The appellant was convicted of capital murder and punishment was assessed at death, pursuant to Texas Penal Code Section 19.03(a) and Texas Code of Criminal Procedure Article 37.071, Section 2(g). According to the State's theory, the appellant beat, kidnaped and then shot Jerry Williams. The State alleged that the appellant kidnaped and murdered Williams in retaliation for providing the police with information that led to the arrest of the appellant on drug possession charges. We affirmed the appellant's conviction on direct appeal. Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999). (1) The appellant filed a motion with the trial court for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The convicting court denied the appellant's motion for DNA testing because the appellant failed to satisfy the requirements of Article 64.01 and Article 64.03. Subsequently, the appellant appealed the convicting court's decision, on two points of error. The appellant asserts that the convicting court incorrectly denied his motion for DNA testing because the standards applied by the court are logically impossible to satisfy no matter the fact situation, and even if the court did apply the correct legal standards, the appellant satisfied the requirements of Article 64.01 and Article 64.03. We find that the convicting court did apply the correct legal standards and that the appellant failed to satisfy the requirements of Article 64.01 and Article 64.03. Accordingly, we affirm the convicting court's ruling.
On November 4, 1992, police officers searched the appellant's home pursuant to a search warrant. Williams was the confidential informant whose information enabled the officers to obtain the search warrant. When over 24 grams of cocaine were found in the house, police officers arrested the appellant and another man present in the home at the time. The appellant was subsequently released on bond.
Sometime after the arrest, the appellant allegedly told a friend, Terry Lewis, that someone had "snitched" on him, that the "snitch" was never going to have the chance to "have someone else busted," and that the appellant "was going to get him."
The evidence at trial supporting the jury's verdict showed that on November 9, 1992, the appellant acted on his threats to harm the "snitch." In a grocery store parking lot, the appellant stood over Williams and beat him. The appellant asked, "What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?" In response, Williams begged for his life. At the time, Andrew Lewis, the husband of Terry Lewis, was pumping gasoline in his car at the same location. Williams escaped from the appellant long enough to run across the street to a field.
The appellant pursued Williams and caught him in the field. Andrew Lewis left the store and drove to the field where the two men were struggling. Williams was then forced into the car by both the appellant and Andrew Lewis. At some point, Andrew Lewis also participated in the beating of Williams. The appellant asked Andrew Lewis, "Where's the gun?" The appellant told Andrew Lewis to get the gun, and that he wanted to kill Williams. The men then drove Williams towards a nearby Mobil refinery. During the altercation, one witness entered the store to call the police, but continued to watch through the plate glass windows of the store. Two of the eyewitnesses left the store and drove back to their apartments, which were close by, after the appellant, Williams, and Andrew Lewis went to the field. When the two witnesses arrived home, they heard what sounded like gunshots from the direction of the Mobil plant.
A foreign grey hair, apparently belonging to a Caucasian person, was found on the victim's body. The record established that the appellant, Andrew Lewis, and the victim, Williams, were all African-American. This grey hair was never subjected to DNA testing. The State also kept pulled hair samples from the appellant, one pair of white socks, four rounds of live ammunition, photos and VHS video of the crime scene, and swabs from Andrew Lewis's car. The appellant filed a motion to have only the grey hair tested pursuant to Chapter 64 of the Texas Code of Criminal Procedure.
In his first point of error, the appellant contends that the convicting court failed to apply the correct legal standard when determining whether the appellant satisfied the requirements of Article 64.03. Under Article 64.03(a)(2)(A), DNA testing is required only if "the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." This legal standard was explained in Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002). This Court stated that Article 64.03(a)(2)(A) requires the convicted person to prove by a preponderance of the evidence that a reasonable probability exists that exculpatory results would prove the convicted person innocent, not merely muddy the waters. Id. at 438-39. Since the Kutzner decision, this Court and lower courts across the state of Texas have routinely applied this standard. Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002); Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002); Dinkins v. State, 84 S.W.3d 639 (Tex.Crim.App. 2002); Griggs v. State, 2003 Tex. App. LEXIS 1261 (Tex. App.-- Houston [1st Dist.] Feb. 6, 2003); Wilson v. State, 85 S.W.3d 836 (Tex. App.--Waco 2002); In re Fain, 83 S.W.3d 885 (Tex. App.--Austin 2002); Moore v. State, 82 S.W.3d 747 (Tex. App.--Amarillo 2002).
