Ex Parte: Ronald Wayne Thompson ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-20-00067-CR
EX PARTE: § Appeal from the
RONALD WAYNE THOMPSON, § 210th District Court
Appellant. § of El Paso County, Texas
§ (TC# 20080D000241-210-01)
OPINION
In January 2008, a grand jury indicted Appellant, Ronald Wayne Thompson, for the capital
murder of Haley Chan during the course of a robbery. In 2010, he pleaded guilty to the lesser-
included offense of murder, and the trial court assessed a negotiated sentence of 40 years’
imprisonment. This appeal addresses the trial court’s denial of Appellant’s June 2019 motion
requesting post-conviction DNA testing. He argues that the trial court improperly denied the
motion, and next that Texas Code of Criminal Procedure Chapter 64 is unconstitutional as applied
to his case. We affirm.
I. BACKGROUND
At a 2010 plea hearing, Appellant told the trial court that he freely and voluntarily pleaded
guilty to murdering Chan because he was guilty, and for no other reason. Appellant believed that
both of his attorneys represented him effectively, and he was happy with their performance.
Appellant understood the terms of his negotiated sentence and pleaded true to the two punishment
enhancements alleged in the indictment. Both the trial court and counsel declared that, based upon
observations and interactions, they deemed Appellant competent to enter his plea.
The State announced that, if the case would have proceeded to trial, it would have proven
beyond a reasonable doubt that Appellant intentionally killed Chan in 2007 by striking her in the
head with a board. Appellant did not object to this summary, and the trial court found the board
to be a deadly weapon.
Appellant did not file a direct appeal. In a state court application for writ of habeas corpus,
however, Appellant alleged that he received ineffective assistance of trial counsel because his
attorneys (1) advised him that he would be given the death penalty if he did not plead guilty, and
(2) counsel did not request a competency hearing before his plea hearing. The Court of Criminal
Appeals denied Appellant’s first application for writ of habeas corpus in 2017, and dismissed a
subsequent application for writ of habeas corpus.
A. Chapter 64 Motion for Post-Conviction DNA Testing
On June 10, 2019, Appellant filed in the trial court a motion for post-conviction DNA
testing of the following evidence: (1) a wood board; (2) a 1995 Pontiac Bonneville described as
Chan’s car; (3) a cellular phone; (4) a desktop computer; and (5) a printer. Appellant requested
DNA testing of evidence that contained biological material that had not previously been tested,
2
and evidence that was tested previously but could be subjected to newer techniques. He did not
delineate which items fell into which category.
In an attached affidavit, Appellant explained that the State’s theory of the case was that he
murdered Chan using a wood board, and then stole Chan’s Pontiac, desktop computer, printer, X
Box video game console, and cellular phone. He maintained that he suffered from mental illness
and intellectual disability while in custody awaiting trial, and that his attorneys told him if he did
not plead guilty he would receive the death penalty. Appellant declared that testing these items,
“if it returns any usable DNA, will show that none of [his] DNA is on the evidence,” and prove
his innocence.
B. The State’s Response
In compliance with Code of Criminal Procedure Article 64.02, the State responded that it
conducted a search to determine if it possessed the items Appellant requested to be tested.1 The
Deputy Chief Investigator for the District Attorney, Jeff Dove, averred that the wood board, which
remained in police custody, had already been tested for DNA and returned a match with only blood
from Chan. Law enforcement released the Pontiac to the lienholder in 2011; however, the police
department retained the brake and gas pedals, a shirt found inside the car, and swabs of portions
of the vehicle. The State did not know if the swabs and brake and gas pedals contained testable
biological material. The State knew that the shirt recovered from the Pontiac belonged to Dante
Francois Taylor, but did not know if the shirt contained biological material suitable for DNA
testing. Law enforcement also maintained custody of two cellular phones, neither of which had
any readily observable biological material suitable for DNA testing. Law enforcement did not
1
Article 64.02 instructs the trial court to provide the State with a copy of the motion for DNA testing, and requires
the State to either (a) deliver the evidence to the court, along with a description of the condition of the evidence, or
(b) explain in writing why the State cannot deliver the evidence to the court. TEX.CODE CRIM.PROC.ANN. art. 64.02(a).
