                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00414-CR
                                NO. 02-15-00415-CR


JEROME DIEGO BROWN                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                  TRIAL COURT NOS. 0514634D, 0554991D

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                           MEMORANDUM OPINION1

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      Appellant Jerome Diego Brown appeals from the trial court’s denial of his

second motion for DNA testing in trial court cause number 0514634D (our cause

number 02-15-00414-CR) and from the denial of his motion for DNA testing in

trial court cause number 0554991D (our cause number 02-15-00415-CR). In his

sole point, Appellant contends that the trial court erred by not appointing counsel

      1
          See Tex. R. App. P. 47.4.
for purposes of a Chapter 64 request for DNA testing. We dismiss the appeal in

cause number 02-15-00415-CR for want of jurisdiction, and because we hold that

the trial court did not abuse its discretion by failing to appoint counsel for

Appellant to file a motion for DNA testing in cause number 02-15-00414-CR, we

affirm the trial court’s order denying DNA testing in that cause.

Procedural History

      In 1996, in trial court cause number 0514634D, Appellant pled guilty to

aggravated assault on a peace officer, jailer, or guard with a deadly weapon, and

in exchange, the trial court sentenced Appellant to thirty-two years’ confinement

and dismissed trial court cause number 0554991D, which charged Appellant with

committing aggravated assault on a different peace officer, jailer, or guard. In

2013, we denied Appellant’s first motion for DNA testing in trial court cause

number 0514634D.2 In 2015, Appellant filed a second motion for DNA testing in

that case as well as a motion for DNA testing in trial court cause number

0554991D. The trial court denied the motion in each case.

Cause No. 0554991D/02-15-00415-CR

      Appellant concedes that the motion for DNA testing and appeal in trial

court cause number 0554991D (our cause number 02-15-00415-CR) are

“rendered moot” and that the “viable appeal” is in trial court cause number


      2
       Brown v. State, No. 02-12-00263-CR, 2013 WL 2631173, at *2–3 (Tex.
App.—Fort Worth June 13, 2013, no pet.) (mem. op., not designated for
publication).


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0514634D (our cause number 02-15-00414-CR). The State addresses the case

on its merits because Appellant did not move to dismiss the appeal.

      We typically have jurisdiction to consider an appeal by a criminal

defendant only when there has been a final judgment of conviction.3              While

Chapter 64 of the code of criminal procedure gives this court jurisdiction to

review a trial court’s denial of postconviction DNA testing in a case not involving

the death penalty,4 “[it] is not an invitation . . . to review . . . anything beyond the

scope” of the chapter.5 Chapter 64 applies to convicted persons.6 “Because

chapter 64 specifically provides that a convicted person may seek post-

conviction DNA testing, it follows that a person who has not been convicted is not

entitled to seek relief under chapter 64.”7 The trial court dismissed trial court


      3
       See Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961);
Sontiago Morales v. State, No. 02-04-00550-CR, 2005 WL 375495, at *1 (Tex.
App.—Fort Worth Feb. 17, 2004, no pet.) (mem. op., not designated for
publication).
      4
       Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006); In re Garcia,
363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.); Reger v. State,
222 S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 552
U.S. 1117 (2008).
      5
      Garcia, 363 S.W.3d at 822 (internal quotation marks omitted) (citing
Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005), and Reger,
222 S.W.3d at 513).
      6
       State v. Young, 242 S.W.3d 926, 929 (Tex. App.—Dallas 2008, no pet.);
see also Tex. Code Crim. Proc. Ann. arts. 64.01–.05 (West 2006 & Supp. 2016)
(referencing the “convicting court” and the “convicted person”).
      7
          Young, 242 S.W.3d at 929.


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cause number 0554991D in 1996; we therefore have no jurisdiction to consider

Appellant’s appeal from that matter,8 and Appellant had no standing to seek DNA

testing in that matter under Chapter 64.9          We dismiss the appeal in cause

number 02-15-00415-CR for want of jurisdiction.10

         As Appellant recognizes, his only viable appeal is in our cause number 02-

15-00414-CR. We therefore address his issue as it pertains to that case.

Cause No. 0514634D/02-15-00414-CR

         In his second motion for DNA testing filed in 2015, Appellant stated,

                Thus, Movant maintain[s] he is innocent of the crime[,] and but
         for ineffective assistance of counsel[,] Movant would have fought his
         case in self-defense, but for the attack of Officer James M. Smith’s
         assault from behind putting Movant in fear for his own life, when the
         struggle went down.

Appellant stated that he was entitled to counsel but was prepared to proceed

pro se as long as the trial court provided him with “a complete copy of the record,

including police reports, witness statements, affidavits, medical exam reports,

motions, transcripts, etc.”