The appellant urges this Court to overrule its own decision in Kutzner and disregard the mandates of Article 64.03(a)(2)(A). The appellant contends that this Court should either grant each convicted person DNA testing before requiring the person to satisfy the requirements of Article 64.03(a)(2)(A), or assume that the convicted person has satisfied these requirements if and when exculpatory results are obtained. We cannot comply with the appellant's requests. We have authority to interpret, not amend, statutes. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
The only argument the appellant provides for such a drastic shift in the law is that the requirements of Article 64.03(a)(2)(A) are logically impossible to satisfy. We disagree. It seems quite possible that given the right set of facts, an appellant could prove by a preponderance of the evidence that a reasonable probability exists that exculpatory DNA testing results would prove the convicted person innocent. In fact, numerous trial courts have granted DNA testing for convicted persons who satisfy the requirements of Articles 64.01 and 64.03. See, e.g., Salazar v. State, 1994-CR-6143, 144th District Court (motion for DNA testing granted Oct. 9, 2002); Montemayor v. State, 1992-CR-5795, 227th District Court (motion for DNA testing granted Oct. 7, 2002); Bray v. State, 1988-CR-4459, 187th District Court (motion for DNA testing granted Jul. 29, 2002); Chatman v. State, F81-02101, Criminal District Court No. 4 (motion for DNA testing granted Jun. 14, 2002); Fountain v. State, F86-83596, 283d District Court (motion for DNA testing granted Mar. 26, 2002); Brewer v. State, F89-97479, 291st Judicial District Court (motion for DNA testing granted Aug. 17, 2001). The appellant's first point of error is overruled.
In his second point of error, the appellant makes bare allegations that he has satisfied the requirements of Articles 64.01 and 64.03. The statute requires more than bare allegations. Article 64.01(b)(1) requires that the convicted person seeking forensic DNA testing of evidence never before tested support his motion with evidence showing the reason DNA testing had not been conducted in the past. He must prove by a preponderance of the evidence that the evidence for which he is seeking DNA testing:
(1) 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 fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing[.]
Tex. Code Crim. Proc. art. 64.01(b). With his bare allegations the appellant has failed to prove by a preponderance of the evidence one of these reasons.
In addition, the appellant has failed to provide evidence that would satisfy all of the requirements of Article 64.03. Article 64.03(a)(2)(A) requires the convicted person to prove by a preponderance of the evidence that a reasonable probability exists that exculpatory results would prove the convicted person innocent, not merely muddy the waters. The State has already conceded that the hair found on the victim's body, for which the appellant requests DNA testing, does not belong to the victim, the appellant, or Andrew Lewis. At trial, the State admitted to the jury that the source of the foreign hair was unknown. But, the State argued that the hair was not probative of the appellant's guilt. The appellant argued that because it was not the appellant's hair, the appellant did not commit the murder. As in Bell v. State, the appellant "has not argued, or presented, affirmative evidence of how the presence of a third party's DNA would exonerate [him]. The presence of another person's DNA at the crime scene will not, without more, constitute affirmative evidence of appellant's innocence." 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
There are no exculpatory DNA results available to the appellant using the hair found on the victim's body. Both parties agree that it is reasonably certain that the hair did not belong to the appellant. The jury heard both the State and the appellant mention the foreign hair, but still chose to convict the appellant in light of other evidence. Even if DNA testing were to be performed and the results confirmed that the hair did not belong to the appellant, the victim, or Andrew Lewis, no new probative evidence would be available for either party to use. There is no possibility of obtaining exculpatory DNA results in this particular case from the hair found on the body. The appellant has failed to satisfy the requirements of Article 64.03. The appellant's second point of error is overruled.
Because the convicting court applied the correct interpretation of Chapter 64, an interpretation we decline to alter at this time, and the appellant failed to satisfy the requirements of Chapter 64, we hold that the convicting court did not erroneously deny the appellant's motion for DNA testing. Accordingly, the ruling of the convicting court is affirmed.
Delivered: March 26, 2003.
Do Not Publish.
1. The appellant's first conviction for this offense was reversed. Wilson v. State, 938 S.W.2d 57 (1996).