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have a desktop personal computer or printer in its possession. The State attached a report
summarizing the results of the DNA testing of the wood board.
In a separate pleading, the State further responded that Appellant did not demonstrate that
he was entitled to DNA testing under article 64.03. The State argued that the only testable items
outside of the wood board in police custody were the cellular phones, and Appellant presented no
evidence that they contained biological material suitable for testing. The State also argued that
Appellant did not establish, by a preponderance of the evidence, that he would not have been
convicted if DNA testing provided exculpatory results, because two pieces of evidence strongly
established his guilt. First, witness Robert Castillo, the last person to see Chan alive in her
apartment, swore that Appellant announced a plan to steal Chan’s computer to make money. In
addition, the State attached a report summarizing DNA testing of pieces of duct tape found in
Chan’s apartment and tape that bound Chan’s body, indicating that Appellant could not be
excluded as a contributor to the DNA found on the evidence. Finally, the State maintained that
Appellant did not establish that additional DNA testing of the wood board would yield more
accurate and probative results than the testing previously performed.
1. Witness statements
The State attached two witness statements provided to law enforcement. Dante Francois
Taylor stated that he met Chan in a bar in 2006 and the two became friends. Taylor left a work
shirt and lunch box in Chan’s car when he was arrested. He lost communication with Chan while
he was incarcerated for three months, and never retrieved the items or heard from Chan after he
was released.
The second witness, Robert Castillo, identified an African-American male from a police
photo lineup, who approached him at a bar parking lot selling used stereo equipment. Castillo
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drove the man to an apartment, and the man used Castillo’s cellular phone to call “Haley,” the
woman who had taken him in. Castillo answered when Haley returned the call on his phone, and
a Caucasian woman who introduced herself as Haley subsequently arrived in a Pontiac sedan.
After Castillo looked at the stereo equipment and exited the apartment, the man told Castillo that
he would take half of the price in cash up-front for the goods. The man also complained to Castillo
about staying in Haley’s apartment and the conditions she placed on him. The man divulged that
he planned to “jack” Haley’s computer to make some money.
2. DNA testing of duct tape
The State also provided a summary of the results of DNA testing of several pieces of duct
tape.2 The DNA profile from several loci of samples of duct tape was consistent with a mixture.
Appellant could not be excluded as a contributor to the stain at certain loci, and the probability of
selecting an unrelated person at random who could be a contributor to the stain was approximately
1 in 5,780 for Blacks. Chan could also not be excluded as a contributor to the stain at various loci,
and the probability of selecting an unrelated person at random who could be a contributor to the
stain was approximately 1 in 131.4 trillion for Caucasians.3
The partial DNA profile from the stain on a sample of duct tape recovered from Chan’s
ankle was consistent with a mixture. Appellant could not be excluded as a contributor to the stain
at several loci, with the probability of selecting an unrelated person at random who could be a
contributor to the stain at approximately 1 in 1,044 for Blacks. The DNA profile from blood on a
third sample of duct tape, also recovered from Chan’s ankle, was consistent with a mixture of at
least three individuals. Appellant could not be excluded as a contributor to the stain at several loci,
2
Chan’s body was found with duct tape wrapped around her eyes and nose, as well as her ankles.
3
The Chief Medical Examiner’s post-mortem examination indicated that Chan was Caucasian.
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with the probability of selecting an unrelated person at random who could be a contributor
approximately 1 in 243,400 Caucasians.
C. The Trial Court’s Order Denying Appellant’s Motion
On February 10, 2020, the trial court entered an order denying Appellant’s motion for post-
conviction DNA testing. In reaching its decision, the court found the following relevant facts:
1. This Court finds that the only available DNA untested evidence in
applicant’s request for testing is two cell phones.
2. This Court finds that the applicant has failed to demonstrate that the cell
phones sought to be tested have a reasonable likelihood of containing
biological material.
3. This Court finds, based on the record, that the applicant has 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
of the cell phones.
4. This Court finds that Thompson has failed in his burden to show,
concerning the wood plank that was previously subjected to DNA testing,
that any newer testing techniques are available that would provide a
reasonable likelihood of results that would be more accurate and probative
than what has already occurred.
