Garcia, Randall Anthony

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1039-08

RANDALL ANTHONY GARCIA, Appellant v. THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and M EYERS, J OHNSON, K EASLER, H ERVEY, H OLCOMB and C OCHRAN, JJ., joined.

W OMACK, J., concurred in the result.

OPINION

We granted the appellant’s petition for discretionary review in this case to review the decision of the court of appeals that his motion and supporting affidavit were insufficient to entitle him to post-conviction DNA testing under the provisions of Chapter 64 of the Code of Criminal Procedure.1 The court of appeals held, inter alia, that the appellant’s motion and affidavit failed to demonstrate that the biological evidence in the custody of the State which he now seeks to have tested was not previously tested.2

In the second ground for review in his petition for discretionary review, the appellant argues that his affidavit, required to accompany his motion and to support the allegations of fact therein,3 at least implicitly established that the biological evidence had never before been subjected to DNA testing. In that affidavit he asserted simply that “I did not murder my wife and I know that if items that were recovered from her apartment by the police were subjected to DNA testing, it would prove that I did not murder her.” Even assuming, arguendo, that this assertion would suffice to establish by implication that the biological evidence had never before been subjected to DNA testing (a proposition about which we are dubitante), this would not fully satisfy the requirements of Article 64.01(b)(1). That provision requires a showing not only that the biological evidence in the State’s custody was not previously subjected to DNA testing, but also why the biological evidence was not previously tested—either because such testing was “not available,” it was “available, but not technologically capable of providing probative results[,]” or “through no fault of the [appellant], for reasons that are of a nature such that the interests of justice require DNA testing[.]” 4 Nowhere in his supporting affidavit did the appellant explain why the biological evidence at issue was not previously tested.

It is true that, in the motion itself, the appellant alleged that he is entitled to the testing he seeks because it would “tend to exculpate [him] and indicate the guilt of another party.” He asserted that for this reason alone he was able to satisfy the statutory requirement to show that the biological evidence “was not previously subjected to DNA testing . . . through no fault of his [own], for reasons that are of a nature such that the interests of justice require DNA testing[,]” under Article 64.01(b)(1)(B).5 But we have this day rejected the argument that a mere assertion that post-conviction DNA testing would establish that an applicant seeking DNA testing would not have been convicted, under Article 64.03(a)(2)(A),6 will also fully satisfy the no-fault provision of Article 64.01(b)(1)(B).7

Because neither the appellant’s motion nor his affidavit in support thereof established any of the statutorily acceptable explanations for why the biological evidence was not previously subjected to DNA testing, we agree with the court of appeals that he has not shown he was entitled to post-conviction DNA testing under Chapter 64. As the court of appeals noted, if a trial court’s decision is correct on any theory of law applicable to the case, a reviewing court will not disturb it. 8 This disposition renders the appellant’s first ground for review moot,9 and we therefore dismiss it.

Accordingly, we affirm the judgment of the court of appeals.

Delivered: September 23, 2009 Do Not Publish