AFFIRNI; Opinion issued December 21, 2012.




                                               In The
                                       nf Apiat
                                     nurt
                         FiftI! itric1 uf xa tt Ott1iu
                                       o. 05-11-01 141-CR


                               JIMMY SOL BOOKER, Appellant

                                                 V.

                               THE STATE OF TEXAS, Appellee


                        On Appeal from the 86th .Judicial District Court
                                   Kaufman County, T
                                Trial Court Cause No. 16390


                                           OPINION
                          Before Justices Moseley, Fillmore. and Myers
                                  Opinion By Justice Fillmore

       Prose appellant Jimmy So! Booker appeals the trial court’s denial of his second motions for

post-conviction forensic DNA testing under chapter 64 of the code of criminal procedure and for

appointment of counsel. Booker brings five points of error generally contending (1) the trial court

erred by denying his second motion for post-conviction forensic DNA testing of “untested biological

evidence”; (2) the State violated his due process rights by failing to respond to his second motion

for post-conviction forensic DNA testing and refusing to provide for DNA testing of requested

untested items: (3) the trial court’s findings regarding Booker’s second motion for post-conviction

forensic DNA testing were not “meaningful” and, therefore, “violated principles of appellate

review”; (4) the State failed to carry its burden beyond a reasonable doubt by not performing forensic
\ testing
1
1)N                   01   evidence, which may have been exculpatory, inculpatory, or inconclusive; and (5)

the trial court erred by denying his second request for appointment of counsel.t We affirm the trial

court s     order denying Hooker’s second motions for posLconviction forensic DNA testing and for

apl)Oiuhlfleflt       of counsel.

                                                                  Background

                                                           Booker’s First Appeal

           On June 12, 1991 Booker was sentenced to life imprisonment for aggravated sexual assault.
                                      ,




We affirmed Booker’s                 conviction on          appeal. Booker             i’.   State, No. 05—91—01071—CR. 1993 WL

541415, at        *   11 (Tex. App.—Dallas Dec. 28, 1993, pet. ref’d) (not designated for publication)

(Booker 1.

           At trial, evidence was admitted that Booker’s hair samples were sent to a trace—element

analyst,    who testified that, under microscopic examination, Booker’s pubic hairs matched some of

the pubic hairs found in the seat cover of the victim’s car. A vaginal swab obtained from the victim

and Booker s blood samples were sent to GeneScreen. a genetic testing laboratory. The laboratory



           As part of the introduction to his brief. Booker lists the following “questions presented for review”:

           Whether the record evidence in this case, raises serious doubts or concerns that appellant was possibly incarcerated for at least
           twelve (12) years, before the vaginal swab was ‘actually’ tested in May of 2002/by the Texas Department of Publie
           Safr’ts/( Garland)
           Whethcrthepostcons iv’tion ‘inconclusive results found in thedistrict courts !sicj April 3rd 7(g)3 order, sic! relieves thestate
           of its burden to prove “guilt beyound sic! a reasonable doubt” when the states sic! key vvitness has admitted the test results
           used at appellant’s trial presented to the jury as a match. were in reality, “inconclusive”?
           Whether the evidence appellant presented in his motion, altidavit. and appendixed exhibits, raised sufficient evidence to
           discredit the state’s key witness, Dr. Robert C. Giles and testing conducted by Genescreen’s Laboratory?
           Whether the evidence taken as a whole, compounded by suggestive police procedures ‘irreparably suggestive identification,
           and dragging appellant into a lineup (absent his counsel) led to appellant’s wrongful conviction’?
           Whether any circumstance, or evidence in this case, can he called into question by the District Court. or Fifth District Court
           of Appeals, so as to appoint a “special commission” to review thecircumstanees and facts and make a finding ordetermination
           as to whether appellant should he entitled “to a new trial as a matter of law” or a tuffiash-type hearing’.’ SEE ‘fuffiash V. State
           87S SW 2d (1)197 whether any’ failure to hold an evidentiarv hearing as was done Ibra similarly-situated defendant uuffiash)
           !denies appellant equal protections of the law and would result in a mmsearnage of justice!?

