                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                                ________________
                                NO. 09-14-00437-CR
                                ________________

                  HEYMAN HAROLD GUILLORY, Appellant

                                           V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 07-00940
__________________________________________________________________

                            MEMORANDUM OPINION

      Heyman Harold Guillory appeals the trial court’s denial of his motion for post-

conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(a-1) (West Supp.

2014). We affirm the trial court’s order denying Guillory’s motion.

      Guillory filed a pro se motion for post-conviction DNA testing, in which he

asserted that in response to a prior motion for DNA testing, the State had responded that

DNA testing had revealed that the victim’s blood was present on Guillory’s clothing.

Guillory’s motion stated that he seeks to have DNA testing conducted on the clothing “to


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make a biological factual determination as to [the] actual owner of the clothing because

the clothing does not belong to [Guillory].” Guillory asserted that he is innocent of the

offense, and he contends that the clothes in question were not confiscated from his person

when he was arrested “or at any other time during the arrest or investigation procedure.”

       In its order denying Guillory’s motion, the trial court stated that Guillory was

indicted for capital murder in June of 2007, and Guillory confessed to the crime and

subsequently pleaded guilty “in exchange for the State dropping its pursuit of the death

penalty.” The trial court sentenced Guillory “in accordance with this plea bargain

agreement on November 5, 2007.” The trial court concluded that Guillory’s motion “is

frivolous as it is supported by nothing more than the movant’s self-serving, conclusory

assertion that the clothing upon which the victim’s blood was found did not belong to

him (movant)[.]” The trial court’s order also stated that Guillory’s denial of ownership of

the clothing was “incredible and unworthy of belief” because Guillory had not raised the

issue in any previous proceeding, including his application for habeas corpus relief.

       In addition, the trial court stated that Guillory “has provided no concrete evidence

to meet his threshold burden of showing the clothing in question contains ‘biological

material,’ as that term is defined under Article 64.01(a) . . . other than the previously-

tested blood stains determined to be the victim’s.” The trial court stated that “in light of

the complete absence of any concrete evidence to support the allegations submitted

therein,” Guillory failed to establish his entitlement to post-conviction DNA testing, and


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the trial court therefore denied the motion. In a subsequent “Clarification Order[,]” the

trial court determined that (1) Guillory was not entitled to counsel for his Chapter 64

motion, and (2) Guillory failed to meet the mandatory requirements set forth in Article

64.03(a)(1), (2). See Tex. Code Crim. Proc. Ann. arts. 64.01(c), 64.03(a)(1), (2) (West

Supp. 2014).

       In his pro se briefs to this Court, which he entitled “Proof of innocence” and

“Advisory to the Court[,]” Guillory argues that “DNA would be present on the clothing if

Guillory had worn the clothing, but the clothing was never tested for Guillory’s DNA.”

We interpret Guillory’s pro se briefs as contending that the trial court erred by denying

his post-conviction motion for forensic DNA testing.

       We review a trial court’s decision to deny 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). We afford almost total deference to the trial court’s determination of

issues of historical fact and its application of the law to fact issues that turn on

determinations of witnesses’ credibility and demeanor, but we review de novo the trial

court’s application of the law to fact issues that do not turn on determinations of

witnesses’ credibility and demeanor. Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim.

App. 2008). When the only sources of information are the trial court’s record and the

appellant’s pleadings and affidavit, the trial court is in no better position than this Court




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to make its decision; therefore, we review the issues de novo. See Smith v. State, 165

S.W.3d 361, 363 (Tex. Crim. App. 2005).

         Article 64.01(a-1) provides that a convicted person may request forensic DNA

testing of evidence containing biological material, and the motion “must be accompanied

by an affidavit, sworn to by the convicted person, containing statements of fact in support

of the motion.” Tex. Code Crim. Proc. Ann. art. 64.01(a-1). The motion may request

DNA testing only of evidence that either was not previously subjected to DNA testing or,

although previously subjected to DNA testing, can be subjected to testing with newer

testing techniques that would yield more accurate and probative results. Id. art. 64.01(b).

A convicting court may order forensic testing only if it finds that the evidence still exists,

is in a condition making DNA testing possible, and, among other things, the convicted

person establishes by a 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)(1), (2). A convicting court may order forensic DNA testing only if the statutory

preconditions of Chapter 64 are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App.

2002).

         As discussed above, Guillory’s motion contained only a conclusory allegation that

further DNA testing of the clothing, which had previously been subjected to DNA testing

and found to contain the victim’s blood, would reveal the identity of the owner of the

clothing. Guillory’s motion admitted that the clothing had previously been subjected to


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DNA testing, and his motion contained no evidence that the clothing contained biological

material that could be tested and used to identify the owner of the clothing as someone

other than Guillory. Therefore, the trial court did not err by denying Guillory’s motion for

post-conviction forensic DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), (a-

1), (b), 64.03(a)(1), (2). We affirm the trial court’s judgment.

       AFFIRMED.


                                           ________________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice


Submitted on January 30, 2015
Opinion Delivered March 4, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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