      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00187-CR



                                  Ardell Nelson, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-88-091413, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Ardell Nelson, Jr., was convicted of aggravated sexual assault of a child. See Tex.

Penal Code § 22.021. That case was investigated by the Austin Police Department (Department)

and prosecuted by the Travis County District Attorney’s Office (District Attorney). Approximately

two decades after his conviction, Nelson filed a motion seeking post-conviction DNA testing and

the appointment of counsel. After reviewing the motion and the State’s memorandum in opposition,

the district court issued an order denying Nelson’s motion for DNA testing and his request for the

appointment of counsel. Nelson appeals the district court’s order.

               In addition to challenging the district court’s order, Nelson presents other issues in

this appeal. First, Nelson asserts that he is innocent and that his conviction violates the Fourteenth

Amendment of the United States Constitution because the State failed to prove all of the elements

necessary as alleged in his indictment. Second, Nelson alleges that he received ineffective assistance
of counsel from his trial attorney and from his appellate attorney after the trial. Third, Nelson urges

that the judge presiding over his criminal trial was not impartial because the judge allowed the jury

to convict him and that the evidence presented during the trial was insufficient to support his

conviction. Finally, in his reply brief, Nelson alleges that the District Attorney presented argument

during his trial that violated his constitutional rights.

                This appeal was brought under chapter 64 of the Code of Criminal Procedure. That

chapter authorizes DNA testing in cases where the applicant meets the relevant requirements. Tex.

Code Crim. Proc. art. 64.03. Moreover, chapter 64 also gives appellate courts jurisdiction to review

an order by a trial court denying a request for post-conviction DNA testing for cases in which the

defendant was not given the death penalty. Id. art. 64.05. However, in an appeal from the denial of

a request for DNA testing, we may not consider any claims that fall outside the scope of chapter 64.

In re Garcia, 363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.).

                Accordingly, because Nelson’s claims are beyond the scope of chapter 64, “we do not

have jurisdiction under chapter 64 to consider” them. Id. Moreover, the time for presenting these

claims in a direct appeal has long since expired. See Tex. R. App. P. 26.1.1 For these reasons, we

dismiss these sets of issues for want of jurisdiction. See In re Garcia, 363 S.W.3d at 822.




        1
          We do note that claims regarding ineffective assistance of counsel may be raised for the first
time in a post-conviction habeas proceeding. See Ex parte White, 160 S.W.3d 46, 49 n.1 (Tex. Crim.
App. 2004). However, we do not have jurisdiction to consider those types of claims because the
Court of Criminal Appeals has “complete jurisdiction over post-conviction relief from final felony
convictions.” In re Garcia, 363 S.W.3d 819, 822 n.4 (Tex. App.—Austin 2012, no pet.); see Tex.
Code Crim. Proc. art. 11.07; Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for
Eighth Dist., 910 S.W.2d 481, 483-84 (Tex. Crim. App. 1995).

                                                    2
                As mentioned above, in this appeal, Nelson also challenges the district court’s order

denying his request for DNA testing and for the appointment of counsel. Under chapter 64 of the

Code of Criminal Procedure, “[a] convicted person may submit to the convicting court a motion for

forensic DNA testing of evidence containing biological material. The motion must be accompanied

by an affidavit, sworn to by the convicted person, containing statements of fact in support of the

motion.” Tex. Code Crim. Proc. art. 64.01(a-1). Furthermore, the convicting court may order DNA

testing “only if:


        (1) 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; and

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


Id. art. 64.03(a).

                In this case, Nelson filed a motion requesting DNA testing.2 In his motion, he asserted

that identity was an issue in his trial and that biological samples were taken from the victim for


        2
          We note that Nelson did not file an affidavit with his motion. However, Nelson did file an
affidavit several years earlier in a previous attempt to obtain DNA testing. Nelson included a similar
affidavit in his appellate briefing. In those affidavits, Nelson states that identity was an issue in his
criminal case, that two doctors ordered medical testing on samples taken from the victim, and that
the Department of Criminal Justice will not allow him to make copies of the court records from his
case to show that a doctor testified during the trial that the testing was done.

                                                     3
testing. Moreover, he alleged that at the time of the offense, the victim had a sexually transmitted

disease. Accordingly, Nelson contends that testing showing that the victim had the disease but that

he did not would establish by a preponderance of the evidence that he would not have been convicted

if those results had been obtained through testing during the trial. See id. art. 64.03(a)(2).

