             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           No. AP-76,281



                              IVAN ABNER CANTU, Appellant

                                                   v.

                                    THE STATE OF TEXAS

                             ON DIRECT APPEAL
                   FROM THE 380TH JUDICIAL DISTRICT COURT
                               COLLIN COUNTY


                 HOLCOMB, J., delivered the opinion of the unanimous Court.


        The trial court denied Ivan Abner Cantu’s motion for forensic DNA testing. We affirm.

        On January 23, 2001, a Collin County grand jury returned an indictment charging Cantu with

capital murder under Texas Penal Code § 19.03(a)(2) and (a)(7)(A). On October 3, 2001, the State

brought Cantu to trial before a petit jury. At the guilt stage of that trial, the State presented thirty-

four witnesses and Cantu presented none. The State’s witnesses testified in part1 as follows:



        1
         For the sake of brevity and clarity, we discuss only the highlights of the witnesses’
testimony.
                                                                                         CANTU -- 2

       Sometime in 1998 or 1999, James Mosqueda hired his cousin, Cantu, to work in his

mortgage banking business in Dallas. Sometime in mid-2000, Mosqueda terminated Cantu’s

employment.

       On October 15, 2000, Cantu, Amy Boettcher (Cantu’s girlfriend), and Jeff Boettcher (Amy’s

brother) moved into an apartment at 4753 Old Bent Tree Lane in Dallas. The apartment was located

about one mile from Mosqueda’s residence at 18663 Gibbons Street in Dallas.

       Sometime in late October 2000, Cantu told Jeff Boettcher that he intended to kill Mosqueda,

who was a part-time dealer in illicit drugs, in order to steal his money (around $13,000 in cash) and

his drugs (cocaine and marihuana).

       On November 3, 2000, at around 11:30 p.m., Cantu left the apartment in question and drove

away in his Honda automobile. Just before he left, he told Amy Boettcher that he was “going to go

kill” Mosqueda and his live-in fiancé, Amy Kitchen.2 About an hour later, Cantu returned to the

apartment. His face was swollen, and his clothes were bloody. He told Amy Boettcher, “It wasn’t

pretty.” He then instructed her to put his blue jeans into a bag, but, instead, she put them into their

kitchen garbage can.

       On November 4, 2000, members of the Dallas Fire Department, at the request of Amy

Kitchen’s mother, forcibly entered the Mosqueda residence. They found both Mosqueda and

Kitchen in their bedroom, dead of multiple gunshot wounds. Mosqueda was lying faceup in bed, and

Kitchen was lying facedown on the floor beside the bed. There was no indication of a struggle or

of forced entry into the residence (other than the firemen’s).



       2
          The evidence suggests that, at the time in question, Cantu was intoxicated due to the
ingestion of illicit drugs.
                                                                                        CANTU -- 3

       On November 5, 2000, at around 3:00 a.m., Dallas police found Mosqueda’s Chevrolet

Corvette automobile parked near the front door of Cantu’s apartment. Later that day, the Collin

County Medical Examiner performed autopsies on the bodies of Mosqueda and Kitchen. In the

course of the autopsies, the medical examiner retrieved one bullet from Mosqueda’s body and four

bullets from Kitchen’s body.

       On November 7, 2000, Dallas police searched Cantu’s apartment pursuant to a warrant. They

found, in the master bedroom, a set of keys hidden inside a man’s shoe. One of the keys, they later

learned, opened an exterior door of the Mosqueda residence. Another of the keys operated Amy

Kitchen’s Mercedes-Benz automobile. The police also found bloody blue jeans and bloody socks

in the kitchen garbage can. Subsequent forensic DNA testing revealed that blood on the blue jeans

matched Mosqueda’s blood and blood on the socks matched Kitchen’s blood.

       On November 9, 2000, Dallas police visited Tawny Svihovec, Cantu’s former girlfriend, at

her apartment in Dallas. Svihovec directed the police to a cabinet in her apartment, where the police

found a .380 caliber, semi-automatic pistol. Subsequent fingerprint testing revealed that latent

fingerprints on the pistol’s magazine matched Cantu’s fingerprints, and subsequent ballistics testing

revealed that bullets fired from the pistol matched the bullets retrieved from the victims’ bodies.

       At the conclusion of the guilt stage, the jury found Cantu guilty as charged in the indictment.

At the conclusion of the punishment stage, the jury answered the special punishment issues in such

a way that the trial court was required to assess Cantu’s punishment at death.

       On June 30, 2004, we affirmed the trial court’s judgment. Cantu v. State, No. AP-74,220

(Tex.Crim.App. 2004) (not designated for publication).

       On January 18, 2006, we denied habeas corpus relief without a written opinion. Ex parte
                                                                                           CANTU -- 4

Cantu, No. WR-63,624-01 (Tex.Crim.App. 2006).

        On October 1, 2009, Cantu filed a motion for forensic DNA testing and an affidavit in

support thereof. See Tex. Code Crim. Proc. art. 64.01. In his motion, Cantu requested the testing

of “fingernails recovered from the victims’ bodies” and “a hair recovered from the floor mat of

[Mosqueda’s] car.” Cantu argued inter alia that: (1) testing of the “biological material found under

the decedents’ fingernails . . . would exculpate” him and (2) testing of the hair “could be critical to

proving” that someone other than him drove Mosqueda’s Corvette on the night of the murders or the

following day. Cantu also argued that the State’s principal witness, Amy Boettcher, was a “doper”

and not credible, and that certain other evidence3 at trial “support[ed] the conclusion that [he] was

framed by the rival drug dealers truly responsible for James Mosqueda’s murder.”

