Opinion
No. 05-04-01440-CR
Opinion issued July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-01539-PM. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Paul Niel Smith appeals the denial of his motion for post-conviction DNA testing. In a single issue, appellant contends the trial judge erred in denying his motion because (i) a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory tests had been obtained through DNA testing, and (ii) the initial DNA test results were inaccurate and flawed. We overrule appellant's sole issue and affirm the order denying appellant's motion. Before the trial judge can order post-conviction DNA testing, appellant must meet the requirements of article 64.03 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2004-05). When, as here, there is a request for previously tested evidence to be retested, appellant must show that newer DNA testing techniques provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. See Tex. Code Crim. Proc. Ann. art. 64.01(b)(2) (Vernon Supp. 2004-05). Appellant must also, among other things, 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. Ann. art. 64.03(2)(A). A trial judge does not err in denying post-conviction DNA testing where, at most, exculpatory DNA tests would "merely muddy the waters." See Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002) (interpreting statute prior to its 2003 amendment). After reviewing the record, we cannot conclude appellant has met these requirements. The record shows that appellant and Gina Smith had a troubled marriage, characterized by appellant physically abusing Smith. The couple had repeated separations and reconciliations. Smith was living in an apartment arranged for her by a women's shelter when she was stabbed numerous times and hit on the head with a blunt object, killing her. Smith's daughter, who was nine-years-old at the time, told police that, during the night her mother died, she heard her mother repeatedly screaming, "no, no, no." She also told police she heard a man's voice that she recognized. She did not leave her room that night, because her mother had told her not to come out when she and appellant were fighting. The next morning, she found her mother lying in the hallway. After the police asked her if the man's voice she heard the night before was appellant's voice, she told the police she thought appellant killed her mother. However, she would not answer when she was asked directly if it was appellant's voice. The police later searched appellant's house where they found a washcloth and a blue robe, both with blood on them. In appellant's car, the police found traces of blood on the clutch, brake pedal, gas pedal, car door, and a pair of shoes. The police also found a bloody knife under a bush in the front of appellant's house. DNA testing on the knife established the blood matched Gina's to the extent that the blood of only 1 in 340,000 Caucasians would match. The blood from the door handle of appellant's car matched to the extent that the blood of only 1 in 4400 Caucasians would match. Although appellant asserts the trial judge should have granted his motion for DNA testing because newer testing techniques exist and Mitochondiral DNA (mtDNA) testing was not available at the time of his trial, he does not cite to evidence in the record to support these claims. At the time of appellant's trial, the blood from the knife and the car door handle was tested using RFLP and PCR methods. Appellant has not shown these methods are unreliable or that newer testing techniques are more advanced or accurate than these methods. In fact, at the time of appellant's motion for DNA testing, the Department of Public Safety Crime Laboratories continued to utilize "the PCR variety of DNA testing, which is commonly used by forensic laboratories for analysis of nuclear DNA." Thus, we cannot conclude appellant has shown newer DNA testing techniques provide a reasonable likelihood of results that are more accurate or probative than the results of the previous tests. Consequently, we cannot conclude the trial judge erred in denying appellant's request to retest the blood from the knife and the door handle. With respect to appellant's request for testing of items not previously tested, i.e., the washcloth, robe, and traces of blood from the clutch, brake pedal, gas pedal, shoes, drain stopper, drain pipe, door knobs and hardware, as well as the hair from the handle of the knife, we reach a similar result. In light of the evidence showing the past history of violence between appellant and Smith, his threats to kill her, her daughter recognizing the man's voice and telling the police she thought appellant killed her mother, and the previous DNA tests on the knife and door handle, any exculpatory results from DNA testing of items not previously tested would serve only to "muddy the waters." After reviewing the record, we conclude appellant failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results on the previously untested items had been obtained through DNA testing. Thus, we cannot conclude the trial judge erred in denying appellant's motion. We overrule appellant's sole issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.
Effective September 1, 2003, article 64.03 was amended to require the convicted person show, by a preponderance of the evidence, that he "would not have been convicted if exculpatory results had been obtained through DNA testing." See Act of April 25, 2003, 78th Leg., R.S., ch. 13, §§ 3, 8, 2003 Tex. Gen. Laws 16, 16-17. Because appellant's amended motion for DNA testing was filed October 2, 2003, we apply the current version of article 64.03.