                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00144-CR
                                No. 10-18-00145-CR
                                No. 10-18-00146-CR

ANTHONY LYNN THIBODEAUX,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                        From the 87th District Court
                          Freestone County, Texas
              Trial Court Nos. 12-154-CR; 12-155-CR; 12-156-CR


                          MEMORANDUM OPINION

      Anthony Lynn Thibodeaux was convicted in 2013 for the offense of sexual assault

of a child and two offenses of indecency with a child by contact. Those convictions were

affirmed. Thibodeaux v. State, Nos. 10-13-00466-CR, 10-13-00467-CR, and 10-14-00005-CR,

2015 Tex. App. LEXIS 7933 (Tex. App.—Waco July 30, 2015, no pet.) (not designated for

publication). He now appeals from the trial court’s denial of his motion for post-

conviction DNA testing in the three trial court case numbers. See TEX. CODE CRIM. PROC.
ANN. Ch. 64 (West 2018). Because the trial court did not err, its order is affirmed.

        In his first issue, Thibodeaux contends the trial court erred in denying his request

for post-conviction DNA testing when he met the standards detailed in Chapter 64 of the

Texas Code of Criminal Procedure. Specifically, he contends the evidence he requested

to be tested existed and was suitable for testing; identity was at issue in the underlying

cases; he may not have been convicted if the results were exculpatory; and DNA testing

would not unreasonably delay his sentence. See TEX. CODE CRIM. PROC. ANN. art. 64.03

(West 2018) (the requirements necessary for DNA testing to be ordered).1

        In reviewing a trial court's decision to deny a motion for post-conviction DNA

testing where, as it is in this case, the trial record and the affidavit of the appellant are the

only sources of information supporting the motion, we review a defendant’s issues de

novo. Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). Before the trial court

may order DNA testing, a defendant must comply with the requirements for a motion

for post-conviction DNA testing. See Swearingen v. State, 303 S.W.3d 728, 731 (Tex. Crim.

App. 2010) (“Chapter 64 requires multiple threshold criteria to be met before a convicted

person is entitled to DNA testing.“); Skinner v. State, 293 S.W.3d 196, 200 (Tex. Crim. App.

2009) (same). A motion for post-conviction DNA testing may only request testing of

biological evidence that was in the State's possession at the time of trial and that was

secured in relation to the offense of which the defendant was convicted. TEX. CODE CRIM.




1
 Thibodeaux also asserts that because the State failed to follow Chapter 64, the trial court erred in denying
his motion. Because of our disposition of the issue, we do not need to address this specific assertion.


Thibodeaux v. State                                                                                   Page 2
PROC. ANN. art. 64.01(b) (West 2018). Additionally, a motion must be accompanied by an

affidavit, sworn to by the convicted person, which contains statements of fact in support

of the motion. Id. (a-1).

       If evidence has already been tested, a defendant must also show in his motion that

the evidence, "although previously subjected to DNA testing, can be subjected to testing

with newer testing techniques that provide a reasonable likelihood of results that are

more accurate and probative than the results of the previous test." Id. (b)(2). The

defendant has the burden to show that newer techniques were available that would

reasonably result in more accurate results. See id.; Dinkins v. State, 84 S.W.3d 639, 642

(Tex. Crim. App. 2002). See also Swearingen, 303 S.W.3d at 733-34 (movant must articulate

more than mere assertions).

       Thibodeaux filed a motion for post-conviction DNA testing listing items to be

tested. In his supporting affidavit, he stated that the items “could have been submitted

for … newer testing,” but he did not explain further as to what the newer test would be

and why it would be more accurate than the method used prior to his trial. In response

to Thibodeaux's motion, the State informed the trial court by letter that items collected

were tested previously and were referenced in attached lab results.

       The trial court denied Thibodeaux's motion without a hearing. In findings of fact

and conclusions of law, the trial court determined, among other things, that Thibodeaux

failed to “show what newer testing is available that would provide a reasonable

likelihood that the results will be more accurate and probative than the previous tests

results.”

Thibodeaux v. State                                                                Page 3
        It was Thibodeaux's burden to show that newer techniques were available that

would reasonably result in more accurate results. Thibodeaux did not carry that burden

in his motion or supporting affidavit. Consequently, he did not provide statements of

fact necessary to support his motion as required by Chapter 64. TEX. CODE CRIM. PROC.

ANN. art. 64.01(a-1) (West 2018).

        Accordingly, because Thibodeaux failed to satisfy the requirements of Chapter 64,

the trial court did not err in denying Thibodeaux's motion for post-conviction DNA

testing. Thibodeaux’s first issue is overruled.

        In his second issue, Thibodeaux contends the trial court erred in denying forensic

DNA testing “when Chapter 64 was unconstitutionally applied to his situation[.]” It is

difficult to determine what, exactly, Thibodeaux is complaining about. It appears that

Thibodeaux asserts the statute is unconstitutional as applied to him because it permits

the State to refuse to provide access to evidence and information in violation of his right

to due process, and the Eighth, Sixth, and Fourteenth Amendments to the United States

Constitution.2

        "As applied" constitutional claims are subject to the preservation requirement and

therefore must be objected to at the trial court in order to preserve error. Reynolds v. State,

423 S.W.3d 377, 383 (Tex. Crim. App. 2014). Thibodeaux never raised a complaint about

the constitutionality of the statute in his motion for forensic DNA testing or in any




2
 In his reply brief, Thibodeaux seems to argue that the trial court violated his constitutional rights because
he met the requirements of Chapter 64. We have determined in the first issue that Thibodeaux did not
meet the requirements of Chapter 64, and the trial court did not err in denying his motion on that basis.

Thibodeaux v. State                                                                                    Page 4
document after the trial court’s ruling. Accordingly, his complaint is not preserved, and

his second issue is overruled.

        Having overruled each issue on appeal, we affirm the trial court’s order.




                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Senior Justice Scoggins3
Affirmed
Opinion delivered and filed February 13, 2019
Do not publish
[CR25]




3The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

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