Christopher Leavele Patt v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00318-CR
CHRISTOPHER LEAVELE PATT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 09-02307-CRF-85
MEMORANDUM OPINION
Christopher Leavele Patt filed a “Motion for Forensic DNA Testing” which the
trial court denied. He appeals. Because the trial court did not abuse its discretion in
denying Patt’s motion, we affirm.
In his first issue, Patt contends that the trial court abused its discretion in failing
to find that Patt satisfied the “interests of justice” exception of former article
64.01(b)(1)(B) of the Code of Criminal Procedure. Act of 2001, 77th Leg., ch. 2 (S.B. 3), §
2, eff. April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of
2011 82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011 (current version at TEX. CODE
CRIM. PROC. ANN. art. 64.01(b) (West Supp. 2012)).1 We conduct a de novo review of the
trial court’s ruling. See Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008).
Article 64.01 provides that a convicted person may submit a motion to the
convicting court requesting DNA testing of evidence containing biological material that
was in the State's possession during trial. Act of 2001, 77th Leg., ch. 2 (S.B. 3), § 2, eff.
April 5, 2001; amended by Act of 2011, 82nd Leg., ch. 366 (S.B. 122), § 1 and Act of 2011
82nd Leg., ch. 278 (H.B. 1573), § 5 eff. Sept. 1, 2011, (formerly TEX. CODE CRIM. PROC.
ANN. art. 64.01(a) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (West
Supp. 2012)). The motion must be accompanied by an affidavit sworn to by the
convicted person, containing statements of fact in support of the motion. Id.; Dinkins v.
State, 84 S.W.3d 639, 641-642 (Tex. Crim. App. 2002). Because Patt filed his motion for
DNA testing before the effective date of the changes to Chapter 64 and because DNA
testing had not been done at his trial, Patt was required to show in his motion that no
DNA testing occurred "through no fault of the convicted person, for reasons that are of
such a nature that the interests of justice require DNA testing." Act of 2001, 77th Leg.,
ch. 2 (S.B. 3), § 2, eff. April 5, 2001 (formerly TEX. CODE CRIM. PROC. ANN. art.
64.01(b)(1)(B)).
1Patt filed his motion for DNA testing in May of 2011, thus the former version of the statute applies. All
citations to the statute are to the former version.
Patt v. State Page 2
Initially we note that Patt’s “affidavit” is deficient. Instead of “containing
statements of fact in support of the motion” as required, Patt simply states under a
heading of “Inmate’s Declaration:”
I, Christopher Leavele Patt, prisoner number 162271 being
presently incarcerated in the McConnell Unit, declare under penalty of
perjury that I have read the foregoing Motion for DNA Testing and the
factual assertions contained therein are according to my belief true and
correct.2
This is not an affidavit “containing statements of fact in support of the motion.”
Because there is no affidavit containing facts in support of the motion, the trial court did
not err in denying Patt’s Motion for Forensic DNA Testing. See Dinkins v. State, 84
S.W.3d 639, 642 (Tex. Crim. App. 2002).
Even if the declaration is a sufficient affidavit, the motion itself is insufficient to
show “no fault.” A person claiming “no fault” in failing to request DNA testing must
make a more particularized showing of the absence of fault under article 64.01(b)(1)(B)
because Chapter 64 requires defendants to avail themselves of whatever DNA
technology may be available at the time of trial. Ex parte Gutierrez, 337 S.W.3d 883, 895
(Tex. Crim. App. 2011). Patt’s motion fails to address the “no fault” provision of article
64.01(b)(1)(B). Thus, the trial court did not abuse its discretion in denying Patt’s motion
for DNA testing.
Patt’s first issue is overruled.
2This statement barely meets the requirements of an unsworn declaration by an inmate. TEX. CIV. PRAC.
& REM. CODE ANN. § 132.001(e) (West Supp. 2012).
Patt v. State Page 3
Because of our disposition in Patt’s first issue, we need not address Patt’s second
issue that the trial court abused its discretion in failing to find that Patt established by a
preponderance of the evidence that he would not have been convicted if exculpatory
results had been obtained through DNA testing.
The trial court’s order is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 13, 2012
Do not publish
[CRPM]
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