                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00215-CR

DAVID JAMES,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 12th District Court
                               Leon County, Texas
                              Trial Court No. 21,928


                          MEMORANDUM OPINION


      David James was convicted for the offense of aggravated sexual assault in June

2004 and punishment was assessed at 60 years confinement and a $10,000 fine. James

appealed from that conviction, and the trial court’s judgment was affirmed. James filed

a Petition for DNA Testing, and the trial court dismissed that petition. We affirm.

      The motion for DNA testing must be accompanied by an affidavit, sworn to by

the convicted person, containing statements of fact in support of the motion. TEX. CODE
CRIM. PRO. ANN. § 64.001 (a-1) (West Supp. 2013). A convicting court may order forensic

DNA testing under Chapter 64 of the Texas Code of Criminal Procedure 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; and

        (2) the convicted person establishes by a preponderance of the evidence
        that:

        (A) the person would not have been convicted if exculpatory results had
        been obtained through DNA testing; and

        (B) the request for the proposed DNA testing is not made to unreasonably
        delay the execution of sentence or administration of justice.


TEX. CODE CRIM. PRO. ANN. § 64.03 (a) (West Supp. 2013). In reviewing the trial judge's

Chapter 64 rulings, this Court usually gives "almost total deference" to the trial judge's

findings of historical fact and application-of-law-to-fact issues that turn on witness

credibility and demeanor, but we consider de novo all other application-of-law-to-fact

questions. Ex parte Guiterrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011).

        In his first issue, James complains that the trial court erred in failing to appoint

counsel to represent him during these proceedings.          An indigent convicted person

intending to file a motion for post-conviction DNA testing has a limited right to


James v. State                                                                           Page 2
appointed counsel. Ex parte Guiterrez, 337 S.W.3d at 889. The 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. PRO. ANN. § 64.01 (c) (West Supp. 2013).

        The trial court found that there were no reasonable grounds for James’s motion

to be filed. Guiding principles in determining whether there are “reasonable grounds”

include: that biological evidence exists, that evidence is in a condition that it can be

tested, that the identity of the perpetrator is or was an issue, and that this is the type of

case in which exculpatory DNA results would make a difference. Ex parte Guiterrez, 337

S.W.3d at 891. Courts have found that reasonable grounds for testing are not present if

no biological evidence exists or if it has been destroyed, or if identity was not or is not

an issue. Id. Reasonable grounds are present when the facts stated in the request for

counsel or otherwise known to the convicting court reasonably suggest that a "valid" or

"viable" argument for testing can be made. Id.

        The trial court’s order states that identity is not an issue in this case. The order

notes that the opinion of the appellate court supports a finding that identity was not an

issue. We do not find that the trial court erred by not appointing counsel for these

proceedings. We overrule the first issue.

        In the second issue, James argues that the trial court abused its discretion in

denying the petition for DNA testing because there was exculpatory evidence. The trial

court’s order states that James’s motion did not contain a sworn affidavit in support of

James v. State                                                                         Page 3
the motion or a statement of fact that he would not have been convicted if exculpatory

results had been obtained through DNA testing. The trial court further found that

identity was not an issue. After reviewing the record before us, we find that the trial

court did not err in denying the motion for DNA testing. We overrule the second issue.

        James asserts three other issues alleging error in the underlying trial proceedings.

The statute confers jurisdiction on this Court to review a trial court's order denying

post-conviction DNA testing in any case in which the death penalty is not imposed.

TEX. CODE CRIM. PRO. ANN. § 64.05 (West 2006).           However, Chapter 64 is not an

invitation to review every potential error in the underlying trial proceedings; it is

simply a procedural vehicle for obtaining evidence "which might then be used in a state

or federal habeas proceeding." In re Garcia, 363 S.W.3d 819, 822 (Tex. App.-Austin 2012,

no pet.). Accordingly, Chapter 64 does not confer jurisdiction on an appellate court to

consider "collateral attacks on the trial court's judgment or to review, under the guise of

a DNA testing appeal, anything beyond the scope of those articles."           Id. We lack

jurisdiction to consider James’s remaining issues on appeal.

        We affirm the trial court’s order dismissing James’s Petition for DNA testing.




                                           AL SCOGGINS
                                           Justice




James v. State                                                                        Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 12, 2013
Do not publish
[CR 25]




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