I lowever. these “questions” are not the “grounds ofeiTor” Booker raises and argues in his brief, Accordingly’, we addm’ess the five “grounds of error
argued by Booker in his brief.


           Our recitation regarding the evidence at trial is taken from our opinion affirming Booker’s conviction. See Booker!, 1993 WL 541415.
analyzed the blood and swab and obtained a “I ifcprint” l.tttern ftr each. Id. at 2. the laboratory

determined that the Lifeprint pattern for Booker’s blood matched the pattern in the male substances

in the vaginal swab. Matching Lifeprint patterns for persons in Booker’s racial group living in North

America       could        occur in one person in 60.400,(X)() l)eople. Id.

                                                        Booker ‘,v Second Appeal

            In 2001 Booker filed a motion for postconviction forensic DNA testing of the vaginal swab.
                       ,




contending that the “evidence was previously tested. but now there are better ways to test that could

reasonably provide results that are more accurate than the results ot the prior test” and that it was

“highly probable that [hel would not have been prosecuted or convicted if results had been obtained

with reliable DNA testing.” The trial court appointed an attorney for Booker. On November 13.

2001, Bookers attorney and the State’s attorney filed an agreed motion for DNA testing pursuant

to chapter 64 of the code of criminal procedure. The trial court granted the motion.

           The vaginal swab was tested by the Texas Department of Public Safety’s Crime Laboratory

(DPS Crime Laboratory) in Garland. Texas. After the DNA testing, the trial court conducted a

hearing pursuant to article 64.04 of the code of criminal procedure.
                                                          3 Evidence presented at the

hearing showed the DNA typing of sperm cells recovered from the swab was examined at fourteen

loci. At six of the loci, Booker could not he excluded as the contributor of the sperm. Lorna

Beasley, the DNA analyst who tested the swab, testified the remaining eight loci gave no results or

inconclusive results. There was nothing about the test results that would exclude Booker from being

the contributor of the sperm on the vaginal swab. Beasley’s report concluded, “At these loci, the




            The version of anicle 64.04 applicable to Booker’s 2001 motion br pustco viction l6rensic DNA testing provided: ‘After examining
the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available
during the trial of the offense, it is reasonably probable that the person would not hase been convicted.” Act of Apr. 25, 2003, 75th Leg., R.S., ch.
13, 4, 2003 Tex. Gen. Laws 16, 16 (amended 2011) (current version at TEX. CODE CRIM, PROC. ANN. art. 64.04 (West. Supp. 2011)).




                                                                        —3—
piohahilitv ol selecting an unlelale(I person at random                           ho could he the source of this 1)NA prolile

is approximately 1 in 2,793XX) for Caucasians. I in 370,500 for Blacks, and 1 in 937,200 for

1 lispanics
  1

           i\her the hearing, the trial           court    entered Written findings which included the following:

           3. On March I 2, 2003, the Court heard the results of courtordered DNA testing.
           The DNA analysis was performed by the Texas Department of Public Safety in the
           Garland Crime Lab. The Department analyzed a vaginal swab taken Irom the victim
           in the case in October ol I 990. They also analyzed a blood specimen taken from the
           [)efendant on March 15. 2002.
           4. Of the 14 loci analyzed, the sperm li’action of the vaginal swab was consistent
           with the l)NA profile of the Defendant on 6 loci. On the other eight loci. the testing
           was inconclusive.
           3. Isicl The Court finds the results of the DNA testing are not favorable to the
           applicant.
           4. I sic The Court further Onds, based on the unfavorable AND/OR inconclusive
           results of the DNA testing. that it is not reasonably probable that the applicant would
           not have been prosecuted or convicted in Cause No. 16.390.

           Booker appealed the trial court’s findings, in that appeal. Booker contended, among other

things, that the trial court erred in determining that the results of the DNA testing were not favorable

to him. Booker argued the test results did not support the unfavorable tmding because only six of

the fourteen loci examined did not exclude Booker as a donor.

           However, the remaining eight loci yielded either no result or an inconclusive result. None

of them excluded Booker as the donor. Thus, the fact that only six of the fourteen loci yielded a

result of not excluding Booker did not demonstrate a reasonable probability of innocence. Booker

r. State, 155      S.W.3d 259, 266—67 (Tex. App.—Dallas 2004, pet. ref’d) (Booker II).




