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Click here for the full text of this decision FACTS:The trial court convicted Ronald Jeffery Prible of capital murder and sentenced him to death. The CCA affirmed his conviction and sentence on appeal. Although the original DNA testing determined that the likelihood that the DNA in the victim’s mouth belonged to someone other than Prible was 1 in 26 billion, Prible filed a motion for DNA testing under Texas Code of Criminal Procedure Chapter 64. The trial court denied the motion and entered findings of fact, including that Prible failed to show that identity was an issue and he failed to show by a preponderance of the evidence that he would not have been convicted if exculpatory DNA results were obtained. Prible appealed the denial of his motion for post-conviction DNA testing. Prible argued that Chapter 64 violates the due-process rights of appellants who seek to have DNA evidence from a crime scene tested for the presence of a third party’s DNA. Prible stated that he contended all along that someone else committed the murders, so the possibility that there is DNA evidence from a third party was crucial to his case. The Chapter 64 requirement � that the case must raise an issue of identity for the defendant to be entitled to DNA testing � violated his due-process rights, because it prevented him from introducing evidence that someone else committed the crime. At the hearing on the motion for DNA testing, Prible pointed out that the U.S. Supreme Court had recently held that a state cannot enforce a statute that prevents a defendant in a criminal trial from introducing evidence to prove that someone else committed the offense. He argued that, in the situation of post-conviction DNA testing, the state cannot restrict the grounds to exclude testing for the DNA of a third party and therefore Texas law unfairly discriminates against a defendant who wants to show that someone else committed the offense. According to Prible, the identity issue was satisfied, because Prible pleaded not guilty, and the statute does not say that the identity issue must pertain to the DNA. The state responded that identity must be raised by the DNA since that is what is covered by Chapter 64. And, in this case, the issue of identity is not resolved by the DNA, because Prible said that his DNA was found in the mouth of the victim due to a consensual sexual encounter they had the night of the murder. HOLDING:Affirmed. Under Texas Code of Criminal Procedure Art. 64.03, a defendant is not entitled to DNA testing unless he first shows that unaltered evidence is available for testing; that identity was an issue in the case; that there is greater than a 50 percent chance that he would not have been convicted if DNA testing provided exculpatory results; and that the request is not to delay the execution of the sentence. In Holmes v. South Carolina, the 2006 U.S. Supreme Court case relied upon by Prible, the Supreme Court considered a state evidence rule that prohibited the admission of evidence of third-party guilt at a criminal trial if the state had presented forensic evidence that strongly supported a guilty verdict. The South Carolina appellate court in Holmes upheld the trial court’s decision to not allow the defendant to enter evidence relating to a third party, holding that where there is strong evidence of an appellant’s guilt, especially when it is strong forensic evidence, evidence of a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence. The Supreme Court held that defense evidence of third-party guilt cannot be excluded based solely on the strength of the prosecution’s case, because to do so would deny the defendant the constitutional right to a meaningful opportunity to present a complete defense. Prible argued that the requirements for testing under Chapter 64 presented the same bar to his presentation of evidence of third-party guilt. The distinguishing factor in the case, the CCA stated, “is that the issue in Holmes relates to a defendant’s right to present a complete and meaningful defense at trial, including evidence of third-party guilt, whereas this case involves Chapter 64 claims that arise long after the defendant has presented his defense evidence in a fair trial.” Because the holding in Holmes is based on state rules that prohibit the admission of third-party evidence at a criminal trial, the CCA stated that it does not relate to Chapter 64 motions for DNA testing. Additionally, the CCA stated, Chapter 64 does not exclude all evidence of third-party guilt. Rather, the statute proscribes testing if additional DNA testing would not result in exculpatory evidence that would have altered the outcome of the trial. Evidence of a another person’s DNA in addition to Prible’s is not exculpatory evidence in this case due to the additional evidence presented at the trial. Thus, even if the evidence was retested and determined to contain another person’s DNA in addition to Prible’s DNA, it would not establish by preponderance of the evidence that Prible would not have been convicted if the jury had heard that DNA from a third-party was present. Finally, the CCA rejected Prible’s argument that the Art. 64.03(a)(1)(B) requirement that identity be an issue in the case is satisfied, because he pleaded not guilty and claimed throughout the trial that someone else committed the murders. The issue of identity as it pertains to Chapter 64, the court stated, is not raised solely by a plea of not guilty. Accordingly, the CCA agreed with the findings of the trial court and held that the requirements of Chapter 64 did not violate Prible’s due-process rights. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey and Cochran, JJ., joined. CONCURRENCE:Holcomb, J., concurred without a written opinion.

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