                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-144-CR


TOMMY ANSEL MARKS                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     Appellant Tommy Ansel Marks appeals from the trial court’s denial of his

motion for post-conviction DNA testing under Chapter 64 of the code of

criminal procedure. We affirm.

     In 2002, a jury convicted Marks of aggravated sexual assault of a child

under fourteen, and the trial court sentenced him to forty-five years’

confinement. We affirmed the conviction and sentence on direct appeal. See


     1
          See Tex. R. App. P. 47.4.
Marks v. State, No. 02-02-00368-CR, 2003 WL 22311251 (Tex. App.—Fort

Worth, Oct. 9, 2003, no pet.) (mem. op., not designated for publication).

      The evidence at trial included the testimony of D.S., who testified that

Marks sexually assaulted her, describing in her testimony the circumstances

surrounding the assault. The State also presented DNA evidence and expert

testimony concerning the likelihood that Marks’s DNA matched the DNA

collected from him and D.S. DNA testing was performed twice and by two

separate laboratories. First, the Fort Worth Police Department Forensic Science

Laboratory analyzed the biological material evidence in the case and then, after

questions arose about practices at that laboratory, a second round of testing

was conducted by the Forensic Laboratory of the Tarrant County Chief Medical

Examiner.      Marks concedes that the results from both laboratories were

inculpatory.

      In 2008, Marks filed a motion for a third round of DNA testing, which the

trial court denied after finding that Marks did not meet the requirements of

Chapter 64 of the code of criminal procedure.

      We apply a bifurcated standard of review to a trial court’s decision to

deny post-conviction DNA testing. Rivera v. State, 89 S.W.3d 55, 59 (Tex.

Crim. App. 2002).     We defer to the trial court’s determination of issues of

historical fact and issues that turn on credibility and demeanor, while we review


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de novo whether the trial court was required to grant a motion for DNA testing

under Chapter 64 of the code of criminal procedure. Whitaker v. State, 160

S.W.3d 5, 8 (Tex. Crim. App.), cert. denied, 543 U.S. 864 (2004); Rivera, 89

S.W.3d at 59.

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

convicted person may request forensic DNA testing of evidence containing

biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp.

2009); Routier v. State, 273 S.W.3d 241, 245 (Tex. Crim. App. 2008). 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). To be entitled to testing of biological material that has been

previously tested, the movant must show that the material

      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.

Tex. Code Crim. Proc. Ann. art. 64.01(b)(2); Routier, 273 S.W.3d at 246.

      The trial court found that Marks did not meet the Chapter 64

requirements. The record supports this finding. Marks did not support his

motion with an affidavit as required by Article 64.01(a), nor did he affirm that

all factual allegations in the motion were true. Cf. In re Fain, 83 S.W.3d 885,

889 (Tex. App.—Austin 2002, no pet.) (citing Tex. Civ. Prac. & Rem. Code


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Ann. §§ 132.001–.003 (Vernon 2005 & Supp. 2009) (providing that inmates

may substitute unsworn declarations for statutorily required sworn affidavits)).

And, although Marks asked the trial court to appoint Identigene, Inc. to perform

DNA testing of the previously tested material, he failed to allege, much less

prove, that Identigene, Inc. will utilize “newer testing techniques that provide

a reasonable likelihood of results that are more accurate and probative than the

results of the previous test.” Thus, he did not meet the requirements of article

64.01(b)(2). See Routier, 273 S.W.3d at 250. Because Marks failed to comply

with the statutory requirements of Chapter 64, we hold that the trial court

correctly denied his motion. 2 Accordingly, we overrule Marks’s sole issue and

affirm the trial court’s denial of his motion for DNA testing.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 18, 2010




      2
         We note that having found that Marks failed to satisfy Chapter 64, the
trial court lacked jurisdiction to alternatively allow Marks DNA testing at his
own expense. See State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App.
2002).

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