             Beasley testitiedconceming thediffeince in the DNA testi gisultof(keScreen—matchin Lifeprint patterns for Biker’s racial group
living in North America could occur in one person in 60.4t)DJ)flO--—-and the DNA testing result of the DPS (‘rime Lahoratorv—the probability of
selecting an unrelated person at random who could be the source ol the DNA prolile for Bookers racial eroup is approximately one in 370.500.
GeneScreen conducted a re,triction fragment length polymorphism analysis I RFLPt. The DPS (‘rime Laborators utilized the polymerase chain
reaction (PCR) testing method. Beasley testified the RFLP loci are more discriminating than some of the PCR loci. However, many different areas
can be tested in the PCR. and the more areas from which results can be obtained in conducting DNA testing, the more discriminating the statistics
are that are generated from the testing.




                                                                    -4-
         In. that appeal, 13 no.1. or also arut.d th:e test results d.i.d r..ot support. t.Ite. ttia.1 court.’ S iinfii.vorabie

fi:.fld.ifli. because the                    did not perform                          DNA testing which, Boo4cer assertedi

was newer, more sophistIcated., abi.e to test smaller rnoLitrts of DNA.., and. better Su,i:t:ed t. testing the

DNA in this case. W statesi th the foct that. newer, more sophisticated means of testing DN                              ma.y

exist or that a better method of testing the DNA existed did not affect the trial court’s finding. Id.

at 267. “The issue is whether the test results actually obtained demonstrate a reasonable probability

of innocence; the issue is not what other, nonexistent, test results might have shown about

I,Booker’sl innocence” Id. After reviewing de novo all the evidence, we concluded the post

conviction test results did not demonstrate a reasonable probability of Booker’s innocence. Id,

Accordingly, we held the trial court did not err in finding the DNA test results were “not favorable”

to Booker, and we affirmed the trial court’s findings. Id.

                                                        Booker’s Third Appeal

          On March 24, 2011, Booker filed his second motions for postconviction forensic DNA

testing of biological evidence and for appointment of counsel. The trial court’s August 9,2011 order

denying Booker’s motions included the following:

                  [Bookerj has previously filed with the Court a motion for DNA testing and
          a request that an attorney be appointed. The Court appointed Rick Harrison as
          [Booker’s] attorney and ordered that an independent laboratory test the DNA. The
          results were highly unfavorable to [Bookerl, [Bookerj appealed to the Texas Court
          of Appeals and the trial court was affirmed.
                  I Booker] now files the same motions, namely for DNA testing and for
          appointment of attorney. The Court finds that there is no reasonable likelihood the
          result would be more accurate or probative than the results of the previous test.
          Accordingly, [Booker’s I motions are DENIED.

Booker filed this appeal of the trial court’s August 9, 2011 order.
                                                             5




          The State has not filed a brief or otherwise participated in this appeal.




                                                                       —5—
                                          Points ol LITOr Nos. I and 4

         Booker s lust and lourth points of error are related and essentially argue the same matters.

iheretore. we consider them together.

         In Booker s lirsi   point   ol error, he asserts the trial court CiTed   jil   denvinv his second   i1OtiOfl


br   post—conviction borensic J)NA testing of “untested biological evidence.                According to Hooker.

the record “clearly established” biological evidence remained in the possession of the State and had

not been tested.

         In his fourth point of error, Booker asserts the State “failed to uphold its burden beyond a

reasonable doubt by not testing pieces of evidence, which may have been exculpatory, inculpatory.

or inconclusive.’ Booker states evidence he sought to have tested “existed and that there was a

greater than a fifty percent chance he would not have been convicted if exculpatory results were

obtained.    Booker points to the post—conviction DNA testing conducted by the DPS Crime

Laboratory and the testimony at the hearing regarding that testing, wherein DNA analyst Beasley

testified she was able to obtain extracts from the lemale portion of the victim’s vaginal, hut ihe State

had not provided a sample from the victim to compare to the female’s extracts.

                                              Standard of Review

        The ruling on a motion for DNA testing is reviewed under a bifurcated standard of review.

