-
                                                                                       04-09-00735-CR


concluded that “identity” must mean the identity of the perpetrator of the offense. Id. The court

additionally explained that, at the time the legislature adopted chapter 64, it also enacted a statute

“providing for the preservation of biological material that would establish the identity of the

person who committed the offense or exclude a person from the group who could have

committed the offense.” Id. (emphasis added); see TEX. CODE CRIM. PROC. ANN. art 38.43

(Vernon Supp. 2009). Thus, the court held that “identity” as used in article 64.03(a)(1)(B) means

the identity of the perpetrator and affirmed the trial court’s order denying the motion for DNA

testing, explaining it was undisputed that the identity of the perpetrator was not an issue. In re

Kennard, 2008 WL 899606, at *2-*3.

       Likewise, in Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet.

ref’d), cert. denied, 552 U.S. 1117 (2008), the Fort Worth Court of Appeals held that “identity”

as used in article 64.03(a)(1)(B) means identity of the perpetrator. In Reger, despite admitting to

having shot and killed the victim, the defendant claimed identity was and continued to be an

issue because the identity of the first aggressor was critical to corroborate his self-defense theory.

Id. The Fort Worth Court of Appeals disagreed and held that “this contention fails to raise an

issue as to the identity of the perpetrator of the alleged offense, which is required under the plain

meaning of article 64.03(a)(1)(B).” Id. Similarly, in Lyon v. State, 274 S.W.3d 767, 768-69 (Tex.

App.—San Antonio 2008, pet. ref’d), this court held identity was not an issue where the

defendant claimed “identity” as used in article 64.03(a)(1)(B) could mean identity of the first

aggressor. In Lyon, the defendant admitted to having stabbed the victim, but argued that identity

of the first aggressor was an issue in the case and that DNA testing would help him establish his

self-defense theory. Id. at 768. In affirming the trial court’s order denying DNA testing, this




                                                 -5-
                                                                                        04-09-00735-CR


court emphasized that the defendant sought to use the DNA testing to excuse his actions rather

than to exclude himself as the perpetrator. Id. at 769. Citing Blacklock, this court stated “[t]he

purpose of DNA testing under article 64.03 is to provide an avenue by which a defendant may

seek to establish his innocence by excluding himself as the perpetrator of the offense.” Id.

       While other cases have not explicitly held that “identity” as contemplated by article

64.03(a)(1)(B) refers to identity of the perpetrator, they have indicated such. See Hooks v. State,

203 S.W.3d 861, 863-64 (Tex. App.—Texarkana 2006, pet. ref’d); Lewis v. State, 191 S.W.3d

225, 228 (Tex. App.—San Antonio 2005, pet. ref’d); see also Birdwell v. State, 276 S.W.3d 642,

645-46 (Tex. App.—Waco 2008, pet. ref’d).

       In Hooks, 203 S.W.3d at 863-64, the Texarkana Court of Appeals held that identity was

not at issue in an intoxication manslaughter case. In his motion for DNA testing of blood and

hair samples, the defendant did not contest that he was driving the vehicle that struck the victim,

but argued that the police officers switched the DNA samples at the accident scene, thus falsely

portraying him as guilty. Id. In holding identity was not an issue, the Texarkana Court of

Appeals suggested that “identity” refers to identity of the perpetrator:

               The trial court specifically found that DNA testing would neither
               prove nor disprove the identity of the operator of the vehicle [that]
               struck and killed the victim. The trial court further held as a matter
               of law that identity was not an issue. As the State points out,
               Hooks never contests that he was driving the vehicle [that] struck
               the victim, instead repeatedly admitting, “I hit the person with my
               truck.”

               Hooks asks us to broaden the scope of the term “identity” in article
               64.03 to include the identity of DNA samples, but doing so would
               render the word “identity” meaningless. Adopting Hooks’
               definition would allow an appellant to obtain a DNA test when the
               identity of any substance, evidence, or person even remotely
               involved in the case was disputed. An appellant could raise the
               issue of identity when it never existed at trial, thus not only
               negating the plain meaning of the “was or is” language in the

                                                -6-
                                                                                      04-09-00735-CR


               statute, but also contradicting the Legislature’s directive to place
               the burden on the appellant to show that DNA testing is warranted.