5. This Court finds that the applicant has failed his burden of satisfying the
requirements of TEX. CRIM. PROC. CODE art. 64.03(a)(2).
Conclusions of Law
1. Based on this Court’s findings, the applicant has failed to satisfy his burden
of showing his entitlement to post-conviction DNA testing under Chapter 64
of the Code of Criminal Procedure.
D. Appellant’s Late-Filed Reply
On February 18, 2020, eight days after the trial court had denied the motion, Appellant
delivered a reply to the State’s response to his motion for DNA testing.4 Appellant argued that the
4
The clerk filed Appellant’s reply on February 24, 2020.
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State’s response provided new evidence about his case when it stated that law enforcement
swabbed the Pontiac and removed the brake and gas pedals and a shirt from the vehicle. He
requested that the following evidence be tested: (1) all swabs law enforcement obtained from the
house and Pontiac; (2) the shirt that law enforcement removed from the car; (3) duct tape that
bound Chan when she was murdered, which contained Appellant’s DNA and two additional
contributors; (4) the wood board; (5) two cellular phones; (6) a 1995 Pontiac; (7) a desktop
computer; and (8) a printer. Appellant indicated that the State’s theory was that the offender bound
Chan with duct tape, murdered her, and then robbed her of her 1995 Pontiac, two cellular phones,
and desktop computer and printer. Appellant contended that the State could not prove he robbed
or murdered Chan because his DNA would not be found in the Pontiac or on the two cellular
phones that the State claims he stole from Chan’s home.
Appellant also indicated in the reply that he agreed with Castillo’s statement. Appellant
took Castillo to Chan’s residence, where Appellant was staying, and Chan was alive when Castillo
left. Although Castillo heard Appellant announce a plan to steal Chan’s computer, Castillo did not
allege that Appellant stated he would murder or bind Chan with duct tape or rob Chan of her
vehicle or cellular phone. Appellant acknowledged that his DNA profile would match the profile
derived from samples taken from the crime scene, because he touched duct tape and other
household items while staying with Chan. He claimed that the cellular phones law enforcement
seized during his arrest were never in Chan’s possession and would not contain her DNA. The
trial court took no action on this pleading.
II. NO ERROR IN DENYING CHAPTER 64 MOTION
Appellant first argues that the trial court improperly denied his motion for post-conviction
DNA testing. Specifically, he contends that the State provided new evidence in its response, which
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requires testing of (1) all swabs law enforcement obtained from the house and Pontiac; (2) the
shirt law enforcement removed from the car; (3) duct tape that bound Chan when she was
murdered; (4) the wood board; (5) two cellular phones; and (6) the gas and brake pedals from the
Pontiac. Appellant maintains that he pleaded guilty because trial counsel told him he would
otherwise receive the death penalty. He contends that his DNA was found on the duct tape because
he stayed in Chan’s home before her murder. He argues that additional testing of the wood board
would reveal the true offender, because the perpetrator’s DNA would be on the murder weapon.
The State responds that Appellant has not shown he is entitled to post-conviction DNA
testing because he provided no evidence that there was a reasonable likelihood that any of the
items contained biological material. He also did not demonstrate by a preponderance of the
evidence that he would not have been convicted if DNA testing returned exculpatory results.
Finally, the State maintains that Appellant did not establish that newer testing techniques would
provide more accurate and more probative results than those already obtained from the wood
board. We agree, and conclude that the issue does not warrant relief.
A. Chapter 64 and the Standard of Review
“There is no free-standing due-process right to DNA testing, and the task of fashioning
rules to ‘harness DNA’s power to prove innocence without unnecessarily overthrowing the
established system of criminal justice’ belongs ‘primarily to the legislature.’” Ramirez v. State,
621 S.W.3d 711, 717 (Tex.Crim.App. 2021), quoting Ex parte Gutierrez, 337 S.W.3d 883, 889
(Tex.Crim.App. 2011). The Texas Legislature created a process for post-conviction DNA testing
in the Code of Criminal Procedure Chapter 64. See TEX.CODE CRIM.PROC.ANN. arts. 64.01-64.03.