See Whitaker   i.   State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). In Rivera v. State, 89 S.W.3d 55

(Tex. Crirn. App. 2002), the court of criminal appeals determined that the appropriate standard of

review in making the determination under article 64.03(a)(2)(A) is the standard set forth in Gu:maii

v. State. 955 S.W.2d 85 (Tex. Crim. App.1997). Rivera. 89 S.W.3d at 59. Under this standard, we

afford almost total deference to a trial court’s determination of issues of historical fact and its

application of the law to fact issues that turn on determinations of witnesses’ credibility and




                                                       —6—
demeanor, and     e review de novo the trial court s app! ication ol the law to lict issues that do riot

turn on determinations of witnesses credibility and demeanor, Id. (reviewing de novo “ultimate

question of whether a reasonable probability exists that exculpatory DNA tests would prove

innocence’): (Ju:inan, 955 S.W.2d at 89.




        Bookers second motion br postconviclion lorensic [)NA testing sought testing of

biological evidence which, according to Booker, “the record clearly established remained in the

possession of the State.” The version of article 64.() I in effect at the time of the filing of Booker’s

second motion for post—conviction forensic DNA testing provided that a convicted person may

submit to the eonvictmg court a motion for forensic l)NA testing of evidence that was secured in

relation to the offense that is the basis of the challenged conviction and was in the possession of the

state during the trial of the offense, but:

        (I) was not previously subjected to DNA testing:
        (A) because DNA testing was:
        (i) not available: or
        (ii) available. but not technologically capable of providing probative results or
        (B ) through no limIt of the convicted person. br reasons that are of a nature such that
        the interests of justice require DNA testing; or
        (2) although previously subjected to DNA testing, can be subjected to testing with
        newer testing techniques that provide a reasonable likelihood of results that are more
        accurate and probative than the results of the previous test.

Act of May 24.2007.80th Leg.. R.S.. ch. 1006. §2, 2007 Tex. Gen. Laws 3523—24 (amended 2011)

(current version at TEx. CoDE CRIM. PROC. ANN. art. 64.01(b)(West Supp. 2011)).

        Under article 64.03 of the code of criminal procedure, a convicting court may order forensic

DNA testing only if the court finds (1) the evidence still exists, is in a condition making DNA testing

possible. and 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 (2) identity was or is an




                                                 —7—
issue in the case. lix. ( ou                   CRIM,     PIwC. ANN. art. 64.03(a) (West 2011                       .“   “The conk let me trial

court shall order that the requested forensic DNA testing he conducted’ only if it finds that

untainted, testable biological evidence exists, that the identity ol the perpetrator was an issue (Art.

64.03( a )( l). and that the convicted person meets the requirements of Art. 64.03(a)( 2).” Lea! v.

Shire,   303 S.W.3d 292, 296—97 (‘fex, Crim. App. 2009) (quoting Fux. CoDuC1IM, PROC. ANN. all.

64.03(c)); see also Prible v, State. 245 S.W.3d 466, 467—68 (Tex, Crim. App. 2008) (defendant not

dntitle(l to DNA testinz under article 64.03 unless he shows “that unaltered evidence is available br

testing; that identity was an issue in the case: that there is greater than a 50 chance that he would

not have been convicted if DNA testing provided exculpatory results; and that the request is not to

delay the execution of the sentence.”).

           In his second motion for post—conviction forensic DNA testing. Booker urged the trial court

to “focus on the vaginal swab” of the victim. However, as reflected in the March 12, 2003 testimony

and the May 20, 2002 report of the DNA analyst who performed the DNA testing of the vaginal

swab and Booker’s blood sample drawn in 2002 pursuant to Booker’s                                        first motion for forensic            DNA



          Article 64.03   of   the code of criminal procedure provides:

          (a) A convicting court may order tbrensic DNA testing under this chapter only if:
           I ) the court finds that:
          (A) the evidence:
              still exists and is in a condition making DNA testing possible: and
           ii) has been subjected to a chain of custody stilficient to establish that it has not been substituted, tampered with, replaced.
          or altered in mv material respect: and
           B) identity was or is an issue in the case: and
          (2) the cons trted person establishes by a preponder:inee 01 the evidence that:
          (A) the person would not have been convicted if exculpatory results had been obtained through DNA iesting: and
          (B) the request for the proposed DNA testing is not m:ide to unreasonably delay the execution of sentence or administration
          of justice.

