Affirmed and Opinion Filed April 14, 2015




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-01241-CR

                             TERRY WAYNE LEE, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 041709

                            MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                   Opinion by Justice Francis
       Terry Wayne Lee was convicted in 1994 of murder, and this Court affirmed his

conviction on direct appeal.    Lee v. State, No. 05-94-01163-CR, 1995 WL 689662 (Tex.

App.―Dallas Nov. 13, 1995, no pet.). In October 2013, appellant filed a motion for post-

conviction DNA testing which the trial court denied. In two issues, appellant claims the trial

court erred by denying his motion. We affirm.

       At some time during the evening and morning of April 29th and 30th of 1993, Walter

Eugene (Gino) Henley was shot and killed. His body was found in or near Sadler, Grayson

County, Texas. Several spent .22−caliber casings were found near the body although no weapon

was found or linked to the murder. At trial, Tina Jones, the common-law wife of appellant’s

brother, Shane Lee, told the jury she, Shane, and appellant drove in appellant’s car to meet Gino
who was parked in his car on a back country road. Tina saw appellant put his revolver in the

waistband of his pants before exiting the car with Shane. Gino got out of his car, and the three

men had a heated discussion. Tina saw appellant’s hand come up from his side, and she heard

two gunshots. She saw someone driving Gino’s car leave the scene with its lights extinguished,

and appellant got back in his car. He put the revolver, which smelled of sulfur, on the front seat.

Appellant told Tina he was going to pick up Shane. After driving around, they saw Shane

running down the road; appellant picked him up, and they drove off.            After hearing this

testimony and considering all the evidence presented by the State, the jury convicted appellant

and assessed punishment at life in prison.

        In two issues, appellant claims the trial court erred by denying his motion because

appellant (1) showed a reasonable probability through the testimony of at least one juror that he

would not have been convicted “had the testing of the items shown DNA attributable to someone

other than Appellant,” and (2) affirmatively identified the items to be tested, showed such items

were in a condition that allowed DNA testing, and the same items have been adequately

safeguarded and subjected to a sufficient chain of custody. In response, the State filed a motion

attaching affidavits from, among others, the district clerk and court reporter. Both the district

clerk and the court reporter stated there was no evidence regarding this case in the possession of

either the district clerk’s office or in the court reporter’s records.

        We review the trial court’s ruling 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). 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. Id. We

review de novo other issues of application-of-law-to-fact questions that do not turn on the




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credibility and demeanor of witnesses. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim.

App. 2011).

       The convicting court may order post-conviction DNA testing only if it finds the evidence

still exists, is in a condition making DNA testing possible, and has been subjected to a chain of

custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in

any material respect, and identity was or is an issue in the case. TEX. CODE CRIM. PROC. ANN.

art. 64.03(a)(1)(A), (B) (West Supp. 2014); Leal v. State, 303 S.W.3d 292, 296 (Tex. Crim. App.

2009). In addition, the trial court may order the requested post-conviction DNA only if “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.” TEX. CODE

CRIM. PROC. ANN. art. 64.03(a)(2)(A); Gutierrez, 337 S.W.3d at 889. In other words, “[u]nder

Article 64.03, a convicted person is not entitled to DNA testing unless he first shows that there is

‘greater than a 50% chance that he would not have been convicted if DNA testing provided

exculpatory results.’” Gutierrez, 337 S.W.3d at 899 (quoting Prible v. State, 245 S.W.3d 466,

467–68 (Tex. Crim. App. 2008)). The trial court may rule on a motion for DNA testing,

“regardless of whether the attorney representing the state submitted a response.” TEX. CODE

CRIM. PROC. ANN. art. 64.02(b).

       In his motion, appellant sought testing of the victim’s shirt, the victim’s jeans, the

victim’s shoes, and five cigarette butts found in the vicinity of the victim’s body. In support of

his claim that this evidence is appropriate for DNA testing, appellant relies on the affidavit of

Lieutenant Ricky Wheeler of the Grayson County Sheriff’s Office. In Wheeler’s affidavit

attached to appellant’s motion, the officer states the agency possesses an evidence box

containing, among other things, three pairs of blue jeans, one pair of blue tennis shoes, and a bag

with cigarette butts. Notably, the affidavit makes no mention of a shirt in the evidence box. To

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the extent appellant requests testing of the victim’s shirt, he has failed to establish that piece of

evidence still exists. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i).

        With respect to the remaining items in appellant’s request, we first note we are not

entirely clear which of the three pairs of jeans contained in the evidence box should be tested.

See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). Although appellant’s motion

seeks to test the victim’s jeans, it does not identify which of the jeans in the evidence box

belonged to the victim. Nevertheless, nothing in Wheeler’s affidavit or in any of the other

affidavits attached to appellant’s motion establishes the items listed in his motion have “been

subjected to a chain of custody sufficient to establish [they have] not been substituted, tampered

with, replaced, or altered in any material respect.” See TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(A)(ii). Because appellant has failed to provide facts regarding the chain of custody

in support of his motion, we cannot conclude the trial court erred by denying his motion

requesting forensic DNA testing of evidence in this case. We overrule his second issue. In light

of our disposition of the second issue, we need not address his first issue. See TEX. R. APP. P.

47.1.

        We affirm the trial court’s order.


Do Not Publish
TEX. R. APP. P. 47.2(b)
141241F.U05
                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TERRY WAYNE LEE, Appellant                             On Appeal from the 397th Judicial District
                                                       Court, Grayson County, Texas
No. 05-14-01241-CR         V.                          Trial Court Cause No. 041709.
                                                       Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                           Justices Lang-Miers and Whitehill
                                                       participating.

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


Judgment entered this 14th day of April, 2015.




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