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Click here for the full text of this decision FACTS:Jimmy Sol Booker appeals the trial court’s findings following DNA testing pursuant to Texas Code of Criminal Procedure chapter 64. Following his conviction, the appellant filed pro se motions seeking DNA testing of a vaginal swab and appointment of an expert in DNA analysis. The trial court appointed an attorney for appellant. Appellant’s attorney and the state’s attorney filed an agreed motion for DNA testing pursuant to chapter 64 of the code of criminal procedure. The trial court granted the motion. After the DNA testing, the trial court conducted a hearing pursuant to Article 64.04 of the code of criminal procedure. The evidence presented at the hearing showed the vaginal swab was tested by the Texas Department of Public Safety’s crime laboratory in Garland. The DNA typing of sperm cells recovered from the swab was examined at 14 loci. At six of these loci, appellant could not be excluded as the contributor of the sperm. Lorna Beasley, the DNA analyst who tested the swab, testified the remaining eight loci gave no results or inconclusive results. Beasley’s report concluded, “At these loci, the probability of selecting an unrelated person at random who could be the source of this DNA profile is approximately 1 in 2,793,000 for Caucasians, 1 in 370,500 for Blacks, and 1 in 937,200 for Hispanics.” After the hearing, the trial court entered written findings that the result of the DNA testing was not favorable to appellant and that it was not reasonably probable that appellant would not have been prosecuted or convicted based on the DNA testing results. HOLDING:Affirmed. Under Wolfe v. State, No. 74,522, 2003 WL 22682274 (Tex. Crim. App. Nov. 12, 2003), the court lacks jurisdiction over any issues that are not “an appeal of a finding under Article 64.03 or 64.04.” None of appellant’s first five points of error concern a finding under Article 64.03 or 64.04. After Whitaker v. State, No. 74,612, 2004 WL 63981, at 2-3 (Tex. Crim. App. Jan. 14, 2004), it is unclear that the court lacks jurisdiction to address them except for the issue presented in Wolfe, appointment of an expert to assist the appellant and his attorney in analyzing the DNA test results. Accordingly, under Wolfe, the court holds that it lacks jurisdiction to address appellant’s first five points of error, and the court dismisses them. Because Whitaker indicates the court may have jurisdiction to address issues other than appointment of an expert, regardless of whether those issues involve findings under Article 64.03 or 64.04, the court addresses the merits of those points of error in the interest of justice. The trial court did not order the testing to be conducted by a laboratory other than a Department of Public Safety laboratory, and the testing was performed by a Department of Public Safety laboratory. Accordingly, the requirements of Article 64.03(d)(1)-(3) do not apply. Under Wolfe, the court lacks jurisdiction to determine whether appellant’s counsel was ineffective for not seeking a hearing and ruling on appellant’s pro se motions for appointment of an expert to assist appellant and his attorney in the analysis of the test results. A convicted person has no right to be present at a post-conviction hearing such as a hearing conducted pursuant to chapter 64. Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000). If a convicted person has no right to be present at the hearing, he can have no right to testify at that hearing. The fact that only six of the 14 loci yielded a result of not excluding the appellant does not demonstrate a reasonable probability of innocence. OPINION:James, J.; Whittington, James and O’Neill, JJ.

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