Article 64.01 delineates the requirements of a cognizable motion for post-conviction DNA
testing. See id. art. 64.01. A “convicted person may submit to the convicting court a motion for
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forensic DNA testing of evidence that has a reasonable likelihood of containing biological
material.” Id. art. 64.01(a-1). The motion may only request testing of evidence that the State was
in possession of at the time of trial, and was either (1) not previously tested for DNA or (2)
“although previously subjected to DNA testing . . . can be subjected to testing with newer testing
techniques that provide a reasonable likelihood of results that are more accurate and probative than
the results of the previous test[.]” Id. art. 64.01(b)(1), (2)(A).
Article 64.03 sets out the findings a trial court must make in order to grant DNA testing,
including that:
(1) The evidence “still exists and is in a condition making DNA testing possible;”
(2) The evidence “has been subjected to a chain of custody sufficient to establish
that it has not been substituted, tampered with, replaced, or altered in any
material respect;”
(3) “[T]here is a reasonable likelihood that the evidence contains biological
material suitable for DNA testing; and
(4) “[I]dentity was or is an issue in the case[.]”
Id. art. 64.03(a)(1). Pursuant to article 64.03(a)(2)(A), the trial court must also find that the
defendant establishes by a preponderance of the evidence that he “would not have been convicted
if exculpatory results had been obtained through DNA testing[.]” Id. art. 64.03(a)(2)(A).
For the “identity” requirement, the convicting court is prohibited from finding against that
element solely on the basis that the convicted person pleaded guilty, confessed, or admitted to the
crime. Id. art. 64.03(b). Nonetheless, for the purposes of article 64.03(a)(2)(A), a court may
properly consider a defendant’s confession or guilty plea in determining whether a convicted
person establishes that he would not have been convicted if exculpatory results had been obtained
through DNA testing. See Ramirez, 621 S.W.3d at 722 (instructing that a defendant’s confession
is properly considered in determining whether he met his burden under article 64.03(a)(2)(A)).
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Post-trial factual developments, such as evidence presented in habeas applications about the
veracity of confessions, are not properly considered in making an article 64.03(a)(2)(A)
determination. See id. Instead, a court limits its review to “whether exculpatory results ‘would
alter the landscape if added to the mix of evidence that was available at the time of trial.’” Id. at
723, quoting Holberg v. State, 425 S.W.3d 282, 287 (Tex.Crim.App. 2014); see Reed v. State, 541
S.W.3d 759, 774 (Tex.Crim.App. 2017) (instructing that an accused must show by a greater than
50% likelihood that he would not have been convicted if the proposed testing’s exculpatory results
were available at the time of his trial).
A reviewing court gives almost total deference to the trial court’s resolution of historical
fact issues supported by the record and application-of-law-to-fact issues turning on witness
credibility and demeanor. See Ramirez, 621 S.W.3d at 718. Application-of-law-to-fact questions
are reviewed de novo. See id.; Reed, 541 S.W.3d at 768-69.
B. Items Addressed on Appeal
In his initial Chapter 64 motion, Appellant requested post-conviction DNA testing of: (1)
a wood board; (2) a 1995 Pontiac; (3) a cellular phone; (4) a personal computer; and (5) a printer.
The State’s Chapter 64.02 response concerning the availability and condition of items for DNA
testing, including exhibits and Dove’s affidavit, addressed these items. Appellant does not address
the trial court’s denial of his request to test the personal computer or printer in his opening brief.
As such, we will not address these two items on appeal. See TEX.R.APP.P. 33.1(a).
The State’s response mentioned additional evidence in its discussion--evidence that
Appellant had not requested to be tested. After the trial court entered its order denying DNA
testing, Appellant late-filed a reply requesting testing of additional items that the State had
mentioned in its general response, including: (1) swabs of Chan’s home and vehicle; (2) a shirt
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found inside the Pontiac; (3) the gas and brake pedals from the Pontiac; and (4) duct tape samples.
Because the State did not file an article 64.02 response or exhibits concerning the availability and
condition of these additional items for DNA testing, the trial court could not have ruled on the
eligibility of these items to be tested. See TEX.CODE CRIM.PROC.ANN. arts. 64.02, 64.03. As such,
we restrict our review on appeal to the trial court’s findings of fact and conclusions of law, which
did not contemplate Appellant’s late-filed reply and additional requests. See TEX.R.APP.P. 33.1(a).
