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Click here for the full text of this decision FACTS:Charles Elvin Whitaker was charged with capital murder in the death of a 76-year-old woman who owned a motel in Corrigan. Whitaker and two others allegedly conspired to rob the woman. They bound her hands with pantyhose and feet with electrical cord, ransacked her house, and stole money. Whitaker was the last one out of the house, and he was alleged to have said that he had hit the victim and “laid the bitch to rest.” Inside the victim’s ransacked home, police found a .22 pump rifle. The stock was broken, and two large splinters apparently from the stock were on the bed. An autopsy on the victim revealed that she died from a blow to the head, and the dimensions of the blow matched the rifle butt. Whitaker filed a motion to perform DNA testing on the rifle and stock. After initially granting the motion, the district court withdrew its order and ruled in favor of the government, agreeing that Whitaker had not met his burden of proof under Art. 64.03(a)(2), requiring a showing that there was a reasonable probability that he would not have been prosecuted or convicted based on the DNA testing results. HOLDING:Affirmed. The court confirms that a trial court can order DNA testing when: (1) the evidence “still exists and is in a condition making DNA 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”; and (3) that “identity was or is an issue in the case.” But, the court adds, the defendant must also prove 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.” The court also rebuffs Whitaker’s suggestion that the trial court was required to hold a hearing on the matter, as well as his contention that the court was required to grant him a presumption when, as in this case, the state did not file an affidavit in opposition to his motion. Finally, Whitaker did not meet his burden of proof. He did not say why a DNA test would reveal exculpatory evidence. There was blood on the rifle, but the state never contended that the blood was Whitaker’s, the victim’s or a mixture of both. “We agree with the State. Regardless of whose blood is on the rifle, other evidence at trial established Whitaker’s guilt, including his statement that he had killed the victim.” OPINION:Keasler, J., delivered the court’s opinion.

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