        On December 4, 2009, the State filed its response to Cantu’s motion for forensic DNA

testing. In its response, the State argued inter alia that, although “[Cantu] wildly speculates that drug

dealers may [have] set him up, forensic [DNA] testing cannot prove that, and any results [would

have no] chance of exculpating him.”

        On December 11, 2009, the trial court denied Cantu’s motion without a hearing. The trial

court stated in its order that Cantu “ha[d] not established entitlement to have the requested evidence

submitted to forensic DNA testing.”

        On direct appeal to this Court, Cantu brings two issues. Under both issues – Cantu does not



        3
          This “other evidence” consisted of: (1) Texas toll tag records indicating that someone
drove Mosqueda’s Corvette on November 4, 2000, at 11:15 a.m., a point in time that may have
been after Cantu had already left Dallas heading for Arkansas and (2) Southwestern Bell
telephone records indicating that someone at Cantu’s apartment made a long-distance telephone
call on November 4, 2000, at 8:53 p.m., a point in time after Cantu had already left Dallas for
Arkansas.
                                                                                           CANTU -- 5

segregate his arguments under one issue or the other – he argues inter alia that he has “satisfied the

statutory prerequisites for entitlement to forensic DNA testing” and that, therefore, “the convicting

court erred in denying such relief.” He also argues that he has shown that “it is more likely than not

that testing showing another person’s DNA under the victims’ fingernails and another person’s hair

in the victims’ car would have resulted in at least one juror refusing to find [him] guilty of capital

murder.” In support of the latter claim, Cantu argues, as he did below, that Amy Boettcher was not

a credible witness and that certain evidence at trial supported a conclusion that he was framed for

the murders in question. See footnote three, supra, and accompanying text.

        In its response brief, the State argues inter alia that the trial court did not err in denying

Cantu’s motion for forensic DNA testing because: (1) Cantu failed to establish “that either victim’s

fingernail scrapings actually contain biological material suitable for testing” and (2) the hair found

on the floor mat of Mosqueda’s Corvette “possesses no evidentiary value to identify a person

associated with the murders.”

        Chapter 64 of the Texas Code of Criminal Procedure “requires multiple threshold criteria to

be met before a convicted person is entitled to DNA testing.” Swearingen v. State, 303 S.W.3d 728,

731 (Tex.Crim.App. 2010). One of those threshold criteria is that the person seeking the DNA

testing must first establish that the evidence sought to be tested actually contains biological material.

Tex. Code Crim. Proc. art 64.01(a). “[A] mere assertion or a general claim that existence of

biological material is probable will fail to satisfy the [movant’s] burden.” Swearingen v. State, 303

S.W.3d at 732. In his motion for forensic DNA testing and in his accompanying affidavit, Cantu

assumed without discussion that biological material might be found under the victims’ fingernails.

Such an assumption failed to meet Cantu’s burden of establishing that the victims’ fingernail
                                                                                          CANTU -- 6

scrapings actually contained biological material. Thus, the trial court did not err in refusing to order

DNA testing of the victims’ fingernail scrapings.

       Another of the threshold criteria that must be met before a convicted person is entitled to

DNA testing is that the person seeking the testing must first establish, by a preponderance of the

evidence, that he would not have been convicted if exculpatory results had been obtained through

DNA testing. Tex. Code Crim. Proc. art. 64.03(a). Whether the person seeking the testing has met

this threshold criterion is a question that we review de novo. Routier v. State, 273 S.W.3d 241, 257

(Tex.Crim.App. 2008). In his motion for forensic DNA testing, Cantu argued that testing of the hair

found on the floor mat of Mosqueda’s Corvette “could be critical to proving” that someone other

than he drove that automobile on the night of the murders or the following day. However, even if

DNA testing proved that the hair on the Corvette’s floor mat came from someone other than Cantu,

that fact would not tend to prove that someone other than he drove the Corvette on the night of the

murders or the following day, because such DNA testing would not prove how or when the hair

came to be on the floor mat. And, even if DNA testing of the hair could prove that someone other

than Cantu drove the Corvette on the night of the murders or the following day, that fact would not

tend to exculpate Cantu of the crime for which he was convicted; at most, it might suggest that he

had an accomplice. See Prible v. State, 245 S.W.3d 466, 470 (Tex.Crim.App. 2008) (presence of

another person’s DNA at crime scene not necessarily exculpatory). Finally, in light of the

overwhelming evidence of Cantu’s guilt, recounted above, it is not likely that proof that the hair on

the Corvette’s floor mat came from someone other than Cantu would have caused his jury to harbor
                                                                                         CANTU -- 7

a reasonable doubt as to his guilt.4 Thus, the trial court did not err in refusing to order DNA testing

of the hair.

        We overrule Cantu’s two issues and affirm the order of the trial court.



DELIVERED OCTOBER 13, 2010

DO NOT PUBLISH




        4
         In Swearingen v. State, 303 S.W.3d 728, 736 (Tex.Crim.App. 2010), we noted, “Texas
courts have consistently held that a movant [for forensic DNA testing] does not satisfy his burden
under Article 64.03 if the record contains other substantial evidence of guilt independent of that
for which the movant seeks DNA testing.”