Appellant is not precluded from filing a subsequent Chapter 64 post-conviction motion for DNA
testing; however the convicting court, and not this Court, enjoys the first opportunity to rule on
such a request. See TEX.CODE CRIM.PROC.ANN. art. 64.01(a-1) (providing that a motion
requesting post-conviction DNA testing must be filed in the convicting court); see also State v.
Swearingen, 478 S.W.3d 716, 720-21 (Tex.Crim.App. 2015) (in denying convicted person’s fifth
motion for post-conviction DNA testing, noting that Chapter 64 motions are subject to the “law of
the case” doctrine).
C. Trial Court’s Findings of Fact Are Supported by the Record
The trial court made express findings that Appellant did not meet various Chapter 64
requirements, to show he was entitled to testing. The record supports these findings.
1. Articles 64.01(a)(1) & 64.03(a)(1)(B), biological material suitable for DNA
testing
Cellular Phones: The trial court’s finding that Appellant did not demonstrate a reasonable
likelihood that the cellular phones contained biological material suitable for DNA testing is
supported by the record. Dove’s affidavit swore that he personally viewed two cellular phones
kept at the police department property office, and neither had any readily observable biological
material present. Because the record contains no other evidence concerning the matter, the trial
court’s findings deserve deference. Thus, the trial court could not make the required finding under
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articles 64.01(a)(1) and 64.03(a)(1)(B), that there was a reasonable likelihood that the items
contained material suitable for DNA testing.
1995 Pontiac: The trial court’s finding that the 1995 Pontiac was not available for testing
should be afforded deference, as Dove’s affidavit stated that law enforcement released the vehicle
to the lienholder in 2011. Appellant’s request to test the Pontiac did not satisfy the requirement of
article 64.03(a)(1)(A)(i) and (ii) that the evidence still exists or has not been altered in any material
respect.
2. Article 64.01(b)(2)(A), previously subjected to DNA testing
Wood Board: For evidence that was tested and did yield a result, Appellant must show
that new testing techniques will provide a reasonable likelihood of results that are more accurate
and more probative than the results of the previous test. See LaRue v. State, 518 S.W.3d 439, 448
(Tex.Crim.App. 2017); TEX.CODE CRIM.PROC.ANN. art. 64.01(b)(2)(A). Dove’s affidavit
indicated that the wood board was in police custody and had been tested, with results showing only
DNA from Chan. The State provided a summary of the DNA analysis of stains from the wood
board, indicating that Chan was the source of the DNA, to a reasonable degree of scientific
certainty. The probability of an unrelated person at random who could be the source of the DNA
profile was approximately 1 in 208.1 quintillion for Caucasians. Because Appellant did not
establish that a new testing technique would provide a reasonable likelihood of results more
accurate and more probative than the prior test, his Chapter 64 motion did not meet the statutory
requirements. See id. art. 64.01(b)(2)(A).
3. Article 64.03(a)(2)(A), 51% chance Appellant would not have been convicted
The record also supports the trial court’s finding that Appellant cannot show by a
preponderance of the evidence that he would not have been convicted if exculpatory results had
been obtained through DNA testing. See id. art. 64.03(a)(2)(A). “Exculpatory results” means only
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results that exclude the convicted person as the donor of the material. See Reed, 541 S.W.3d at
774. The Court of Criminal Appeals has explained that “[i]n a given case, the presence of a third
party’s DNA may not have any tendency to exonerate the defendant from the crime.” Hall v. State,
569 S.W.3d 646, 656 (Tex.Crim.App. 2019). Even when the presence of a third party’s DNA may
tend to be exonerating, the defendant’s burden is not satisfied “if the record contains other
substantial evidence of guilt independent of that for which [he] seeks DNA testing.” Id.The record before this Court contains substantial evidence of guilt independent of that for
which Appellant seeks DNA testing. Appellant announced to the trial court that he pleaded guilty
because he was guilty of murdering Chan. See Ramirez, 621 S.W.3d at 722 (instructing that a
defendant’s confession is properly considered in determining whether he met his burden under
article 64.03(a)(2)(A)). Appellant does not dispute Castillo’s statement to law enforcement
detailing how he asked Castillo to drive him to Chan’s apartment, where Appellant was staying.
