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Click here for the full text of this decision FACTS:In 1993, Tracy Hicks pleaded guilty to three counts of sexual assault and true to an enhancement allegation paragraph. As a result, he was sentenced to 40 years’ incarceration. In 2001, Hicks filed a motion for post-conviction DNA testing. The trial court granted Hicks’ motion and ordered the testing. After the testing was completed, the trial court found that the DNA results were unfavorable to Hicks. Hicks appeals from this ruling. HOLDING:Affirmed. Hicks argues that the trial court erred in failing to hold a Faretta v. California, 422 U.S. 806 (1975), hearing before allowing him to represent himself. Hicks indicates in his motions that he intended to represent himself regardless of whether the trial court allowed his appellate counsel to withdraw. Hicks claimed that his appellate counsel would not present certain issues to this court that Hicks felt was relevant to his conviction. Because of this Hicks felt that it would be in his best interest and in the best interest of the state that he represent himself. In addition, because of the conclusiveness of the DNA evidence and the restriction of this appeal to Texas Code of Criminal Procedure Chapter 64, the outcome of this proceeding would be no different had Hicks chosen not to represent himself. Therefore, any error in the trial court’s failure to hold a hearing is harmless. Hicks argues that the test results do not support the trial court’s finding under Art. 64.04 that the results were unfavorable. Because the language of Art. 64.03 is similar to that of Art. 64.04, appellate courts have applied the Art. 64.03 standard of review when analyzing Art. 64.04 appeals. Courts have found the requirement in Art. 64.03 that the appellant establish by a preponderance of the evidence that a “reasonable probability exists that [he] would not have been prosecuted or convicted” to mean that an appellant must show a reasonable probability that exculpatory DNA tests would prove his innocence. Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002). This is accomplished by showing that there is a probability of innocence sufficient to undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex. App. Houston [14th Dist.] 2003, pet. ref’d). The court reviews de novo whether the DNA results create a probability of innocence sufficient to undermine the court’s confidence in the outcome of Hicks’ 1993 trial. The test results show that the DNA of Hicks was “consistent” with the DNA taken from the semen present on the vaginal swab of the victim. The probability that Hicks was not the source of the DNA was 1 in 37.04 quintillion for Caucasians, 1 in 12.8 quintillion for African Americans, and 1 in 11.2 quintillion for Hispanics. Because the odds that Hicks was not the contributor of the DNA exceeds the world’s population, the court finds that these results do not create a probability of innocence sufficient to undermine the court’s confidence in Hicks’ conviction. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ.

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