Affirmed and Memorandum Opinion filed July 3, 2014.




                                         In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00035-CR

               THOMAS DEWAYNE MORELAND, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                        Trial Court Cause No. 54671-1

                 MEMORANDUM                       OPINION


      This is an appeal from the trial court’s denial of appellant’s post-conviction
motion for DNA testing. In a single issue, appellant argues the trial court erred in
failing to appoint counsel. We affirm.

      On May 8, 2008, appellant was convicted on his plea of guilty to murder and
aggravated sexual assault. Pursuant to a plea bargain agreement with the State, the
trial court sentenced appellant to confinement for 50 years. On October 9, 2013,
appellant filed a motion for DNA testing under article 64.01 of the Texas Code of
Criminal Procedure. In his motion appellant requested testing of (1) a fingerprint
on the victim’s window; (2) a telephone cord; (3) a vegetable can alleged to have
been used to hit the victim in the head, (4) a pair of pants alleged to contain the
victim’s blood; and (5) vaginal swabs from the victim.

      The State responded, stating that appellant confessed to sexual intercourse
with the victim. He further confessed to murdering the victim by hitting her with a
green bean can and choking her. In his statement appellant claimed the victim’s
blood was on the black pants he had been wearing, and that he chewed through the
telephone cord to prevent anyone from calling the police. The can found at the
murder scene was checked for fingerprints, but none were found. The pants were
retrieved from a storage unit, but were found not to have blood on them. DNA
testing of the pants did not show DNA from appellant. DNA testing was conducted
on the telephone cord and bean can, and appellant’s DNA was found on both.
Finally, DNA was conducted on vaginal swabs taken from the victim, and the
results showed commingled DNA from the victim and appellant.

      The trial court denied appellant’s motion for DNA testing on the grounds
that appellant (1) failed to establish that identity is or was an issue; (2) failed to
show by a preponderance of the evidence that he would not have been convicted if
exculpatory DNA results are obtained; and (3) failed to show that evidence
previously subjected to DNA testing could 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. The court denied
appellant’s request for appointment of counsel because he failed to “show
reasonable grounds for the appointment of counsel as required under Article
64.01(c) of the Code of Criminal Procedure.”

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      On appeal, appellant argues the trial court erred in failing to appoint counsel
for the purpose of bringing his motion for DNA testing. Appellant argues that
appointment of counsel is mandatory in a post-conviction proceeding seeking
DNA testing if the convicted person proves he is indigent and informs the court he
wishes to file a motion for DNA testing. Appellant cites Winters v. Presiding
Judge of the Crim. Dist. Ct. No. 3 of Tarrant County, 118 S.W.3d 773 (Tex. Crim.
App. 2003), in support of his request for appointment of counsel. The holding in
Winters, however, was superseded by amendment to article 64.01 of the Code of
Criminal Procedure. See Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim.
App. 2011) (recognizing that entitlement to appointment of counsel “used to be
absolute, but it is now conditioned on the trial judge’s finding ‘that reasonable
grounds exist for the filing of a motion.’”).

      The purpose of DNA testing under article 64.03 of the Code of Criminal
Procedure is to provide an avenue by which a defendant may seek to establish his
innocence by excluding himself as the perpetrator of the offense. See Blacklock v.
State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007) (exoneration by exclusion
of a defendant as the DNA donor “is precisely the situation in which the
Legislature intended to provide post-conviction DNA testing.”). A trial court is not
required to order DNA testing under circumstances where, as here, the appellant
admitted to being the perpetrator. See Peyravi v. State, — S.W.3d — 2013 WL
5947334 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (identity was not at issue
where defendant admitted he stabbed his girlfriend, but claimed self-defense);
Lyon v. State, 274 S.W.3d 767, 769 (Tex. App.—San Antonio 2008, pet. ref’d)
(same). Because appellant judicially confessed to murder, identity was and is not
an issue. The trial court did not abuse its discretion in denying appellant’s motion
for post-conviction DNA testing.


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      Appellant’s entitlement to appointment of counsel for purposes of a post-
conviction DNA motion is conditioned on the trial court’s finding that reasonable
grounds exist for filing the motion. See Ex parte Gutierrez, 337 S.W.3d at 889.
Because identity was not at issue, appellant has failed to set forth reasonable
grounds for filing the motion; therefore, the trial court’s denial of appellant’s
request for appointment of counsel was not error. We overrule appellant’s sole
issue and affirm the trial court’s judgment.



                                               PER CURIAM



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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