Opinion filed February 27, 2015




                                        In The


        Eleventh Court of Appeals
                                      __________

                                  No. 11-12-00349-CR
                                      __________

             DANIEL VASQUEZ DOMINGUEZ, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 104th District Court
                              Taylor County, Texas
                         Trial Court Cause No. 13674-B


                     MEMORANDUM OPINION
      Daniel Vasquez Dominguez appeals the trial court’s order denying his
motion for DNA testing of evidence related to his conviction for aggravated sexual
assault of a child. Because we conclude that the trial court did not err by denying
the motion, we affirm.
                                    Background Facts
      Appellant was indicted in 2000 for the offenses of aggravated sexual assault
of a child and indecency with a child. On January 8, 2001, he entered a plea of no
contest to the offense of aggravated sexual assault of a child. Pursuant to a plea
bargain agreement, the trial court deferred the adjudication of guilt and placed
Appellant on community supervision for eight years. The State subsequently filed
a motion to adjudicate. The trial court found that Appellant had violated the terms
and conditions of his community supervision, revoked his community supervision,
adjudicated his guilt, and sentenced him to confinement for thirty years. The
sentence was imposed in open court on February 10, 2006. Appellant attempted to
file a direct appeal from the judgment adjudicating guilt, but we dismissed the
appeal for want of jurisdiction because the appeal was not timely filed.
      On May 15, 2012, Appellant filed a pro se motion in the trial court for
postconviction forensic testing. The trial court appointed counsel for Appellant in
connection with the motion for postconviction forensic testing. Appointed counsel
subsequently filed a motion to withdraw that the trial court granted. Appellant
then filed this appeal. Upon our receipt of Appellant’s pro se notice of appeal, we
entered an order abating the appeal that required the trial court to make various
findings. Pursuant to our abatement order, the trial court made the following
findings:
           1. On July 28, 2000, the trial court determined that the
      Appellant was indigent.

             2. On February 10, 2006, the trial court revoked Appellant’s
      community supervision, convicted him, and sentenced him to 30 years
      in prison. The Appellant has remained incarcerated since that time.

           3. The trial court has received no information indicating any
      change in Appellant’s financial circumstances.

            4. Therefore, the trial court determines that Appellant is still
      indigent.
            5. On May 30, 2012, the trial court appointed Mr. Alex Eyssen
      to represent Appellant in obtaining DNA testing pursuant to Article
      64.01(c), Texas Code of Criminal Procedure.

             6. On December 19, 2012, the trial court[] allowed Mr. Eyssen
      to withdraw because he was closing his law practice and leaving the
      [S]tate of Texas.

              7. Appellant is not currently represented by counsel.

            8. Appellant’s attorney did not abandon the appeal; he was
      allowed to withdraw by the trial court.

              9. On October 31, 2012, the trial court issued an order finding
      that:
                     ---The State’s (criminal) case was based entirely
              on witness statements, and
                     ---No physical evidence was seized by law
              enforcement, and
                     ---No physical evidence was in possession of the
              State during the trial of the offense.

             10. In the October 31, 2012[] order, the trial court also found
      that the Appellant was not entitled to DNA testing; and, the trial court
      declined to order any DNA testing.

