                         NUMBER 13-18-00321-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ORLANDO CAMPOS,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the 156th District Court
                         of Bee County, Texas.


                         MEMORANDUM OPINION

            Before Justices Benavides, Hinojosa, and Tijerina
               Memorandum Opinion by Justice Hinojosa

      By one issue, appellant Orlando Campos appeals the denial of his request for post-

conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See

TEX. CODE CRIM. PROC. ANN. ch. 64. We affirm.

                                   I. BACKGROUND

      A Beeville County grand jury indicted Campos on one count of possession of a
controlled substance with intent to deliver, a first-degree felony, two counts of tampering

with physical evidence, both third-degree felonies, and one count of possession of a

firearm by a felon, a third-degree felony.            See TEX. HEALTH & SAFETY CODE ANN.

§ 481.112(d); TEX. PENAL CODE ANN. §§ 37.09(d), 46.04(a).

       Beeville Police Officer John Berry testified during the trial for these offenses. 1

See Campos v. State, No. 13-16-00569-CR, 2018 WL 2148755, at *1 (Tex. App.—Corpus

Christi–Edinburg May 10, 2018, pet. ref’d) (mem. op., not designated for publication).

Officer Berry testified that a vehicle failed to yield the right-of-way to his patrol car while

he was on duty, causing him to hit his brakes to avoid a collision. See id. Officer Berry

activated his emergency lights to initiate a traffic stop and began to follow the vehicle.

See id. He then witnessed it run a stop sign. See id.

       At this point, Officer Berry testified that he requested back-up assistance as he

realized the vehicle was not going to pull over voluntarily.               See id.     The vehicle,

however, eventually came to a stop. See id. Officer Berry recalled that he exited his

patrol car and yelled at the two occupants—later identified as Campos, the passenger,

and Campos’s brother Abraham, the driver—to turn off their vehicle. See id. Officer

Berry testified that he then saw “a lot of movement” between Abraham and Campos when

the vehicle suddenly sped away again. See id. Officer Berry, along with additional

police officers, gave chase. See id. During the vehicle chase, Officer Berry witnessed



       1 Campos previously appealed these convictions in Campos v. State, No. 13-16-00569-CR, 2018
WL 2148755, at *1 (Tex. App.—Corpus Christi–Edinburg May 10, 2018, pet. ref’d) (mem. op., not
designated for publication). His appeal argued that the trial court erred when it denied his motion to
suppress. See id. We affirmed the convictions. See id.

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Campos throw items out of the passenger-side window two times. See id. The vehicle

ran another red light and drove into an open field where it eventually stopped. See id.

Both occupants leapt out of the vehicle, and Officer Berry chased Campos on foot. Id.

Campos and his brother were both eventually apprehended. See id.

       When law enforcement returned to the area where Officer Berry witnessed

Campos throw items out of the window, they recovered “four baggies containing

methamphetamine, a .40 caliber pistol and a similarly sized magazine and bullets, and a

.45 caliber pistol and similarly sized bullets.” See id. at *3. They photographed both

pistols laying in the field near where the vehicle stopped. See id.

       The jury convicted Campos on all four counts and sentenced him to concurrent

terms of confinement of fifty years for the possession charge, forty years for each of the

tampering with physical evidence charges, and sixty years for the possession of a firearm

by a felon charge. See id. at *1.

       Campos, now an inmate at the Texas Department of Criminal Justice—Connally

Unit in Kenedy, Texas, filed a post-conviction request for DNA testing. See TEX. CODE

CRIM. PROC. ANN. ch. 64. In his motion, Campos claimed that the State should test the

pistols they recovered for his “DNA fingerprints.” He alleged that this testing would result

in “exculpatory results” that would have precluded his convictions. 2 The trial court denied

his request, as well as his request for court-appointed counsel to represent him in this



       2  We presume that Campos does not appeal his conviction for possession of a controlled
substance with intent to deliver, as he did not request the State to test the recovered baggies of
methamphetamines for fingerprints. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d).


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matter. 3      He now appeals.

                              II. APPLICABLE LAW AND STANDARD OF REVIEW

       Texas Code of Criminal Procedure chapter 64 establishes the procedures for a

convicted person to obtain post-conviction DNA testing. See id. The statute provides

that a convicting court may order forensic DNA testing under this chapter only if the court

finds that:

                  (A) the evidence:

                       (i)       still exists and is in a condition making DNA testing
                                 possible; and

                       (ii)      has been subjected to a chain of custody sufficient to
                                 establish that it has not been substituted, tampered with,
                                 replaced, or altered in any material respect;

                  (B) there is a reasonable likelihood that the evidence contains
                      biological material suitable for DNA testing; and

                  (C) identity was or is an issue in the case.

Id. § 64.03(a)(1). The convicted person must also establish by a preponderance of the

evidence that he or she would not have been convicted if exculpatory results had been

obtained through DNA testing, and that the request for DNA testing is not made to

unreasonably delay the execution of sentence or administration of justice. Id.

       The Texas Court of Criminal Appeals has held that the “ultimate question of

whether a reasonable probability exists that exculpatory DNA tests would prove

innocence is an application-of-law-to-fact question that does not turn on credibility and

demeanor and is therefore reviewed de novo.” Skinner v. State, 122 S.W.3d 808, 813


       3    Campos does not appeal the denial of his request for a court-appointed attorney.

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(Tex. Crim. App. 2003); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

Similarly, whether the request for DNA testing is made to unreasonably delay the

execution of sentencing or the administration of justice is an application-of-law-to-fact

question that is also given de novo review. Skinner, 122 S.W.3d at 813.

                                      III. ANALYSIS

      In Campos’s motion for DNA testing, he argued as follows:

      At all times identity [was] an issue in this case, by preponderance of the
      evidence, had the State tested the gun for DNA fingerprints, [Campos]
      would not have been convicted, if exculpatory results had been obtained
      through DNA testing.

In summary, Campos contends that if the State tests the pistols that were recovered for

his DNA, the testing will reveal that his DNA is not on them.

      We find this argument unpersuasive. Under § 64.03(a)(1)(C), identity must be at

issue in the case. See TEX. CODE CRIM. PROC. ANN. § 64.03(a)(1)(C). Identity was

never an issue in this case. During trial, Officer Berry testified that he twice saw items

being thrown from the passenger window of the vehicle in which Campos rode. Campos,

2018 WL 2148755, at *1. Campos was the only passenger in this car as his brother,

Abraham, was the driver. Because there was no question of identity, Campos did not

meet this threshold issue under chapter 64 to trigger any DNA testing.            See id.

Reviewing this case under a de novo standard, we hold the trial court did not err when it

denied Campos’s motion for post-conviction DNA testing.




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                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                      LETICIA HINOJOSA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of December, 2019.




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