GARY CURTIS FAISON, Appellant v. THE STATE OF TEXAS, Appellee
Opinion By Justice Lang-Miers
Appellant Gary Curtis Faison appeals the trial court's order denying his motion for post-conviction DNA testing. In a single issue he argues that the trial court abused its discretion when it denied his motion because “the evidence establishes that [he] would not have been convicted had the results of the DNA test been available at trial.” We affirm the trial court's order.
Appellant was convicted for the offense of aggravated sexual assault in 1998 and sentenced to 90 years in prison.1 In 2008, appellant filed a motion for post-conviction DNA testing and a supporting affidavit, in which he stated that, to the best of his knowledge, there was evidence consisting of biological material in the State's possession that was not subjected to DNA testing through no fault of his own. He argued that identity was an issue and that “[t]here is a substantial likelihood that DNA testing of the biological evidence would show that [appellant] is not guilty of this charge.”
In its response to appellant's motion, the State described the biological evidence in its possession, which includes hair samples collected from the complainant's apartment that were not previously subjected to DNA testing. Noting, among other things, that appellant's fingerprints were found on the duct tape used to rig open the complainant's patio door and on the deadbolt of the complainant's front door, the State argued that appellant was not entitled to post-conviction DNA testing because he “has failed to show that there is at least a 51% chance that the jury would not have convicted him had DNA test results excluding him as the source of any foreign hairs or other biological material collected from [the complainant's] apartment been presented at trial.”
The trial court denied appellant's motion, finding that appellant “failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.” In its order denying appellant's motion, the trial court also stated that it considered “the requirements of Chapter 64 of the Texas Code of Criminal Procedure.” Appellant timely filed his notice of appeal.
A convicted person who moves for post-conviction DNA testing under code of criminal procedure chapter 64 bears the burden of satisfying chapter 64's requirements. See Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App.2006). When, as here, the trial court denies a motion for post-conviction DNA testing without conducting a hearing, we review the ruling de novo. Smith v. State, 165 S.W.3d 361, 363 (Tex.Crim.App.2005).
On appeal, appellant complains about the trial court's decision to deny DNA testing of the hairs collected from the complainant's apartment. More specifically, appellant argues that “the head and pubic hairs recovered from the bed linens, bathtub, towels and washcloths used during the assault could have only come from the assailant or the victim.” But before we consider whether a convicted person has established by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing, we first consider the threshold issue of whether the items available for post-conviction DNA testing would qualify for testing. See Routier v. State, 273 S.W.3d 241, 245 (Tex.Crim.App.2008) (“Before addressing the question of whether it is more probable than not that the appellant would not have been convicted had the results of the testing she now seeks been exculpatory, we deem it appropriate first to determine which of the nine items would qualify for post-conviction DNA testing[.]”); McConnell v. State, No. 05-07-00675-CR, 2008 WL 3412201, at *1 (Tex.App.-Dallas Aug. 13, 2008, no pet.) (mem.op.) (not designated for publication) (“As a threshold issue, we consider whether the items available for post-conviction DNA testing would qualify for testing.”).
Under article 64.01(b)(1) of the code of criminal procedure, evidence that was not previously subjected to forensic DNA testing qualifies for DNA testing only if (1) DNA testing was not available at the time of trial; (2) DNA testing was available but not technologically capable of providing probative results; or (3) through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interests of justice. Tex.Code Crim. Proc. Ann. art. 64.01(b)(1) (Vernon Supp.2009). “Only those items that qualify for testing under these threshold criteria should be included in the collective calculus for determining whether the appellant would not have been convicted.” Routier, 273 S.W.3d at 245.
In this appeal, although appellant notes that the hairs were not previously tested, appellant does not identify which of article 64.01(b)(1)'s threshold criteria he contends qualifies the hairs at issue for DNA testing. We assume that appellant contends that the hairs qualify for testing under the third criterion, identified in article 64.01(b)(1)(B), because his affidavit in support of his motion states generally that “[t]he testing not being done was through no fault of my own.” The court of criminal appeals has explained, however, that it is not enough for an appellant to merely assert that the evidence at issue was not tested through no fault of his own; instead, he must make “a particularized showing of the absence of fault” in order to invoke article 64.01(b)(1)(B). Id. at 247.
In this case, appellant's motion does not explain why the evidence at issue was not previously tested, and appellant's supporting affidavit simply states that the evidence was not previously tested through no fault of his own. As a result, we conclude that appellant has not made the necessary “particularized showing” of the absence of fault as required by article 64.01(b)(1)(B). See id. at 245, 251-56. Likewise, appellant has not argued or demonstrated that DNA testing was not available at the time of his trial, or that DNA testing was available but not technologically capable of providing probative results. As a result, appellant has not met his burden to demonstrate that the hairs qualify for post-conviction DNA testing. See Tex.Code Crim. Proc. Ann. art. 64.01(b)(1). Consequently, we conclude that the trial court did not err in denying appellant's motion for post-conviction DNA testing. See, e.g., Johnson v. State, No. 14-08-00441-CR, 2009 WL 1493040, at *2 (Tex.App.-Houston [14th Dist.] May 28, 2009, pet. ref'd) (mem.op.) (not designated for publication) (affirming denial of motion for post-conviction DNA testing because movant did not meet burden of demonstrating evidence qualified for testing under article 64.01(b)).
We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.
FN1. Appellant's conviction was affirmed on appeal. Faison v. State, No. 05-99-00047-CR, 1999 WL 1073372 (Tex.App.-Dallas Nov. 30, 1999, no pet.) (not designated for publication).. FN1. Appellant's conviction was affirmed on appeal. Faison v. State, No. 05-99-00047-CR, 1999 WL 1073372 (Tex.App.-Dallas Nov. 30, 1999, no pet.) (not designated for publication).
ELIZABETH LANG-MIERS JUSTICE