During the interaction, Appellant told Castillo that he was unhappy living with Chan and
announced a plan to “jack” Chan’s computer to make some money.
The Chief Medical Examiner’s report indicated that Chan was found murdered in her
dining room. Silver duct tape was wrapped around her eyes, nose, and ankles, and she was bound
by an extension cord that was attached to her vacuum cleaner. The Medical Examiner concluded
that Chan’s cause of death was multiple blunt impact trauma to the head, and manner of death was
homicide. He retrieved a wood chip from one of the wounds to Chan’s scalp. Appellant does not
dispute that he was living in Chan’s apartment at the time she was murdered, or that his DNA was
on the duct tape that bound her when she was killed. Appellant also does not dispute that he
confessed to killing her with a wood board. DNA evidence that may show someone other than
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Appellant was also involved in the crime does not exonerate him. See Hall, 569 S.W.3d at 657-
58.
Appellant has also not explained the relevance of the requested items to his conviction.
Although an article 64.03(a)(2)(A) analysis requires a court to presume exculpatory results of the
putative testing, it does not require a court to presume an item’s relevance to the question of the
offender’s identity. See Reed, 541 S.W.3d at 774-75. In Reed v. State, the Court of Criminal
Appeals concluded that a defendant could not establish that condoms, beer cans, and a paper
napkin were connected to a murder simply because they were found near the crime scene. See id.
at 775. The court rejected the defendant’s request to test additional items found inside the
decedent’s truck simply because a perpetrator could have touched them, finding that the defendant
did not demonstrate relevance or that exculpatory results injected doubt sufficient to cause a jury
to acquit. Id.
As in Reed, Appellant has not established the relevance of the requested items to the
offender’s identity. The record does not indicate who owned or used the cellular phones or where
law enforcement found the items. Likewise, evidence excluding Appellant as the donor of
biological material from the Pontiac would not negate his plea and admission to the trial court that
he murdered Chan with a wood board. The Medical Examiner’s report indicated that Chan was
found lying on the floor of her dining room, not in her vehicle. Furthermore, because the wood
board was already tested and did not match Appellant, the item’s potential exculpatory nature was
previously known. See id. at 773 (concluding that the accused did not establish that he would have
been acquitted if exculpatory DNA results were obtained, in part, because the jury already knew
that many of the items did not match him).
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The items collectively do not corroborate a defensive theory proposed by Appellant at the
time of trial. See Routier v. State, 273 S.W.3d 241, 256-59 (Tex.Crim.App. 2008) (concluding
post-conviction DNA testing was warranted when items the defendant wanted tested corroborated
her defensive theory at trial). Even if Appellant was able to show some relevance towards the
items, exculpatory results that would only “muddy the waters” are insufficient to show that the
defendant would not have been convicted. Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App.
2002).
As such, the trial court properly denied Appellant’s motion for DNA testing because he did
not meet the pleading requirements of article 64.01, and he did not make the required showing
under article 64.03(a). We thus overrule Appellant’s first issue.
III. THE TRIAL COURT WAS NOT PRESENTED WITH
CONSTITUTIONAL CHALLENGE
Appellant next argues that Texas Code of Criminal Procedure Chapter 64 is
unconstitutional as applied to his case, because it violates his Eighth and Fourteenth Amendment
rights to fundamental fairness by denying him access to DNA testing. The State responds that
Appellant did not preserve the issue, because he did not raise it in the trial court. We agree.
Appellant did not raise this issue in his Chapter 64 motion. “‘As applied’ constitutional
claims are subject to the preservation requirement and therefore must be objected to at the trial
court in order to preserve error.” Reynolds v. State, 423 S.W.3d 377, 383 (Tex.Crim.App. 2014).
To the extent Appellant’s argument may be interpreted as raising a facial challenge to Chapter 64,
he may also not do so for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434
(Tex.Crim.App. 2009). We thus overrule the issue as not preserved.
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IV. CONCLUSION
Having overruled both of Appellant’s issues on appeal, we affirm the trial court’s judgment
denying relief.
JEFF ALLEY, Justice
June 30, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
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