          (c) If the convicting court linds in the alhrmative the issues listed in Subsection (a)(l ) and the convicted person meets the
          requirements of Subsection) a)(2), the court shall order that the requested forensic DNA testing he conducted. The court may
          order the test to he conducted by-:
          (I) the Department of Public Safety:
          (2) a laboratory operating under a contract xx Oh the department: or
               on the request of the convicted person. another lahoraiorx if that laboratory is accredited under Section 11 1.0205.
          Government Code.

TEx. CODE CRtNI. PROC. ANN. art. 64.03 (West Supp. 2011).




                                                                          —8—
testing, the vaginal swab specimen was consumed                           in   the DNA analysis and there is no more of the

speclincli   let t. l3easlcv     test   IhC(l   she   was   not aware ol       any   additional samples available in this case.

iheretore, the evidence           at    the March 12, 2003 hearing established that the evidence of the vaginal

svab no lonner exists, making further 1)NA testing of sperm                                     from    the victim’s vaginal swab

impossible. We also note here that in Booker!!, in response to Booker’s point of error regarding the

trial courts purportcd error in not appointing an expert in the field of l)NA research to conduct DNA

testing independent of the DNA testing performed by the DPS Crime Laboratory, this Court noted

such additional testing “would have been impossible to perform because the testing by the DPS
                                                                                          I
Crime Laboratoryl consumed the I vaginall swab, leaving nothing for further testing.” Booker!!, 155

S.W.3d at 265.

          Under article 64.03 of the code of criminal procedure, a convicting court may order forensic

DNA testing oniy if the court finds the evidence still exists and is in a condition making DNA testing

possible .See TEx. Coon CRIM. PROC. ANN. art. 64.03(a)( 1 )(A)(i); Watson                                   ‘i’.   State. C)6 S.W.3d 497,

499 (Tex. App.—Amarillo 2002. pet. ref’d) (evidence at hearing                                   on   appellant’s motion ftr post-

conviction forensic DNA testing (lid not show that the evidence still existed and was                                       in a condition

making DNA testing possible). Accordingly, based upon our review of the trial court’s application

of the law to the fact issues of the case, we conclude the trial court did not err in denying Booker’s

second motion for postconviction forensic DNA testing when the record establishes the evidence

no   longer exists.

         In his appellate brief, Booker also refers to the State’s purported failure “to obtain a sample

for comparisons from the other victim’ of Ithe State’sJ case.” The record                                   in     this matter reflects       no




         [3casle s reportofflects that Bookers remaining blood specimens wtllcontinue to hestored froten to preserve the biological   constituents.




                                                                   —9—
 other” victim of an ot tcnse for which Booker was prosecuted. See Bok’r J I Q3 WL 541415. at

 I           Ilowever, apparently Booker refers to the testimony elicited from Ileaslev regarding the

extracts obtained from the victini’s vaginal swab (luring the DNA testing at the DPS Crime

I ahoraiorv.

         At the March 12. 2003 hearing. I3easley testified that when testing samples from vaginal

swabs that have the possibility of containing seminal fluid and vaginal epithelial cells, differential

extraction will first recover DNA from the epilhclial cell portion which is associated with the victim.

The second step in the extraction is to recover DNA from the sperm cell fraction.            Once the

differential extraction is (lone, the DNA samples are treated separately and “run” separately. Each

1)NA profile is examined separately and interpreted. Beasley’s report regarding the DNA testing

rellects this di fierential extraction was performed here: “The vaginal swab was extracted by a Iwo—

step method that first recovers DNA from non—sperm cells usually associated with the victim (the

epithelial cell fraction), and then recovers DNA from any sperm cells (the sperm fraction).”

         Beasley’s report reflects that the partial DNA profile from the sperm fraction of the vaginal

swab is consistent with the DNA profile of Booker. Beasley testified that in the DNA testing she

performed here, the victim’s vaginal swab epithelial cell fraction indicated “no reaction.” Beasley

did not “run” the remainder of the vaginal epithehial cell fraction, because she did not have a sample

from the victim to which she could compare the epithelial cells, and there was no reason to perform

that test.

