




OLIVER V. STATE

















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH



NOS. 2-04-339-CR

        
2-04-340-CR



ATRICE L. OLIVER	APPELLANT



V.



THE STATE OF TEXAS	STATE



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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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Appellant appeals from the trial court’s denial of his postconviction motion for DNA testing.  In one point, appellant contends that the trial court erred in denying the motion on the ground that there is no reasonable likelihood new DNA techniques would provide a more accurate result because this conclusion is “nothing more than unsupported speculation.”  The State argues that under article 64.01(b)(2) appellant presented no evidence showing that some newer DNA test would likely provide more accurate and probative results than the DNA-RFLP test that was performed prior to appellant’s trial.  
See
 
Tex. Code Crim. Proc. Ann.
 art. 64.01(b)(2) (Vernon Supp. 2004-05); 
Rivera v. State
, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (holding chapter 64 requires a defendant to establish that a reasonable probability exists that exculpatory DNA testing of the evidence would prove his innocence).  

The analyst of the DNA samples concluded that the probability of selecting an unrelated individual matching appellant’s profile was one in greater than 1.3 billion Caucasians, one in 310 million Hispanics, and one in 63 million African-Americans.  Given these results and the lack of any controverting evidence, appellant failed to show a reasonable likelihood that new testing techniques would provide a more accurate result.  Therefore, the trial court properly denied his motion for forensic DNA testing.
  
See
 
Tex. Code Crim. Proc. Ann
. art. 64.01(b)(2); 
Rivera
, 89 S.W.3d at 59; 
Luna v. State
, No. 02-03-00012-CR (Tex. App.—Fort Worth Aug. 14, 2003, pet. ref’d) (not designated for publication).  Accordingly, we overrule appellant’s sole point and affirm the trial court’s judgments.	

PER CURIAM



PANEL F:	LIVINGSTON, J.; CAYCE, C.J.; and DAUPHINOT, J.



DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)



DELIVERED:  May 5, 2005

FOOTNOTES
1:See
 
Tex. R. App. P.
 47.4.


