AFFIRM; Opinion Filed March 26, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01235-CR
                                       No. 05-13-01237-CR

                                 JOHN CLOUD, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                    Dallas County, Texas
                      Trial Court Cause Nos. F93-61603-N, F93-61604-N

                             MEMORANDUM OPINION
                           Before Justices O’Neill, Myers, and Brown
                                   Opinion by Justice Myers
       Appellant has filed his third appeal challenging an order from the trial court denying a

request for post-conviction DNA testing. This Court affirmed the trial court’s orders in the two

previous appeals. See Cloud v. State, Nos. 05–07–01414–CR & 05–07–01415–CR, 2008 WL

3020817 (Tex. App.––Dallas Aug. 6, 2008, pet. ref’d) (not designated for publication) (Cloud

II); Cloud v. State, Nos. 05–03–01146–CR & 05–03–01162–CR, 2004 WL 1615832 (Tex. App.

––Dallas July 20, 2004, pet. ref’d) (mem. op., not designated for publication) (Cloud I). In this

appeal, appellant argues the trial court erred by denying his motion for post-conviction DNA

testing. We affirm the trial court’s order in both causes.

                                           DISCUSSION

       On May 3, 1996, appellant was convicted of two counts of aggravated sexual assault of a
child younger than fourteen years of age. The evidence at trial showed that two girls, N and B,

who were acquainted with appellant and his daughter, claimed appellant sexually assaulted them.

They alleged that appellant inserted his finger into their vaginas one night when they were

spending the night at appellant’s home. DNA evidence collected in the case consisted of seminal

fluid and spermatozoa on N’s underwear (the semen was tested prior to trial and found not to

belong to appellant) and a small, light brown pubic or body hair from B’s underwear (which, as

we stated in our previous opinion, “was apparently not tested”).                                         See Cloud II, 2008 WL

3020817, at *1. Just before the start of trial, the trial court granted the State’s third motion in

limine and excluded the DNA evidence found on N’s underwear as irrelevant to the charged

offenses. Id. at n.2. We affirmed the convictions. Cloud v. State, Nos. 05–96–00732–CR & 05–

96–00733–CR, 1998 WL 227941 (Tex. App.––Dallas May 8, 1998, pet. ref’d) (not designated

for publication). 1

           In his issue, appellant argues the trial court erred by denying his motion for the post-

conviction DNA testing of N’s underwear, and the hair recovered from B’s underwear, because

identity was an issue in these cases and there was a fifty percent chance he would not have been

convicted had exculpatory results been obtained through DNA testing.

           We review the trial court’s ruling on a motion for post-conviction DNA testing under a

bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under

this standard, we afford “almost total deference” to the trial court’s determination of historical-

fact and application-of-law-to-fact issues that turn on an evaluation of witness credibility and

demeanor, but review de novo all other application-of-law-to-fact issues. Ex parte Gutierrez,

337 S.W.3d 883, 890 (Tex. Crim. App. 2011) (citing Routier v. State, 273 S.W.3d 241, 246 (Tex.

Crim. App. 2008)).
     1
       The underlying facts of these cases are set forth in our opinion affirming the underlying convictions, and need not be repeated here. See
Cloud, 1998 WL 227941, at *1–3.


                                                                     –2–
       The convicting court may order post-conviction DNA testing only if it finds, among other

things, that “identity was or is an issue in the case.” See TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(B); Leal v. State, 303 S.W.3d 292, 296 (Tex. Crim. App. 2009). In addition, the trial

court could order the requested post-conviction DNA only if “the convicted person establishes

by a preponderance of the evidence that . . . the person would not have been convicted if

exculpatory results had been obtained through DNA testing.” See TEX. CODE CRIM. PROC. ANN.

art. 64.03(a)(2)(A); Gutierrez, 337 S.W.3d at 899. In other words, “[u]nder Article 64.03, a

convicted person is not entitled to DNA testing unless he first shows that there is ‘greater than a

50% chance that he would not have been convicted if DNA testing provided exculpatory

results.’” Gutierrez, 337 S.W.3d at 899 (quoting Prible v. State, 245 S.W.3d 466, 467–68 (Tex.