         Under ailicle 64.03 of the code of criminal procedure, a convicting court may order forensic

DNA testing only if the court Finds identity was or is an issue in the case. TEx. CODE CRIM. PROC.

ANN. art. 64.03(a)( l)(B). “The identity requirement in Chapter 64 relates to the issue of identity as

it pertains to the DNA evidence. Therefore, if DNA testing would not determine the identity of the




                                                  —10--
person who committed the offense or would not exculpate the accused, then the requirement of ArL

64,03(a)(2)(A) has not been met,” Prihie, 245 S.W.3d at 470. Here, the female victim’s epithelial

cell fraction as separated in the DNA testing from the sperm fraction of the vaginal swab would not

exclude or exculpate Booker,     Evidence of the victnn’s DNA in addition to Booker’s is not

exculpatory evidence. See id. (“Thus, even if the evidence was retested and determined to contain

another person’s DNA in addition to Appellant’s DNA, it would not establish by preponderance of

the evidence that Appellant would not have been convicted if the jury had heard that DNA from a

thirdparty was present.”); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (presence of

another person’s DNA at the crime scene will not, without more, constitute affirmative evidence of

appellant’s innocence, and, where appellant set forth only bare assertion that biological samples in

question might belong to someone else, this was not sufficient); see also Prible, 245 S.W.3d at 469

(“There is no constitutional right to postconviction DNA testing in order to determine the presence

of a thirdparty’s DNA.”).

       “Article 64.03(a)(2)(A) requires the convicted individual to establish by a preponderance of

the evidence that a reasonable probability exists that he or she would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA testing.” Skinner v. State, 122

S.W.3d 808,811 (Tex. Crim. App. 2003); see also Tux, C0DECRIM. PROC. ANN. art, 64.03(a)(2)(A).

The Court of Criminal Appeals has interpreted that language as meaning “a reasonable probability

exists that exculpatory DNA tests will prove a convicted individual’s innocence.” Skinner, 122

S.W.3d at 811 (citing Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crirn. App. 2002)). “A trial court

is never required to grant a convicted person’s request for testing absent   .   .   .   a showing” that a

reasonable probability exists that he would not have been prosecuted or convicted if exculpatory

results had been obtained through DNA testing. Dinkins v. State, 84 S.W.3d 639, 643 (Tex. Crim.




                                               —l 1—
\pp. 20()2. Alter revics mu the icoid. we conclude the record supports the conclusion that Booker

tailed to satislv his burden ol showinu under article 6403(a >{ 2)(A > thai exculpatory iesuits could be

produced to paoe his innocence. Because Booker has laded to satisfy the requirements of chapter

64, we conclude the convicting court did not erroneously deny his second motion for post-conviction

forensic DNA testing.

        We resolve Booker’s first and fourth points of error against him.

                                       Points of Error Nos. 2 and 3

        Booker’s second and third points of error are related and essentially argue the same matters.

Accordingly. we consider them together.

        In his second point of error, Booker contends the State’s “refusal to respond or refusal to

release” the “untested items” has “deprived him of his liberty interest in utilizing state procedures

to obtain a reversal of his conviction and/or obtain a pardoti, reduction of sentence through executive

clemency which denies him of Isici procedural due process.” According to Booker, because the

State did not respond to his second motion for post-conviction forensic DNA testing, the trial court

“never had an opportunity to know if the items to he tested existed.” The relief Booker seeks in his

second point of error is a requirement that the State respond to his second motion for post-conviction

forensic DNA testing and reversal of the trial court’s denial of his second motion for post-conviction

forensic DNA testing.

        In his third point of error. Booker contends the trial court “violated the principles of appellate

review” by failing to provide meaningful chapter 64 findings. Booker argues article 64.02 of the

code of criminal procedure was violated because the State did not deliver purportedly existing

evidence to the trial court or a written explanation of why the purportedly existent evidence could

not be delivered to the trial court.




