                                  NO. 12-12-00382-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

ALEX DALTON INGRAM,                                 §            APPEAL FROM THE 7TH
APPELLANT

V.                                                  §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §            SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
        Alex Dalton Ingram appeals from the trial court‟s order denying his motion for DNA
testing. Appellant raises three issues on appeal. We affirm.


                                            BACKGROUND
        Appellant was charged with murdering his daughter, Natalie Sheri Ingram. He pleaded
nolo contendere and stipulated that on or about May 6, 1989, he intentionally and knowingly
caused the death of Natalie by striking her head. Appellant was found guilty of his daughter‟s
murder and sentenced to imprisonment for life.
        Once in prison, Appellant began to doubt his guilt. He filed an appeal, and this court
affirmed the trial court‟s judgment.1 According to Appellant, he also filed two habeas corpus
applications, but both were denied.



        1
           See generally Ingram v. State, No. 12-90-00343-CR (Tex. App.–Tyler Jan. 31, 1992, no writ) (not
designated for publication).
        He then filed a motion for DNA testing.2 In his motion, he sought authorization, not for
testing his own DNA but for testing as to the cause of death of his daughter. He believed that
testing would demonstrate that sudden infant death syndrome contributed to or “may have actually
caused” the death of his daughter.            On October 15, 2012, without appointing counsel for
Appellant or conducting a hearing, the trial court denied Appellant‟s motion. On November 7,
2012, Appellant timely filed a notice of appeal in this court. The clerk of this court forwarded
Appellant‟s notice of appeal to the trial court. See TEX. R. APP. P. 25.2(c)(1).


                                               DNA TESTING
        In his first issue, Appellant argues that the trial court abused its discretion when it denied
his motion for DNA testing. In his second issue, he contends that the trial court erred by failing to
appoint counsel for him. And in his third issue, he argues that the trial court erred by failing to
conduct a hearing on his motion.
Standard of Review and Applicable Law
        In reviewing a trial court‟s denial of a motion for DNA testing, we utilize a bifurcated
standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We usually
give “almost total deference” to the trial court‟s findings of historical fact and application of law to
fact issues that turn on witness credibility and demeanor, but consider de novo all other application
of law to fact questions. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011).
        A convicted person may move for DNA testing of evidence containing biological material
that was in the State‟s possession during trial (1) if that evidence was not previously subjected to
DNA testing or (2) if it was previously tested, but can be subjected to testing with newer testing
techniques that provide a reasonable likelihood of results which are more accurate and probative
than the results of the previous test. TEX. CODE CRIM. PROC. ANN. art. 64.01(b) (West Supp.
2012). To be entitled to the testing, the convicted person must also show that (1) the evidence is
available for testing, (2) it has been subjected to a sufficient chain of custody to establish that it has
not been altered in any material way, (3) identity was or is an issue in the case, and that (4) by a
preponderance of the evidence, he would not have been convicted if exculpatory results had been

        2
            TEX. CODE CRIM. PROC. ANN. arts. 64.01-.05 (West 2007 & West Supp. 2012).

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obtained through DNA testing, and the request is not made to unreasonably delay the execution of
sentence or administration of justice. See id. art. 64.03(a) (West Supp. 2012). A convicted
person who pleaded guilty or nolo contendere or made a confession or similar admission in the
case may submit a motion for DNA testing, and the trial court may not deny the motion solely on
the basis of that plea, confession, or admission. Id. art. 64.03(b) (West Supp. 2012).
       “The identity requirement in Chapter 64 relates to the issue of identity as it pertains to the
DNA evidence.” Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). To be entitled to
the testing, the convicted person must demonstrate that the DNA testing would determine the
identity of the perpetrator or would exculpate the accused. Id.
       An indigent convicted person filing a motion for DNA testing has a limited right to
appointed counsel conditioned, in part, on the trial court‟s finding that reasonable grounds exist for
the motion. TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2012).                 “Reasonable
grounds are present when the facts stated in the request for counsel or otherwise known to the
convicting court reasonably suggest that a „valid‟ or „viable‟ argument for testing can be made.”
Ex parte Gutierrez, 337 S.W.3d at 891.
       A trial court is not required to conduct a hearing on a convicted person‟s motion for DNA
testing. Whitaker, 160 S.W.3d at 8.
Application
       Appellant misunderstands the nature of DNA testing. In DNA testing, biological material
is tested to determine the identity of the donor. In his motion for DNA testing, Appellant
acknowledges that only he and his daughter were in the room when she died. Instead of using
DNA testing to determine identity of either the perpetrator or of someone who would exculpate
him, Appellant seeks to prove that his daughter‟s death was caused by sudden infant death
syndrome rather than by his striking her head. DNA testing establishes identity. See TEX. CODE.
CRIM. PROC. ANN. art. 64.03(a)(1)(B) (West Supp. 2012). It does not establish cause of death.
See id. Thus, Appellant‟s motion for DNA testing is deficient in that it failed to establish that
identity was or is at issue. See Prible, 245 S.W.3d at 470. For the same reason, he failed to
establish reasonable grounds for the motion, and therefore was not entitled to appointed counsel.
See Ex parte Gutierrez, 337 S.W.3d at 891. Finally, he was not entitled to a hearing on his
motion. See Whitaker, 160 S.W.3d at 8. We overrule Ingram‟s first, second, and third issues.
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                                                    DISPOSITION
         Having overruled Ingram‟s first, second, and third issues, we affirm the judgment of the
trial court.


                                                                BRIAN HOYLE
                                                                  Justice



Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)


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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 25, 2013


                                         NO. 12-12-00382-CR


                                    ALEX DALTON INGRAM,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                              Appeal from the 7th Judicial District Court
                            of Smith County, Texas. (Tr.Ct.No. 7-89-284)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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