                A convicting court may base its decision regarding a chapter 64 claim on the sufficiency

of the State’s written explanation. Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d). In an appeal of a trial court’s decision regarding a chapter 64 claim,

reviewing courts “defer to the trial court’s determination of historical facts, and its application of

law to the facts if it turns on credibility and demeanor, and review de novo applications of law to the

undisputed facts.” Id. Under this standard, reviewing courts “defer to a trial court’s finding as to

whether the claimed DNA evidence exists and is in a condition to be tested.” Id.

                Attached to its memorandum in opposition, the State presented an affidavit from the

Department’s Evidence and Seized Property Manager, James Gibbens, stating that the Department

does not currently possess or have custody or control over any physical evidence pertaining to the

case. In its motion, the State also explained that during the trial only three exhibits were introduced

and that none of those exhibits contained any biological evidence. In addition, the State attached

an affidavit from a supervisor with the Travis County District Clerk’s Office (Clerk’s Office),

John Compton, in which he explained that the Clerk’s Office has those three exhibits but does not

have possession, control, or custody of any other exhibits relating to the case. Moreover, the State

also attached two affidavits from individuals working for the District Attorney. In the first affidavit,

an investigator for the District Attorney, Sergeant Perry Marteson, stated that the District Attorney



                                                   4
does not possess any physical evidence related to the case. Similarly, the Director of the Appellate

Division for the District Attorney, Bryan Case, Jr., stated in his affidavit that he searched all of the

files pertaining to Nelson but did not find any physical evidence in any of the files. Accordingly,

Case stated that it was his belief that the District Attorney does not possess any physical evidence

pertaining to the case.

                After reviewing the State’s response, the district court issued, among others, the

following findings of fact: that Nelson did not show that identity was an issue, that Nelson did not

establish that any biological material relating to his conviction still exists, and that the Department,

the District Attorney, and the Clerk’s Office do not have possession, control, or custody over any

physical evidence relating to the case. In addition, the district court also issued, among others, the

following conclusion of law: that Nelson failed to establish that any DNA evidence exists.

                As discussed above, a trial court is only required to order DNA testing under chapter

64 if the relevant statutory requirements are met. See Tex. Code Crim. Proc. art. 64.03(a)(1). One

of those requirements is a showing that the evidence still exists and is in a condition that makes

testing possible. Id. art. 64.03(a)(1)(A)(i). “Affidavit testimony from a relevant witness that no

biological evidence from the case is maintained or possessed is sufficient, absent any contrary

evidence, to support denial of a motion for forensic DNA testing.” Lewis v. State, 191 S.W.3d 225,

228 (Tex. App.—San Antonio 2005, pet. ref’d); see also Caddie, 176 S.W.3d at 289 (stating that

chapter 64 does not require State to present affidavit “from every laboratory and police agency in

the region”). Nelson did not offer any evidence contradicting the evidence presented by the State

that no biological evidence exists.



                                                   5
                In light of the standard of review governing this case and based on the record, we

conclude that the evidence is sufficient to support the district court’s determination that no DNA

evidence exists that is in a condition to be tested.

                Regarding Nelson’s claim that the district court erred by failing to appoint him

counsel, chapter 64 specifies that “[t]he convicting court shall appoint counsel for the convicted

person if the person informs the court that the person wishes to submit a motion under this chapter,

the court finds reasonable grounds for a motion to be filed, and the court determines that the person

is indigent.” Tex. Code Crim. Proc. art. 64.01(c). In its order, the district court determined that there

were “no reasonable grounds for a motion for such DNA testing to be filed” and, accordingly,

concluded that it was not obligated “to appoint counsel in this matter.” In this case, the district

court had evidence that no biological evidence existed that could be tested, and that same

evidence “provided a sufficient justification for the [district] court to determine there were no

reasonable grounds for the Chapter 64 motion to be filed.” See Blake v. State, 208 S.W.3d 693,

695 (Tex. App.—Texarkana 2006, no pet.). Accordingly, we cannot conclude that the district court

erred by failing to grant Nelson’s request for the appointment of counsel. See Ex parte Gutierrez,

337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (stating that courts have found that reasonable

grounds are not present if no evidence exists or if it has been destroyed); Lewis, 191 S.W.3d at 229

(determining that motion failed to establish reasonable grounds because it failed to show that

evidence still exists and that identity was an issue as required by chapter 64).

                For these reasons, we overrule Nelson’s issues challenging the district court’s

decision to deny his requests for DNA testing and for the appointment of counsel. Having overruled



                                                   6
these issues and having dismissed the remainder of Nelson’s issues for want of jurisdiction, we

affirm the district court’s order.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: March 5, 2014

Do Not Publish




                                                 7
