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Click here for the full text of this decision FACTS:This is a direct appeal from the trial court’s denial of appellant’s request for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. In 1989, appellant was convicted of capital murder and sentenced to death. On direct appeal, a majority of this court reversed the judgment based on an error in jury selection. The cause was remanded to the trial court, and in 1994, appellant was again tried and convicted of capital murder. Pursuant to the second jury’s answers to the special issues, appellant was again sentenced to death. On direct appeal from the second conviction and death sentence, this court affirmed the judgment of the trial court, and the U.S. Supreme Court denied appellant’s writ of certiorari. Both appellant’s state and federal writs of habeas corpus were denied. HOLDING:Affirmed. Appellant appeals the trial court’s ruling to this court and complains 1. that some of the state’s biological evidence, which it admits is still in its possession and has never been tested, would exonerate appellant, and 2. that had the more sophisticated and discriminating forms of DNA testing been available during appellant’s second trial, he would not have been convicted. Specifically, appellant avers that the 2003 amendments to Chapter 64 have “abrogated this Court’s more onerous construction of Article 64.03(a)(2)(A),” and if the testing were to show that “it was all the DNA of some other perpetrator, not Wilson, then it is at least more likely than not that Wilson would not have been convicted.” To be entitled to post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure, appellant bears the burden of establishing, by a preponderance of the evidence, that a reasonable probability exists that he would not have been convicted if exculpatory results had been obtained through DNA testing. Identity was never at issue. Appellant avers he is entitled to new testing or retesting of evidence because there may have been an additional man involved in the abduction, rape and murder of the victim. Even if there was another person who aided appellant and has successfully evaded prosecution after all these years, it would have no effect whatsoever on appellant’s conviction and sentence. DNA evidence that the victim was raped by another person, presumably a party to the kidnapping, would be wholly irrelevant. Appellant’s request to test the blood found in the victim’s bedroom and on some of the glass recovered from inside and outside her bedroom would not affect the result in this case. If newer, more discriminating DNA testing showed that another perpetrator was involved, that finding would not exonerate appellant because it would show nothing more than there was another party to the crime, at best. A newer more discriminating test on these hairs would not produce evidence that would exonerate appellant. In any event, if the tests showed that the hairs belonged to some other person, evidence still supported that appellant was at the scene of the abduction and he was driving the car that ran over the victim. OPINION:Holcomb, J.; Keller, PJ, Meyers, Keasler, Hervey and Cochran, JJ. join. Johnson, J., filed a concurring opinion. Price and Womack, JJ., dissent.

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