Affirmed and Memorandum Opinion filed November 19, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00513-CR

                      PEDRO REYES TREJO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the 506th Judicial District Court
                           Waller County, Texas
                    Trial Court Cause No. 04-06-11756

                 MEMORANDUM                     OPINION

      Appellant Pedro Reyes Trejo appeals the trial court’s order denying his
motion for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code
of Criminal Procedure. We affirm.

                                  BACKGROUND

      On July 24, 2009, Trejo was convicted by a jury of the offense of aggravated
sexual assault of a child under the age of fourteen and sentenced to sixteen years’
imprisonment. This court affirmed the judgment in Trejo v. State, No. 14-09-
00754-CR, 2011 WL 3503316 (Tex. App.—Houston [14th Dist.] Aug. 11, 2011,
no pet.) (mem. op., not designated for publication). The background facts, as
previously detailed by this Court, are as follows:

              Appellant’s sister and her family lived in a mobile home on a
       portion of appellant’s property. The complainant is appellant’s niece,
       P.R. P.R. told her mother that appellant sexually assaulted her in the
       mobile home on five occasions in 2004. P.R. was 12 years old when
       the assaults occurred.
             P.R. testified at trial that appellant told her she would
       “disappear” if she told anyone about the sexual assaults. However, she
       informed her mother of the sexual assaults after both learned that P.R.
       had been pregnant and suffered a miscarriage. Identigene Laboratory
       Director Laura Gahn testified that appellant could not be excluded as
       a contributor of the DNA profile taken from the fetal tissue recovered
       from the miscarriage, and that “[t]he probability that [appellant] is the
       biological father compared to some unrelated random person in the
       population . . . was calculated to be 99.9642 percent.”

Id. at *1. The jury found Trejo guilty of aggravated sexual assault as alleged in the
indictment and the trial court sentenced him to sixteen years in prison. Id. at *2.

       On November 11, 2013, Trejo filed a pro se motion for post-conviction
DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The
trial court denied this and a subsequent motion for DNA testing, the latter motion
forming the basis of this appeal.1 The trial court did not conduct a hearing or issue
findings of fact with regard to either motion.




       1
         While the record is not entirely clear, it appears that the trial court interpreted Trejo’s
pro se “Motion for Notice of Appeal” file-stamped May 19, 2014 as a second motion for post-
conviction DNA testing. The court’s order, dated May 23, 2014, notes: “Defendant filed his
second pro se Motion for Post Conviction DNA Testing on May 19, 2014.”

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                                     ANALYSIS

      Generally, 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 issues of application of
law to fact that turn on credibility and demeanor of witnesses. Id. We review de
novo the trial court’s application of the law to fact issues that do not turn on the
credibility and demeanor of witnesses. Ex parte Gutierrez, 337 S.W.3d 883, 890
(Tex. Crim. App. 2011). Where, as here, the trial court did not hold a hearing on
the motion for DNA testing, we review the court’s denial of that motion de novo.
See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005) (explaining that
because trial court did not hold live hearing on request for DNA testing, reviewing
court would conduct de novo review as trial court was in no better position to
determine issues).

      Texas Code of Criminal Procedure Article 64.01 governs a convicted
person’s request for post-conviction DNA testing:

    (a-1) A convicted person may submit to the convicting court a motion
          for forensic DNA testing of evidence containing biological
          material. The motion must be accompanied by an affidavit, sworn
          to by the convicted person, containing statements of fact in
          support of the motion.
      (b) The motion may request forensic DNA testing only of evidence
          described by Subsection (a-1) 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, but:
            (1) was not previously subjected to DNA testing; or
            (2) although previously subjected to DNA testing, can be
                subjected to testing with newer testing techniques that
                provide a reasonable likelihood of results that are more
                accurate and probative than the results of the previous test.
                                         3
Act of September 1, 2011, 82d Leg., R.S., ch. 278, § 5, sec. 64.01, 2011 Tex. Sess.
Law. Serv. 882, 884; Act of September 1, 2011, 82d Leg., R.S., ch. 366, § 1, sec.
64.01, 2011 Tex. Sess. Law. Serv. 1015, 1015 (West) (amended 2015) (current
version at Tex. Code Crim. Proc. § 64.01).2

       To be entitled to post-conviction DNA testing under Chapter 64, a convicted
person must establish that (1) evidence exists in a condition making DNA testing
possible; (2) the evidence has been subjected to a sufficient chain of custody to
establish its integrity; (3) there is a reasonable likelihood that the evidence contains
biological material suitable for DNA testing; (4) identity was or is an issue in the
case; (5) he would not have been convicted if exculpatory results had been
obtained through DNA testing; and (6) the request for DNA testing is not made to
unreasonably delay the execution of his sentence or interfere with the
administration of justice. Tex. Code Crim. Proc. 64.03(a). To satisfy these
requirements, the appellant’s motion must be accompanied by an affidavit
containing facts in support of the motion; it is not enough to merely allege that the
requirements have been met. Tex. Code Crim. Proc. art. 64.01(a-1); Dinkins v.
State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002).

       Trejo’s short, handwritten affidavit3 states the following:

       The Applicant Pedro Reyes Trejo, Pro Se files this motion for post-
       conviction DNA testing, requesting that DNA tests be performed on
       newly evidence in this instant case, that may contain biological
       material secured in relation to the offense of the challenged
       conviction. At issue in this conviction is the identity and the
       unidentified of the biological material (and assailant [if applicable])
       contained in the evidence and that there are newer techniques and
       2
         The 2015 amendment to article 64.01 applies to motions filed on or after September 1,
2015, and is inapplicable here. All subsequent citations will be to the statute in effect at the time
appellant’s motion was filed.
       3
           The affidavit is presented verbatim, including typographical and grammatical errors.