         The State filed a reply as well as proposed findings of fact and conclusions

of law. The proposed findings included findings that Appellant had pled guilty


         8
             See Workman, 343 S.W.2d at 447; Sontiago Morales, 2005 WL 375495,
at *1.
         9
             See Young, 242 S.W.3d at 929.
         10
              See id.; Sontiago Morales, 2005 WL 375495, at *1; see also Tex. R. App.
43.2(f).


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pursuant to a plea agreement and that he did not appeal his conviction. The

proposed conclusions of law included conclusions that because Appellant had

alleged that this was a self-defense case, he failed to raise an issue of identity,

and because identity was not at issue, there were no reasonable grounds for

filing a motion for DNA testing. The trial court adopted the State’s findings and

conclusions and denied the motion for DNA testing.

      In his sole point, Appellant argues that the trial court erred by not

appointing counsel for purposes of a Chapter 64 request for DNA testing. We

review the trial court’s ruling on a Chapter 64 issue under a bifurcated standard

of review.11 We afford the trial court almost total deference in the determination

of historical facts and in the application of law to those fact issues when they turn

on credibility and demeanor.12 We review de novo all other application-of-law-to-

fact questions.13

      Chapter 64 requires that the trial court grant DNA testing only if

             the trial court finds that the evidence to be tested

                  “still exists”

                  “is in a condition making DNA testing possible”; and

                  “has been subjected to a chain of custody sufficient to establish

      11
       Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App.), cert. denied,
543 U.S. 864 (2004).
      12
           Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008).
      13
           Id.


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                 that it has not been substituted, tampered with, replaced, or
                 altered in any material respect”;

            the trial court finds that it is reasonably likely “that the evidence
             contains biological material suitable for DNA testing”;

            the trial court finds that identity is or was an issue in the case; and

            “the convicted person establishes by a preponderance of the
             evidence that”

               he would not have been convicted if DNA testing had exculpated
                him; and

               his request for DNA testing is not made to unreasonably delay
                justice or the execution of his sentence.14

      In concluding that appointment of counsel was not required, the trial court

found that Appellant had “failed to raise an issue as to identity” based on his

admissions in his motion that he had committed the offense in self-defense. The

law is well-established that self-defense “fails to raise an issue as to the identity

of the perpetrator of the alleged offense, which is required under the plain

meaning of article 64.03(a)(1)(B).”15 We hold that the trial court properly found

that Appellant failed to raise an issue of identity. Consequently, Appellant failed


      14
       Tex. Code Crim. Proc. Ann. art. 64.03(a); State v. Swearingen,
478 S.W.3d 716, 720 (Tex. Crim. App. 2015), cert. denied, No. 15-1377, 2016
WL 2839840 (Oct. 3, 2016).
      15
       Reger, 222 S.W.3d at 514; see also Peyravi v. State, 440 S.W.3d 248,
249 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Birdwell v. State,
276 S.W.3d 642, 646 (Tex. App.—Waco 2008, pet. ref’d); Lyon v. State,
274 S.W.3d 767, 770 & n.1 (Tex. App.—San Antonio 2008, pet. ref’d); In re
State ex rel. Villalobos, 218 S.W.3d 837, 840–41 (Tex. App.—Corpus
Christi 2007, orig. proceeding) (holding trial court abused its discretion in
granting DNA testing because self-defense is not an identity concern).


                                           6
to meet the statutory preconditions for granting his request for DNA testing.16

       The Texas Court of Criminal Appeals has pointed out that in postconviction

DNA cases, “[t]he entitlement to appointed counsel . . . is conditioned on three

criteria.”17    One of those three criteria is that the movant have “reasonable

grounds” for filing a motion under the requirements of article 64.03.18 Because

identity is not an issue in this case, and DNA testing would resolve no significant

issue in this case, the trial court was not obligated to grant the motion for DNA

testing.19 Appellant did not raise reasonable grounds for a motion to be filed.20

The trial court, therefore, did not abuse its discretion by not appointing counsel

for filing a motion for DNA testing because the record reflects no reasonable

grounds for a motion to be filed.21 We overrule Appellant’s sole point.

Conclusion

       We dismiss the appeal in cause number 02-15-00415-CR for want of

jurisdiction, and, having overruled Appellant’s only point, we affirm the trial




       16
            See Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
       17
            Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010).
       18
       Id.; see Ex parte Gutierrez (Gutierrez II), 337 S.W.3d 883, 891 (Tex.
Crim. App. 2011).
       19
            See Bell, 90 S.W.3d at 304.
       20
            See Gutierrez II, 337 S.W.3d at 891.
       21
            See id.


                                           7
court’s order denying postconviction DNA testing in cause number 02-15-00414-

CR.




                                               /s/ Lee Ann Dauphinot
                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

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

DELIVERED: October 13, 2016




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