AFFIRM; and Opinion Filed August 6, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-01172-CR

                           WARREN RAY PATTON, JR., Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 422nd Judicial District Court
                                 Kaufman County, Texas
                          Trial Court Cause No. 14-00353-422-F

                              MEMORANDUM OPINION
                         Before Justices Francis, Fillmore, and Whitehill
                                   Opinion by Justice Francis
       Warren Ray Patton, Jr. brings this pro se appeal of the trial court’s order denying his motion

requesting post-conviction forensic DNA testing and appointment of counsel. In two issues,

appellant contends the trial court improperly relied on hearsay evidence in denying his motion.

We affirm the trial court’s order.

       After a fatal head-on collision with another vehicle in June 2012, appellant was charged

with intoxication manslaughter and manslaughter. See Patton v. State, No. 05-14-01073-CR, 2016

WL 97540, at *1 (Tex. App.—Dallas Jan. 6, 2016, pet ref’d) (mem. op., not designated for

publication). Appellant pleaded not guilty and a jury acquitted him of intoxication manslaughter,

convicted him of manslaughter, and assessed a sentence of eighteen years in prison. Id. This

Court affirmed his conviction. Id. at *6.
       Eighteen months later, on July 11, 2017, appellant filed a motion in the trial court

requesting DNA testing and appointment of counsel. In his motion, appellant asserted that, at the

time of trial, the State was in possession of evidence containing biological material that allegedly

belonged to him. Appellant attached a 2014 affidavit signed by his trial counsel who stated the

jury heard testimony regarding the results of tests conducted by Parkland Hospital on blood and

urine samples taken on the night of the offense and the evidence of alcohol in the samples

contributed to the jury’s decision to find appellant guilty. Appellant argued DNA testing would

show the samples tested by the hospital on the night of the offense were taken from another person.

       The State responded to the motion stating there was no evidence still in existence that could

be tested. In support, the State attached the affidavit of Michael Holly, the chief investigator of

the Kaufman County District Attorney’s Office and lead investigator in appellant’s case. Holly

stated he contacted Parkland Hospital when preparing for trial in an attempt to obtain appellant’s

blood and urine samples. According to Holly, Parkland informed him the evidence had been

destroyed.

       Without conducting a hearing, the trial court denied appellant’s motion. The court stated

in its order that no evidence still existed to be tested and there were no reasonable grounds to file

a motion for DNA testing. Appellant then brought this appeal contending the trial court improperly

relied on hearsay evidence when it denied his requests for testing and appointment of counsel.

       When a trial court rules on a motion for post-conviction DNA testing without conducting

an evidentiary hearing, we review the trial court’s ruling de novo. See Smith v. State, 165 S.W.3d

361, 363 (Tex. Crim. App. 2005). Article 64 of the code of criminal procedure governs the

requisites of a motion for forensic DNA testing. It details what may be tested and what must be

alleged in the motion to support testing. A convicted person may request DNA testing of evidence

relating to the offense that is basis of the challenged conviction and was in the possession of the

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State during the trial of the offense. See TEX. CODE CRIM. PROC. ANN. art. 64.01(b) (West 2018);

see also Routier v. State, 273 S.W.3d 241, 247 (Tex. Crim. App. 2008). In addition, the convicted

person must show the biological material was retained. See Routier, 273 S.W.3d at 256. The court

may order post-conviction DNA testing only if it finds: (1) the evidence still exists 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; (2) there is

a reasonable likelihood the evidence contains biological material suitable for DNA testing; and (3)

identity was or is an issue in the case. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)-(C). The

convicted person bears the burden of meeting all statutory predicates and his motion must be

accompanied by an affidavit, sworn to by him, containing statements of fact in support of the

motion. Id. art. 64.01(a–1); Routier, 273 S.W.3d at 246.

       In his motion for DNA testing, appellant made no showing that any evidence amenable to

DNA testing still existed. He alleged in his motion only that the State possessed biological material

at the time of trial. He made no assertions the material still existed. The affidavit submitted in

support of the motion was created almost three years before the motion was filed and was signed

by appellant’s trial counsel, not appellant, contrary to the requirements of article 64. See TEX.

CODE CRIM. PROC. ANN. art. 64.01(a–1). Trial counsel stated the jury heard evidence of test

results from blood and urine samples taken by Parkland Hospital, but provided no information

about the retention of those samples. Nothing in appellant’s motion, or his trial counsel’s affidavit,

suggests biological material was still in existence in a condition making DNA testing possible at

the time the motion was filed.

       The response filed by the State contradicted appellant’s assertion that it possessed evidence

containing biological material at the time of trial as required by article 64.01(b). Investigator Holly

testified he attempted to obtain the evidence from the hospital before trial began but was told it

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had been destroyed. This testimony shows not only that the State did not possess the evidence at

trial, but that the evidence no longer existed.

       Appellant argues Holly’s affidavit is based on unsubstantiated and inadmissible hearsay.

But in an article 64 proceeding, the trial court is free to consider evidence that would be

inadmissible at trial, including hearsay statements. See Ex parte Gutierrez, 337 S.W.3d 883, 893

(Tex. Crim. App. 2011). Furthermore, the State need not file affidavits in support of its response

to an article 64 motion. See Whitaker v. State, 160 S.W.3d 5, 8–9 (Tex. Crim. App. 2004); Cravin

v. State, 95 S.W.3d 506, 511 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

       Appellant also argues Holly’s testimony is disproven by testimony elicited from one of the

State’s witnesses at trial. Specifically, appellant relies on a single statement by a medical

technologist from Parkland Hospital that, at the time the blood and urine samples were originally

tested by the hospital, the State could have requested and obtained the material to perform its own

tests. This statement does not contradict the State’s evidence that it did not have the blood and

urine samples at the time of trial and that, sometime after the hospital performed its own screening

tests, but before the State requested the material be turned over to them, the samples were

destroyed.

       Based on our review of the record, we conclude appellant failed to establish biological

material existed that was amenable to DNA testing and the trial court did not err in denying

appellant’s request. We resolve appellant’s first issue against him.

       In his second issue, appellant contends the trial court erred in denying his request for

appointment of counsel. Under article 64, a convicted person is entitled to appointment of counsel

only if the court finds there are reasonable grounds for a motion for DNA testing to be filed. See

TEX. CODE CRIM. PROC. ANN. art. 64.01(c). As discussed above, appellant failed to show, and the

State affirmatively disproved, the existence of biological material that could be subjected to DNA

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testing. Accordingly, the trial court did not err in concluding there were no reasonable grounds to

pursue such testing and in denying appellant’s request for appointed counsel. See Gutierrez, 337

S.W.3d at 894–95. We resolve appellant’s second issue against him.

       We affirm the trial court’s order.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)

171172F.U05




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                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 WARREN RAY PATTON, JR., Appellant                   On Appeal from the 422nd Judicial District
                                                     Court, Kaufman County, Texas
 No. 05-17-01172-CR          V.                      Trial Court Cause No. 14-00353-422-F.
                                                     Opinion delivered by Justice Francis.
 THE STATE OF TEXAS, Appellee                        Justices Fillmore and Whitehill
                                                     participating.

      Based on the Court’s opinion of this date, the order of the trial court denying appellant’s
Motion for Forensic DNA Testing is AFFIRMED.


Judgment entered this 6th day of August, 2018.




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