                       IN THE COURT OF CRIMINAL APPEALS
                                   OF TEXAS

                                     NO. AP-77,026

                      ROBERT GENE LEOS GARZA, Appellant

                                             v.

                                THE STATE OF TEXAS

         ON DIRECT APPEAL FROM THE DENIAL OF DNA TESTING
         IN CAUSE NO. CR-0945-03-I IN THE 398 TH DISTRICT COURT
                          HIDALGO COUNTY



       Per Curiam.

                                      OPINION

       In December 2003, a jury found appellant guilty of the offense of capital murder. The

jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure

Article 37.071, and the trial court, accordingly, set appellant’s punishment at death. This

Court affirmed appellant’s conviction and sentence on direct appeal. Garza v. State, 213

S.W.3d 338 (Tex. Crim. App. 2007). Applicant filed his initial post-conviction application

for a writ of habeas corpus in the convicting court on January 11, 2006. This Court denied

applicant relief. Ex parte Garza, No. WR-70,257-01 (Tex. Crim. App. Sept. 10, 2008)(not
                                                                                    GARZA – 2

designated for publication). Subsequently, the trial court set an execution date of September

19, 2013.

       On September 6, 2013, just thirteen days before his scheduled execution, appellant

filed in the trial court a motion for post-conviction DNA testing pursuant to Chapter 64 of

the Texas Code of Criminal Procedure. The trial court denied the motion for testing, finding

that appellant had failed to show by a preponderance of the evidence (1) that he would not

have been convicted if exculpatory results had been obtained; and (2) that the motion was not

made to unreasonably delay the execution of sentence. Appellant filed a notice of appeal

regarding the court’s ruling. This Court now accelerates this appeal and reviews appellant’s

claims.

       After reviewing the record in the case and appellant’s pleadings, we find that the trial

court’s conclusions are supported by the record. The trial court’s ruling denying post-

conviction DNA testing is affirmed. No motions for rehearing will be entertained in this

case, and the Clerk of the Court is ordered to issue mandate immediately.

Do Not Publish
Delivered: September 19, 2013
