Jarvis McDavid v. State ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00334-CR
JARVIS MCDAVID,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. D35700-CR
MEMORANDUM OPINION
Jarvis Dunk McDavid appeals from the trial court’s order denying his motion for
DNA testing under Chapter 64 of the Code of Criminal Procedure regarding post-
conviction DNA testing. We affirm.
In two issues on appeal, McDavid argues that the trial court erred in denying his
motion for DNA testing. McDavid was convicted of aggravated assault with a deadly
weapon, and he sought DNA testing on the knife used during the assault.
After a person has been convicted, he can file a motion for forensic DNA testing of
certain evidence containing biological material. TEX. CODE CRIM. PROC. ANN. Art. 64.01
(West Supp. 2016). In reviewing the trial judge's Chapter 64 rulings, we give "almost total
deference" to the trial judge's findings of historical fact and application-of-law-to-fact
issues that turn on witness credibility and demeanor, but we consider de novo all other
application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim.
App. 2011); Glover v. State, 445 S.W.3d 858, 861 (Tex.App. – Houston[1st Dist.] 2014, pet.
ref’d).
Article 64.03 of the Texas Code of Criminal Procedure provides that:
(a) A convicting court may order forensic DNA testing under this
chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) 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; and
(B) there is a reasonable likelihood that the evidence contains
biological material suitable for DNA testing; and
(C) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the
evidence that:
(A) the person would not have been convicted if exculpatory results
had been obtained through DNA testing; and
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(B) the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration of justice.
TEX. CODE CRIM. PROC. ANN. Art. 64.03 (a) (West Supp. 2016).
The record before us does not show that the knife or any other evidence still exists
and is in a condition making DNA testing possible. It appears that McDavid wants
fingerprint analysis on the knife. However, the record does not support a finding that
the knife has not been tampered with or altered so that DNA testing would be suitable.
We find that the trial court did not err in denying the motion for DNA testing. We
overrule the two issues on appeal.
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 31, 2017
Do not publish
[CR25]
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