                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-11-00318-CR

CHRISTOPHER LEAVELE PATT,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 85th District Court
                                Brazos County, Texas
                          Trial Court No. 09-02307-CRF-85


                           MEMORANDUM OPINION


       Christopher Leavele Patt filed a “Motion for Forensic DNA Testing” which the

trial court denied. He appeals. Because the trial court did not abuse its discretion in

denying Patt’s motion, we affirm.

       In his first issue, Patt contends that the trial court abused its discretion in failing

to find that Patt satisfied the “interests of justice” exception of former article

64.01(b)(1)(B) of the Code of Criminal Procedure. Act of 2001, 77th Leg., ch. 2 (S.B. 3), §

2, eff. April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of
2011 82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011 (current version at TEX. CODE

CRIM. PROC. ANN. art. 64.01(b) (West Supp. 2012)).1 We conduct a de novo review of the

trial court’s ruling. See Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008).

        Article 64.01 provides that a convicted person may submit a motion to the

convicting court requesting DNA testing of evidence containing biological material that

was in the State's possession during trial. Act of 2001, 77th Leg., ch. 2 (S.B. 3), § 2, eff.

April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of 2011

82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011, (formerly TEX. CODE CRIM. PROC.

ANN. art. 64.01(a) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (West

Supp. 2012)).      The motion must be accompanied by an affidavit sworn to by the

convicted person, containing statements of fact in support of the motion. Id.; Dinkins v.

State, 84 S.W.3d 639, 641-642 (Tex. Crim. App. 2002). Because Patt filed his motion for

DNA testing before the effective date of the changes to Chapter 64 and because DNA

testing had not been done at his trial, Patt was required to show in his motion that no

DNA testing occurred "through no fault of the convicted person, for reasons that are of

such a nature that the interests of justice require DNA testing." Act of 2001, 77th Leg.,

ch. 2 (S.B. 3), § 2, eff. April 5, 2001 (formerly TEX. CODE CRIM. PROC. ANN. art.

64.01(b)(1)(B)).




1Patt filed his motion for DNA testing in May of 2011, thus the former version of the statute applies. All
citations to the statute are to the former version.

Patt v. State                                                                                      Page 2
        Initially we note that Patt’s “affidavit” is deficient.          Instead of “containing

statements of fact in support of the motion” as required, Patt simply states under a

heading of “Inmate’s Declaration:”

               I, Christopher Leavele Patt, prisoner number 162271 being
        presently incarcerated in the McConnell Unit, declare under penalty of
        perjury that I have read the foregoing Motion for DNA Testing and the
        factual assertions contained therein are according to my belief true and
        correct.2

This is not an affidavit “containing statements of fact in support of the motion.”

Because there is no affidavit containing facts in support of the motion, the trial court did

not err in denying Patt’s Motion for Forensic DNA Testing. See Dinkins v. State, 84

S.W.3d 639, 642 (Tex. Crim. App. 2002).

        Even if the declaration is a sufficient affidavit, the motion itself is insufficient to

show “no fault.” A person claiming “no fault” in failing to request DNA testing must

make a more particularized showing of the absence of fault under article 64.01(b)(1)(B)

because Chapter 64 requires defendants to avail themselves of whatever DNA

technology may be available at the time of trial. Ex parte Gutierrez, 337 S.W.3d 883, 895

(Tex. Crim. App. 2011). Patt’s motion fails to address the “no fault” provision of article

64.01(b)(1)(B). Thus, the trial court did not abuse its discretion in denying Patt’s motion

for DNA testing.

        Patt’s first issue is overruled.

2This statement barely meets the requirements of an unsworn declaration by an inmate. TEX. CIV. PRAC.
& REM. CODE ANN. § 132.001(e) (West Supp. 2012).

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        Because of our disposition in Patt’s first issue, we need not address Patt’s second

issue that the trial court abused its discretion in failing to find that Patt established by a

preponderance of the evidence that he would not have been convicted if exculpatory

results had been obtained through DNA testing.

        The trial court’s order is affirmed.




                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 13, 2012
Do not publish
[CRPM]




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