           11. There are no reasonable grounds for the Appellant to file a
      motion for forensic DNA testing.

           12. New counsel should not be appointed to represent the
      Appellant on appeal.

Upon receipt of the trial court’s findings, we reinstated this appeal.
                                       Analysis
      Appellant presents three issues on appeal.        In his first issue, Appellant
complains of the “denial of assistance of counsel.” In support of this issue, he
alleges that his appointed counsel was ineffective “assisting in the investigation of
evidence filed in another court.” Specifically, he contends that counsel did not
thoroughly investigate the evidence regarding his victim’s “pregnancy” case filed
in the 326th District Court of Taylor County. 1 In his second issue, he complains of
“violations of due process,” “ineffective assistance of counsel,” and “violation of
equal protection of the law.” In support of his second issue, he contends that trial
counsel was ineffective for failing to present evidence from the 326th District
Court.       In his third issue, Appellant complains of the “denial of forensic, DNA
testing hearing by Brady violations of exculpatory evidence related and filed in the
326th District Court.”
         This appeal was brought under Chapter 64 of the Code of Criminal
Procedure. This chapter authorizes DNA testing in cases where the applicant
meets the relevant requirements. TEX. CODE CRIM. PROC. ANN. art. 64.03 (West
Supp. 2014). Chapter 64 also gives appellate courts jurisdiction to review an order
by a trial court denying a request for postconviction DNA testing for cases in
which the defendant was not given the death penalty. Id. art. 64.05 (West 2006).
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.).                          “Chapter 64 is not an
invitation to review every potential error in the underlying trial proceedings;
instead, it is simply a procedural vehicle for obtaining evidence ‘which might then
be used in a state or federal habeas proceeding.’” Id. (quoting Thacker v. State,
177 S.W.3d 926, 927 (Tex. Crim. App. 2005)).
         A trial court is only required to order DNA testing under Chapter 64 if the
relevant statutory requirements are met. CRIM. PROC. art. 64.03(a). As noted
above, the trial court based its order denying Appellant’s request for DNA testing

         1
         The 326th District Court is a “family district court” that by statute “has primary responsibility
for cases involving family law matters.” TEX. GOV’T CODE ANN. §§ 24.601, 24.634 (West 2004).
on the fact that the State’s criminal case against Appellant was based entirely on
witness statements, that no physical evidence was seized by law enforcement, and
that no physical evidence was in possession of the State during the trial of the
offense.
        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. The clerk’s record contains a letter from an assistant
district attorney to Appellant’s counsel advising him that Appellant’s criminal case
“was based entirely on witness statements. There was no physical evidence of any
kind taken by the police.”2 There is also a letter in the clerk’s record from
Lieutenant David Atkins of the Taylor County Sheriff’s Office addressed to the
trial court that confirms this same information. 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 trial court’s determination that no DNA evidence exists.
        The bulk of Appellant’s claims on appeal focus on his efforts to obtain
evidence from another proceeding. By its express terms, Chapter 64 only applies
to the testing of evidence “that was secured in relation to the offense that is the
basis of the challenged conviction.” CRIM. PROC. art. 64.01(b). Accordingly,
Appellant’s claims seeking to obtain evidence from another proceeding are beyond

        2
        This letter also informs Appellant’s counsel that the file in the 326th District Court from which
Appellant sought evidence is a “closed and sealed file.”
the scope of Chapter 64, and the trial court did not err in denying Appellant’s
request to test the evidence from the family court proceeding.          Furthermore,
Appellant’s claims of ineffective assistance of counsel related to obtaining
evidence from the proceeding must also fail because the requested evidence was
beyond the scope of Chapter 64.
      Regarding Appellant’s request for the appointment of new 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.”           CRIM. PROC.
art. 64.01(c). The trial court initially appointed counsel for Appellant, but subse-
quently determined that “[t]here are no reasonable grounds for the Appellant to file
a motion for forensic DNA testing.” Based upon this determination, the trial court
concluded that it was not obligated to appoint new counsel on appeal. In this case,
the trial court had evidence that no biological evidence existed that could be tested.
That evidence provided sufficient justification for the trial court to determine that
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 trial court erred by failing to grant
Appellant’s request for the appointment of new 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).
      In his brief, Appellant additionally challenges his original conviction.
Chapter 64 does not confer jurisdiction upon this court to entertain collateral
attacks on the trial court’s judgment of conviction or to review, under the guise of
a DNA testing appeal, anything beyond the scope of the request to conduct DNA
testing. See Reger v. State, 222 S.W.3d 510, 512–13 (Tex. App.—Fort Worth
2007, pet. ref’d); Hooks v. State, 203 S.W.3d 861, 866 (Tex. App.—Texarkana
2006, pet. ref’d). Accordingly, we do not entertain Appellant’s challenges to his
original conviction.
      For the foregoing reasons, we overrule Appellant’s three issues challenging
the district court’s decision to deny his request for DNA testing and his request for
the appointment of new counsel.
                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 27, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
