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Click here for the full text of this decision FACTS:Yarbrough and Milton Brumfield were convicted of capital murder for fatally shooting Jerry Lee Shaw in a roadside restroom during the course of a robbery. Two eyewitnesses stated that they heard gunshots fired within 20 to 30 seconds after Shaw entered the restroom. An African-American male and a Caucasian male immediately ran from the restroom. One of the eyewitnesses identified Brumfield as the African American. They both stated that Brumfield and his companion left the scene in a red car which appeared to be a Ford Escort or Mercury Lynx and had the numerals 8 and 9 included in the license plate number. Yarbrough owned a red Mercury Lynx with license plate number 898 MMR. Brumfield gave a series of written statements admitting that he participated in the crime. Brumfield stated that Yarbrough and he had entered the restroom that night for the purpose of robbing someone. He said that Yarbrough is the one who shot Shaw. A jury convicted Yarbrough of capital murder in 1990 and made the necessary findings for a death sentence. The CCA reversed the conviction and ordered a new trial because of significant inaccuracies in the statement of facts which could not be corrected. On remand, Yarbrough pleaded guilty after the state agreed to waive the death penalty. The trial court sentenced him to life imprisonment. Yarbrough later filed a motion for appointment of counsel to obtain post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The court appointed Yarbrough’s trial counsel to represent him in these proceedings. Yarbrough’s attorney filed a motion for DNA testing without identifying any particular evidence to be tested. Yarbrough’s attorney and Yarbrough himself both filed motions for a bench warrant so Yarbrough could appear at the hearing on the motion for DNA testing. The state filed a motion asking the court to deny Yarbrough’s request for DNA testing. The state identified the evidence in its possession which could conceivably be tested and argued that the request should be denied because: 1. identity was not an issue at trial; and 2. exculpatory results would not establish by a preponderance of the evidence that Yarbrough would not have been convicted if those results had been available at trial. Following a hearing on Yarbrough’s motions for a bench warrant, the court denied those motions. The court later conducted a hearing on the merits of Yarbrough’s motion for DNA testing. Yarbrough argued that eyewitness identification was inconclusive and that additional testing would serve either to confirm or refute Brumfield’s statements and testimony about how the offense occurred. The court denied Yarbrough’s motion for DNA testing. The court adopted the state’s proposed findings of fact and its sole proposed conclusion of law. This conclusion of law states: “The Court concludes that the Applicant has failed his burden of proof and has not met the requirements of Art. 64.03 � (a)(2)(A) V.A.C.C.P. and that his motion for DNA testing should be denied.” HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 64.01(b) provides for the postconviction DNA testing of evidence containing biological material if that evidence “was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense.” Under Art. 64.03(a), a court may order testing only if: 1. the evidence still exists in a condition making DNA testing possible and has been subjected to a sufficient chain of custody; 2. identity was or is an issue in the case; and 3. the defendant has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained from DNA testing, and the request for testing is not made to unreasonably delay execution of sentence or the administration of justice. First, the court found that because Yarbrough had no right to be present at the hearing, the court did not err by denying his motion for a bench warrant. Next, Yarbrough contended that the issue of identity was and is at issue in his case notwithstanding his guilty plea. Only evidence which “was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense” is subject to court-ordered testing, the court stated. Accordingly, the court held that the trial court did not err by refusing to order the state to exhume Shaw’s body to check for fingernail scrapings containing DNA or to obtain a specimen of Brumfield’s DNA. Yarbrough argued that he established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained from the requested testing. The court, however, found that exculpatory results would serve only to muddy the waters regarding Yarbrough’s guilt. This is particularly true, the court stated, in view of the fact that the record contains sufficient other evidence tending to connect Yarbrough to the commission of the offense as a party. Thus, the court concluded that Yarbrough failed to prove beyond a reasonable doubt that that he would not have been convicted if exculpatory results had been obtained. OPINION:Reyna, J.; Gray, C.J.; Vance and Reyna, JJ.

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