Id. at 864.

        Likewise, in Lewis, 191 S.W.3d at 228, this court held that identity was not an issue

where the defendant, who was convicted of sexual assault of a child, did not deny that he had had

sexual intercourse with the minor, but instead sought DNA testing to prove the minor was

sexually promiscuous. Id. at 229.

        Finally, in Birdwell, 276 S.W.3d at 645-46, the Waco Court of Appeals suggested

“identity” as used in article 64.03(a)(1)(B) means identity of the perpetrator in a case in which

the defendant claimed DNA testing could show the presence of a third party in the room where

the victim had been stabbed and killed. The court explained “[t]he purpose of DNA testing under

article 64.03 is to provide an avenue by which a defendant may seek to establish his innocence

by excluding himself as the perpetrator of the offense.” Id. According to the court, the “contested

issue in [the] trial was not who stabbed and killed [the victim], but why [the defendant] stabbed

her.” Id. at 646 (emphasis in original).

        Here, the trial court, in its order denying the motion for DNA testing, concludes that the

term “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator, not the

identity of the victim. The trial court does, however, acknowledge that the Corpus Christi Court

of Appeals “has suggested, without so holding, that a challenge to the victim’s identity may

require DNA testing under Chapter 64.” See In re State, 218 S.W.3d 837 (Tex. App.—Corpus

Christi 2007, orig. proceeding). In that case, the defendant, who was convicted of murder, sought

DNA testing of some blood found on a towel in order to help him prove his self-defense claim.

Id. at 840. Although the Corpus Christi Court of Appeals held that identity was not an issue, in

its opinion, the court suggested that identity as used in article 64.03(a)(1)(B) could mean the

                                               -7-
                                                                                                        04-09-00735-CR


victim’s identity: “Neither [the defendant’s] identity nor the victim’s identity is being

challenged.” Id. (emphasis added). We note, as did the trial court in the case before us, that the

Corpus Christi Court of Appeals did not hold that “identity” contemplates the victim’s identity.

The court’s statement about the victim’s identity was unnecessary to the opinion and is at odds

with all the above-cited authorities.

         We agree with the trial court’s finding that the term “identity” as used in article

64.03(a)(1)(B) means the identity of the perpetrator, not the identity of the victim. Thus, we

overrule Garcia’s second issue on appeal. 1

         In his third issue, Garcia contends the trial court erred by implicitly denying his request

for subpoena duces tecum. Because we have found that identity is not and was not an issue,

which is a requirement for ordering DNA testing pursuant to article 63.04(a)(1)(B), we need not

address Garcia’s issue concerning the denial of his request for subpoena duces tecum. See

Birdwell, 276 S.W.3d at 646 (holding that because identity was not and is not at issue, and

because the appellant would be entitled to DNA testing only if identity was or is at issue, it need

not address appellant’s remaining issues). Thus, we overrule Garcia’s third issue.

         Having overruled all of Garcia’s issues on appeal, we affirm the trial court’s order

denying DNA testing.


                                                             Karen Angelini, Justice

Publish


1
  In his brief, Garcia also claims that his identity as the perpetrator is an issue. We, however, agree with the trial
court’s finding that Garcia never raised the issue of his identity as the perpetrator in the trial court. Specifically, in
his motions for DNA testing, Garcia contended he was entitled to DNA testing of the victim’s remains to determine
whether the victims were human and, if so, whether they were the victims named in the indictment. He also
requested DNA testing of blood-covered asphalt pieces retrieved from the crime scene for the purpose of disproving
the State’s theory of the case that the blood on the asphalt was the blood from some of the victims. These
contentions in his motions did not place Garcia’s identity as the perpetrator in issue. And, by failing to argue in his
motions for DNA testing that his identity as the perpetrator was in issue, he has waived any such issue on appeal.

                                                          -8-