                                                  —12—
         We are    i ii   wr taded by i3ooker’ s second and third points of error. As discussed above with

regard   to   Ii is I irsi and luurtli points ol error, it was determined at the hearing on Booker’s first

motion for DNA test mu and reflected in the report of that testing, that the vaginal swab was

consumed in the test in perlormed b the l)PS Crime Laboratory. See Booker 1!. 1 55 S.W.3d at 265

(in response to Booker         s   point of error regarding the trial courts purported error   in Hot   appointing

an expert in the held of DNA research to conduct DNA testing independent of the DNA testing

performed by the DPS Crime Laboratory, such additional testing “would have been impossible to

perform because the testing by the IDPS Crime Lahoratoryl consumed the ivaginall swab, leaving

nothing for further testing.”).

         Further, the trial court (lid not err in proceeding under article 64.03 without a response from

the State to Bookers second motion for postconvict1on forensic DNA testing. “There is no free

standing due-process right to DNA testing, and the task of fashioning rules to ‘harness DNA’s power

to   prove innocence without unnecessarily overthrowing the established system of criminal justice’

belongs ‘primarily to the legislature.’” Lv par/c Guiierrez, 337 S.W.3d 883. 889 (Tex. Crim. App.

2011) (quoting Dix!. Attorney’s Office v. Osborne, 557 U.S. 52, 62 (2009)). Article 64.02 provides

that, upon receipt of a motion for forensic DNA testing, the convicting court shall require the

attorney representing the State to take one of the following actions not later than the sixtieth day after

the motion is served on the State: deliver the evidence to the court, along with a description of the

condition of the evidence, or explain in writing to the court why the State cannot deliver the evidence

to the court. Thx. CODE CRIM. PROC. ANN. art. 64.02(a)(2) (West Supp. 2011). Article 64.03 does

Hot require any evidentiary hearing before the trial judge decides whether a convicted person is

entitled to DNA testing. Exparte Gutierre, 337 S.W.3d at 893; see a/so Rii’era, 89 S.W.3d at

58—59. Article 64.02(b) specifically provides “the convicting court may proceed under article 64.03




                                                        —13—
allcr the sixty davi response period described by Subsection (a)(2) has expired, regardless of

whether the attumcv represent tug the state submitted a response under ihat subsect ion.” Tux.                                                  (‘   lIii


( k1M. PRx:. ANN. art. tt4.02(h): see                            0/5(1    Sej’eda e. Sinie. 301 S.W.3d 372. 375 (Tex.

App.—Amaril In 200k). pet. ret’d (article (4.02(h) “allows the trial                                           court     to proceed aller the

response period expires and regardless of whether the State tiled a response ).

           We resolve Booker’s second and third points of error against him.

                                                            Point of Error No. 5

           In his fifth point of error, Booker asserts the trial court abused its discretion when it denied

his second motion ftr appointment of counsel. According to Booker, if the trial court had appointed

him counsel in conjunction with his second motion for post—conviction forensic DNA testing,

counsel could have presented evidence to the court challenging the credibility of the State’s witness

at Booker’s trial, sought independent review of DNA tests at trial, located jurors that were misled

by the DNA “match” testimony at Booker’s trial, and shown a need for a defense expert.

           The arguments Booker advances [or his contention that the trial court ciTed in denying his

motion for appointment of counsel focus on what counsel could purportedly have done to address

matters involving Booker’s trial for the charged offense. Booker’s trial and conviction was the

subject of his first appeal, and the trial court’s judgment was affirmed. See Booker 1, 1993 WL

541415, at *1I

           Further, appointment of counsel in a post-conviction DNA proceeding is not a purely



            See also Morone i. Stale, No. 05-Il -()329-CR. 2() 12 WL 51)7126. at 3 (Tex, App—Dallas Mar. 13. 21)12. pet. filed) (not designated
for publication) (We also note that under article 64.020). the trial court was entitled to proceed under article 64.03 alter the response period expired.
regardless of hether the State tiled a response.1: In re 11’il/ianis. No. ((71 I -00429•CV. 2011 WL 5244959. at l (Tex. App—Amarillo Nov. 3.
2011, orig. proceeding)per curiam) (The convicting court may proceed under article 64.03 after the lapse of the sixty-day period, whether or not
the State responds to the motion —


            We note the record reflects that up to the time of Booker’s second motions for post-conviction forensic            testing and appointment
of counsel, at least four attorneys have been appointed to represent Booker, including counsel at trial.




