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Criminal Law Click here for the full text of this decision “[T]he Article 64.03(a)(2)(B) question of whether the request for DNA testing is made to unreasonably delay the execution of sentencing or the administration of justice is an application-of-law-to-fact question and is therefore given de novo review.” FACTS:The appellant was convicted of capital murder and sentenced to death pursuant to Texas Penal Code �19.03(a)(7)(A) and Texas Code of Criminal Procedure article 37.071 �2(g). This court affirmed the appellant’s conviction on direct appeal. The appellant filed a motion with the trial court for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The trial court denied the motion but failed to enter determinations under Article 64.03 of the Texas Code of Criminal Procedure. The appellant appealed the denial of the motion to this Court. The motion was remanded to the trial court with directions to enter an order containing the relevant article 64.03 determinations. Then, the trial court entered the order finding that the appellant did not satisfy the requirements of article 64.03(a)(2)(A) and 64.03(a)(2)(B). The appellant appeals the denial of the motion. HOLDING:Affirmed. The appellant alleges that the trial court erred in determining that the appellant had not met his burden under article 64.03(a)(2)(A) and 64.03(a)(2)(B). Article 64.03(a)(2)(B) requires the appellant to demonstrate by a preponderance of the evidence that the DNA testing request is not made to unreasonably delay the execution of his sentence or the administration of justice. The appellant does not have a set date of execution, and he has a federal habeas appeal pending. The testing could be conducted before the appellant is assigned an execution date or appears on his federal habeas claim. The court finds that the trial court’s determination was an abuse of discretion that is not supported by the record. The court overrules the trial court’s 64.03(a)(2)(B) determination. Article 64.03(a)(2)(A) requires the convicted individual to establish by a preponderance of the evidence that a reasonable probability exists that he or she would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. This court has interpreted that language as meaning a reasonable probability exists that exculpatory DNA tests will prove a convicted individual’s innocence. Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002). The court reaffirmed the use of this standard in other cases. Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002); Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002). After reviewing the evidence, the court finds that the record supports the trial court’s conclusion that the appellant failed to meet this standard. The appellant contends that the trial court’s failure to provide specific findings undermines the structure of the statute. The trial judge denied the appellant’s chapter 64 motion and found that the appellant failed to meet the standards required by articles 64.03(a)(2)(A) and 64.03(a)(2)(B). Although the trial court should provide determinations under the statute, this court has de novoreview of application-of-law-to-fact issues that do not depend on the credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002). Article 64.03(a)(2)(A) requires a petitioner to demonstrate, by a preponderance of the evidence, that a reasonable probability exists that he or she would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. This court has interpreted article 64.03(a)(2)(A) to require a reasonable probability that exculpatory DNA tests would prove the petitioner’s innocence. In Rivera, this court further established that,”[T]he ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.” Similarly, the article 64.03(a)(2)(B) question of whether the request for DNA testing is made to unreasonably delay the execution of sentencing or the administration of justice is an application-of-law-to-fact question and is therefore given de novo review. The trial court’s findings, when considered with the record in this case, are sufficient for the purposes of this review. The trial court found that the appellant failed to meet the requirements of articles 64.03(a)(2)(A) and 64.03(a)(2)(B). This may not be adequate in every case, and this court would appreciate more detailed findings from the trial court to facilitate review. But, in appellant’s case, the record supports the trial court’s conclusion that the appellant did not prove by a preponderance of the evidence that a reasonable probability existed that he would not have been prosecuted or convicted if the DNA test results were exculpatory. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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