Crim. App. 2008)).

       Regardless of a defendant’s plea and the strength of identification evidence at trial, a

defendant can make identity an issue by showing DNA tests would prove his innocence.

Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009); Blacklock v. State, 235 S.W.3d

231, 233 (Tex. Crim. App. 2007). However, chapter 64’s identity requirement “relates to the

issue of identity as it pertains to the DNA evidence.” Prible, 245 S.W.3d at 470. If DNA testing

would not determine the identity of the person who committed the offense or would not

exculpate the person convicted, then the statutory requirements are not met. Id.; Sheckells v.

State, 05–09–00747–CR, 2011 WL 1367087, at *3 (Tex. App.––Dallas April 12, 2011, pet.

ref’d) (not designated for publication).

       The record in these cases shows that both B and N knew appellant and had been spending

the night at his home when the offenses occurred. Appellant was convicted of penetrating the

sexual organ of both complainants with his finger. We have previously concluded that even if

the hair from B’s underwear was found not to belong to appellant, this finding would not prove

                                               –3–
appellant’s innocence. See Cloud II, 2008 WL 3020817, at *1. The same is true regarding any

DNA potentially found on N’s underwear. There is no indication that the perpetrator touched or

handled N’s underwear. Indeed, trial testimony showed that both girls removed their underwear

themselves, at appellant’s direction, prior to the assault.     Cloud, 1998 WL 227941, at *1.

Additionally, DNA testing conducted prior to trial showed that the semen on N’s underwear did

not belong to appellant; further testing would have only confirmed these results.

         We also note that, in his brief, appellant alleges that the record contains numerous

fabrications or inconsistencies, especially in the testimony of the two complainants. Attacks on

credibility are not valid reasons for DNA testing under chapter 64. Bates v. State, 177 S.W.3d

451, 454 (Tex. App.––Houston [1st Dist.] 2005, pet. ref’d); see also In re Garcia, 363 S.W.3d

819, 822 (Tex. App.—Austin 2012, no pet.) (“[C]hapter 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.’”) (quoting Reger v.

State, 222 S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. ref’d)); Cloud II, 2008 WL

3020817, at *1 (“Under article 64.05, appellant’s right of appeal is limited to those matters

contained in the chapter authorizing post-conviction DNA testing.”).

         Because the record contains no evidence showing that appellant would not have been

convicted if exculpatory results had been obtained through DNA testing and that identity was an

issue in these cases, appellant did not meet his burden under chapter 64. Thus, the trial court did

not err by denying appellant’s motion for post-conviction DNA testing. We overrule appellant’s

issue.




                                                –4–
           We affirm the trial court’s order denying appellant’s motion for post-conviction DNA

testing.



                                                     / Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
131235F.U05




                                               –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

JOHN CLOUD, Appellant                             On Appeal from the 195th Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01235-CR        V.                      Trial Court Cause No. F93-61603-N.
                                                  Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                      Justices O'Neill and Brown participating.

       Based on the Court’s opinion of this date, the order of the trial court denying John
Cloud’s motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of
Criminal Procedure is AFFIRMED.

Judgment entered this 26th day of March, 2014.




                                                  / Lana Myers/
                                                  LANA MYERS
                                                  JUSTICE




                                            –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

JOHN CLOUD, Appellant                             On Appeal from the 195th Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01237-CR        V.                      Trial Court Cause No. F93-61604-N.
                                                  Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                      Justices O'Neill and Brown participating.

       Based on the Court’s opinion of this date, the order of the trial court denying John
Cloud’s motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of
Criminal Procedure is AFFIRMED.

Judgment entered this 26th day of March, 2014.




                                                  /Lana Myers/
                                                  LANA MYERS
                                                  JUSTICE




                                            –7–