                                                                         —14--
ministerial act. Sec In re Ludwig, 162 S.W3d 151, 455 (Tex. App.—Waco 2005, orig. proceeding).

An indigent cony icte(l person intending to tile a m            t ion   br post convict mu DNA   testing   has a

limited ris!ht to appointed counsel.         Under   article   (4.() 1(c) of the code of criminal procedure.

entitlement   1<) appomninlent   of counsel us conditioned on the trial judges finding that reasonable

!rom1ds   exist for the tiling of a motion   for   postconvict1on DNA testing. Sct’ Act of May 24, 2007.

80th Leg., R.S.. ch. 1006, §2, 2007 Tex. Gen. Laws 352324 (amended 2011) (convicting court shall

appoint counsel for the convicted person if he informs the court he wishes to submit a motion under

chapter 64, the court finds reasonable grounds for a motion to be filed, and the court determines the

person is indigent); Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (entitlement

to appointment of counsel in postconviction DNA proceeding is determined by three criteria: (1

defendant must inform the convicting court that he wishes to submit a motion for DNA testing; (2)

the convicting court must find that “reasonable grounds” exist for filing a motion for DNA testing;

and (3) the convicting court must find that the movant is indigent): In re Ludwig, 162 S.W.3d at 455

(even if the convicting court determines that a convicted person is indigent, the court would not he

required to appoint counsel if it found there were no reasonable grounds for the motion for forensic

DNA testing to be filed); see also Hughes v. State, 135 S.W.3d 926, 928 (Tex. App.—Dallas 2004,

pet. ref’d) (because there is no constitutional right to counsel in a proceeding under statutes

providing for forensic DNA testing, there is no constitutional right to effective assistance of’

counsel); Blake v. State. 208 S.W.3d 693,695—96 (Tex. App.—Texarkana 2006. no pet.) (trial courts

must now find reasonable grounds for the motion for DNA testing to he filed; concluding that

because the trial court had evidence no biological material still existed to submit for DNA testing,

trial court properly denied appointment of counsel because there were no reasonable grounds for a

chapter 64 motion for DNA testing to be filed).




                                                      —15—
          In our d lscUSJ)fl     ol   Booker s content ions reaI(1m2 his second     motion   br   post-conviction


borensic   DNA      testing,   we concluded Booker failed      to   provide reasonable grounds for his   fliotioll.


Having determined that Booker failed to meet the statutory requirements of articles 64.01 and 64.03,

the trial court s decision denying Booker’ s second motion for post-conviction forensic DNA testing

was not    error.   Ilence, we    cannot   say that the trial court erred in   denyin2   Bookers second motion

br appointment of counsel See Thx. (‘onu CRIM. PRO’. ANN. arts. 64.01 & 64.03 In re                      I_udwi,’,

162 S.W.3d at 455. We resolve Booker’s fifth point of error against him.

                                                     Conclusion

          Having resolved l3ooker’s points of error against him, we allirm the trial courts Augnst 9.

2011 order denying Booker’ s second motions for post-conviction forensic DNA testing and for

appointment of counsel.


                                                                     (4
                                                               ROBERT M. FILLMORE
                                                               JUSTICE

1)o Not Publish
Tux, R. App. P. 47




111 141F.U05




                                                        —16—
                                    (tnirt   iii   Appcthi
                        .iItIi Oi%tnrt        Li   LX&I M OZI11a

                                       JUDGMENT
JIMMY SQL BOOKER, Appellant                         Appeal from the 86th Judicial District Couii
                                                    of Kaufman County, Texas. (Tr.Ct. No.
No. (>5i 1)l I4LCR            V.                    16390).
                                                    Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appel lee                       Justices Moseley and Myers participating.


       Based on the Court’s opinion of this date, we AFFIRM the trial court’s August 9, 2011 order
denying appellant’s second motions for postconvicLion forensic DNA testing and for appointment
of counsel.



Judgment entered December 21 2012.
                               .




                                                    ROBERT M. FILLMORE
                                                    JUSTICE