                                                 4
       technologies not available at the time of conviction which would
       provide a reasonable likelihood of results that are accurate and
       probative and would demonstrate applicant’s actual innocence.
       Applicant alleges that the evidence was, and still is in the States
       possession during the trial and after trial. Applicant also alleges that a
       reasonable probability existed and exists that he would not have been
       prosecuted or convicted if exculpatory results had been obtained
       through the first DNA testing. He alleges that this request for testing
       is not made so as to delay execution of sentence (which has already
       begun and not halted) or the administration of justice.

       Rather than providing facts in support of his motion, Trejo’s affidavit simply
restates the statutory requirements of Chapter 64. First, Trejo does not clearly
specify what evidence he seeks to have retested.4 Even assuming that Trejo is
asking that the fetal material be tested again, his affidavit does not establish that
this evidence still exists or that it was subjected to a sufficient chain of custody.
See Tex. Code Crim. Proc. art. 64.03(a). Finally, Trejo does not allege facts to
support his contention that newer techniques are available, and he does not explain
how a second test would “provide a reasonable likelihood of results that are more
accurate and probative than the results of the previous test” as required by Article
64.01(b)(2).

       Trejo argues that his case is most like Smith. In that case, the court reversed
the denial of the appellant’s motion for post-conviction DNA testing after finding
that his affidavit provided sufficient facts to show that there was “at least a 51%
chance that he would not have been convicted” if the DNA results were favorable.


       4
           The only mention in Trejo’s brief of the evidence to be retested is the following
sentence: “Additionally Appellant meets the criteria for retesting the biological material in the
state’s affidavit, i.e. the fetal material, expelled from the victim’s body when she miscarried and
the [bed] comforter.” Trejo is attempting to refer to the State’s response to his motion for post-
conviction DNA testing, in which the State noted that prior DNA testing of those two items
identified Trejo. The State was not suggesting that these were the items requested to be tested;
even so, Trejo cannot rely on the State to make his arguments.

                                                5
Smith, 165 S.W.3d at 365. The court rejected the lower court’s determination that
the affidavit failed to establish by a preponderance of the evidence that exculpatory
DNA tests would prove the appellant’s innocence. Id. at 363–64. In so holding, the
Court of Criminal Appeals focused on the fact that the trial court had taken judicial
notice of the trial record, which contained evidence that DNA testing could in fact
exculpate the appellant. Id. at 364–65.

       Trejo claims that his affidavit and motion are “even more extensive” than
those in Smith. We disagree. As a threshold matter, convicted persons must show
that there is “evidence containing biological material” to be tested. Routier v. State,
273 S.W.3d 241, 250 (Tex. Crim. App. 2008). However, neither Trejo’s motion
nor his brief specifies exactly what evidence he seeks to have retested.
Additionally, we conclude that Smith is distinguishable because the defendant in
that case sought DNA testing for the first time, whereas Trejo asks to have
evidence tested again.5 Article 64.01(b)(2) requires that applicants show that
further DNA testing would “provide a reasonable likelihood of results that are
more accurate and probative than the results of the previous tests.” The defendant
in Smith did not have to meet this standard. Trejo, however, was required to make
such a showing, but failed to do so.

       We conclude that the present case is more similar to Swearingen v. State,
303 S.W.3d 728 (Tex. Crim. App. 2010). In Swearingen, the appellant sought post-
conviction DNA testing of multiple pieces of evidence, including blood found
under the victim’s fingernails that had been tested previously. Id. at 730. After
explaining the burden that must be met in order to have biological evidence

       5
         Trejo’s affidavit asks that “DNA tests be performed on newly [sic] evidence.” Although
this might imply that he seeks to have some new evidence subjected to DNA testing, Trejo’s
brief concedes that Smith is distinguishable because “the appellant is requesting of [sic]
previously tested materials by newer techniques and technologies.”

                                              6
retested, the Court of Criminal Appeals affirmed the trial court’s denial of DNA
testing. Id. at 735. The court found that the appellant did not satisfy this burden,
noting the following:

      . . . [O]n the facts of this case, appellant has not shown a reasonable
      likelihood that results would be more accurate or probative. [A] DPS
      criminalist . . . testified that she was able to obtain a full DNA profile
      from the blood found under the fingernail scrapings. Because prior
      DNA testing has already resulted in a successful male DNA profile
      being entered into the Combined DNA Index System (“CODIS”), we
      find additional testing of the left-hand fingernail clippings have no
      value added . . . .”

Id. Similarly, in this case, an Identigene employee testified at trial that DNA
testing determined that there was a 99.9642% probability that Trejo fathered the
fetus miscarried by P.R. Trejo, 2011 WL 3503316, at *1. Neither Trejo’s motion
nor his affidavit demonstrates how additional testing could reach results more
accurate or probative than 99.9642%. Without more, we cannot conclude that the
trial court erred in denying his motion.

      For these reasons, we hold that the statutory prerequisites for a successful
motion for post-conviction DNA testing have not been met in this case, and we
overrule Trejo’s sole issue.

                                    CONCLUSION

     We affirm the trial court’s order denying Trejo’s motion for post-conviction
DNA testing.


                                       /s/       Ken Wise
                                                 Justice


Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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