                                NO. 07-10-0235-CR
                                NO. 07-10-0236-CR
                                NO. 07-10-0237-CR
                                NO. 07-10-0238-CR
                                NO. 07-10-0239-CR

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL A

                               FEBRUARY 24, 2011

                        ______________________________


                        JOE MARVIN SLUTZ, APPELLANT

                                        V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

           FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

             NOS. 58,571-E, 58,572-E, 58,573-E, 58,574-E & 58,575-E;

                 HONORABLE DOUGLAS R. WOODBURN, JUDGE

                       _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             MEMORANDUM OPINION


      In 2008, Appellant, Joe Marvin Slutz, was convicted and sentenced as follows:

cause number 58,571-E, sexual assault of a childBtwenty years confinement; (2) cause

number 58,572-E, Count IBaggravated sexual assault of a childBconfinement for life;
Count IIBaggravated sexual assault of a childBconfinement for life; (3) cause number

58,573-E, aggravated sexual assault of a childBconfinement for life; (4) cause number

58,574-E, aggravated sexual assault of a childBconfinement for life; and (5) cause

number 58,575-E, aggravated sexual assault of a childBconfinement for life.                             His

convictions were affirmed by this Court. See Slutz v. State, Nos. 07-08-00434-CR, 07-

08-00435-CR, 07-08-0436-CR, 07-08-0437, and 07-08-0438-CR, 2009 Tex. App. LEXIS

8326 (Tex.App.--Amarillo Oct. 29, 2009, pet. dism'd).


        On March 12, 2010, Appellant filed, in each cause, a Motion for Post Conviction

DNA Testing Pursuant to Chapter 64 of the Texas Code of Criminal Procedure. As

required by article 64.02(a)(2)(B) of the Code, the State responded to Appellant's

motion by explaining that no evidence could be delivered for testing because none had

been collected. In its brief, the State explained that during Appellant's trial, the Sexual

Assault Nurse Examiner testified that she did not collect any samples for testing

because the last sexual assault had occurred outside a ninety-six hour period. No

hearing was held on Appellant's motion, and the trial court entered an order in each

cause denying the motion.1 Appellant now appeals the denial of his request for DNA

testing.




1
 Although the trial court's order is entitled "Order Denying Defendant's Motion for DNA Testing and
Appointment of Counsel," nowhere in his motions does Appellant request appointment of counsel.
Nevertheless, in the notices of appeal filed in cause numbers 07-10-0236-CR and 07-10-0237-CR,
Appellant complains that the trial court did not appoint counsel to represent him in pursuing DNA testing.
Entitlement to appointed counsel to pursue DNA testing is not absolute. The convicted person must meet
three criteria: (1) inform the trial court that he wants to submit a motion for the appointment of counsel;
(2) the trial court must find that "reasonable grounds" exist for the filing of the motion; and (3) the trial
court must find that the convicted person is indigent. Gutierrez v. State, 307 S.W.3d 318, 321
(Tex.Crim.App. 2010).


                                                     2
       Relying on McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App. 1981), Appellant

argues that "[t]he rule is well settled that where the state introduces an exculpatory

statement or confession of a defendant it is then bound to disprove it and failure to do

so is grounds for acquittal." Id. at 217. McKenzie has no application to this appeal from

the trial court's denial of a request for DNA testing. Furthermore, Appellant does not

brief nor argue entitlement to appointed counsel or challenge the trial court's rulings.

See Tex. R. App. P. 38.1(i). Nevertheless, we will construe his brief as a challenge to

the denial of his motions for DNA testing.


       We review the trial court's decision to deny DNA testing under the bifurcated

standard announced in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Chapter 64 of the Texas

Code of Criminal Procedure provides that a convicting court may order forensic DNA

testing only if it finds the evidence Astill exists and is in a condition making DNA testing

possible.@ Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2010). The burden is

on the convicted person to establish by a preponderance of the evidence that he would

not have been convicted if exculpatory results had been obtained through DNA testing,

and the request for the proposed DNA testing is not made to unreasonably delay the

execution of sentence or administration of justice. Art. 64.03(a)(2). Simply stated, the

convicted person must show the existence of a reasonable probability that exculpatory

DNA tests would prove his innocence.             Kutzner v. State, 75 S.W.3d 427, 439

(Tex.Crim.App. 2002).


       Additionally, the Court of Criminal Appeals has held that A[n]othing in Article

64.03 requires a hearing of any sort concerning the trial court=s determination of

                                             3
whether a defendant is entitled to DNA testing.@                    Rivera, 89 S.W.3d at 58-59.

Therefore, the trial court, in deciding whether the evidence to be tested still exists, may

reach its decision based on the sufficiency of the State=s written explanation of its failure

to deliver the requested evidence.               See Mearis v. State, 120 S.W.3d 20, 24

(Tex.App.BSan Antonio 2003, pet. ref=d).


        In the present case, the State explained there was no biological material to test.

Based on the sufficiency of the State's reason, the trial court concluded that Appellant

was not entitled to DNA testing.               Consequently, Appellant did not demonstrate

entitlement to appointed counsel or to DNA testing.2 We hold the trial court did not err

in denying Appellant's request for DNA testing in each cause.                        Appellant=s sole

contention is overruled.


        Accordingly, the trial court's orders are affirmed.




                                                         Patrick A. Pirtle
                                                             Justice



Do not publish.




2
 On January 25, 2011, Appellant filed an untimely Reply Brief. He complains that his conviction was
based on extraneous offense evidence. This issue was addressed and resolved against Appellant in his
direct appeals. See Slutz v. State, Nos. 07-08-00434-CR, 07-08-00435-CR, 07-08-00436-CR, 07-08-
00437-CR, and 07-08-00438-CR, 2009 Tex. App. LEXIS 8326 (Tex.App.--Amarillo Oct. 29, 2009, pet.
dism'd). His other complaints relate to alleged biological material. As the State explained, no biological
material was collected; thus, there is nothing to test. We overrule the arguments raised in Appellant's
Reply Brief.

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