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Click here for the full text of this decision FACTS:The jury convicted Shad Edward Luvano of capital murder. Punishment was assessed at life. On March 9, 2003, the victim’s body was discovered in his Abilene apartment. A police investigation determined that the victim was stabbed multiple times in the upper torso and neck while sitting in his recliner. The appellant was identified as a suspect in the crime. The police located appellant and his girlfriend, Misty Rodriguez, in Room 116 of the Century Lodge. Rodriguez consented to a search of their room. The police discovered several pieces of clothing during the search, including a pair of denim pants and a white shirt, both stained with blood. DNA testing indicated that the blood found on this clothing matched the victim’s DNA. After taking appellant into custody, the police interviewed Rosie Applin, who was staying in Room 112 of the Century Lodge. On the night of the murder, she had loaned a sword to appellant. When she asked why he wanted to borrow the sword, appellant told her that he was going to kill or “shank” somebody. When appellant returned to the Century Lodge the next morning, Applin noticed that his jeans and shirt were bloody. She also noticed that the sword, which appellant returned to Applin, was covered in what looked like blood. DNA testing indicated that the blood on the sword belonged to the victim. Detectives Jeff Bell and James David Atkins of the Abilene Police Department interviewed appellant after his arrest. Appellant called his mother during the interview and told her that he had killed the victim. After talking to his mother, appellant admitted to the detectives that he stabbed the victim because the victim insulted his mother. Appellant also consented to a television interview during which he again confessed to killing the victim. The state charged appellant with capital murder. Rodriguez, although charged with aggravated robbery, was not indicted in the capital murder case. Rodriguez was called to testify during the trial and asserted her Fifth Amendment right against self-incrimination. Appellant testified in his own defense. Appellant first testified that he went with Rodriguez to the victim’s apartment to sell him swords and that an argument between himself and the victim escalated into a fight. Appellant further testified that, during the fight, he stabbed the victim in the neck with his pocketknife and that the stabbing was in response to the victim choking him. Appellant also testified that Rodriguez was involved in the fight. Finally, appellant testified that he had lied to the police about killing the victim to protect Rodriguez. Dr. Marc Andrew Krouse, a medical examiner, testified that the victim was stabbed or cut at least 35 times and that several of the wounds would have caused death almost immediately, including two wounds to the neck. He testified that the neck wounds could have been caused by a pocketknife but that the chest wounds were caused by something else. Both the state and the defense called DNA experts to testify. Constance Patton, the state’s expert, testified that the blood on the murder weapon and on appellant’s clothing belonged to the victim. Appellant’s DNA expert, Dr. Rick Staub, concurred with the results of the state’s DNA testing. Staub also testified that there was both male and female DNA on the white shirt found in appellant’s motel room and that it was possible that a female could have worn the shirt on the night of the murder. Staub admitted, however, that there was no way to determine when the shirt was worn by the female. The State’s DNA expert testified that the presence of female DNA on the shirt had little evidentiary value because it would not indicate if the female was wearing the shirt on the night of the offense. Appellant filed a pretrial motion requesting forensic DNA testing on 29 samples collected by the police during the investigation and also a motion to require Rodriguez to produce a DNA sample. The trial court denied both motions. On Aug. 3, 2004, the day after the trial began, appellant filed a subpoena duces tecum to collect DNA from Rodriguez. Counsel for Rodriguez filed a motion to quash the subpoena. The trial court granted the motion to quash. The trial resumed, and appellant was convicted of capital murder. This appeal followed. HOLDING:Affirmed. Appellant asserts that the trial court erred in not allowing him to 1. test DNA samples collected by the state at the crime scene and 2. collect and test a DNA sample of a witness. Without knowing if the samples even came from inside the victim’s apartment, it is impossible to conclude that DNA analysis would have confirmed Rodriguez’s presence there. Even if were the court to assume each of the samples did in fact come from inside the apartment and in close proximity to the victim, the record does not support a finding of materiality because the evidence of appellant’s guilt was overwhelming. The victim’s blood was found on appellant’s shirt and pants. The victim’s blood was also found on the handle-wrapping of a sword that appellant had borrowed on the night of the murder. One witness testified that appellant told her he was going to kill the victim, and another witness testified that appellant said he was going to hurt the victim. Appellant confessed to stabbing the victim to the police, to his mother and to a television reporter. There is also evidence in the record that he confessed the crime to his ex-girlfriend. At most, DNA testing might have proven that someone else was in the victim’s apartment at some point in time. DNA testing would not prove when the third person was in the apartment nor what he or she was doing while there. OPINION:Strange, J.; Wright, CJ, McCall and Strange, JJ.

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