IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. AP-77,125
WILLIAM DARIN IRVAN, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL OF A CHAPTER 64 PROCEEDING CAUSE NO. 0864928 IN THE 180TH DISTRICT COURT HARRIS COUNTY
Per curiam.
OPINION
Appellant William Darin Irvan was convicted of capital murder and
sentenced to death in 2003 for the 1987 sexual assault and killing of Michelle
Shadbolt. This Court affirmed Appellant’s conviction and sentence on direct
appeal. Irvan v. State, No. AP-74,853 (Tex. Crim. App. June 7, 2006) (not Irvan - 2
designated for publication). After the completion of postconviction DNA testing
pursuant to Texas Code of Criminal Procedure Chapter 64, the convicting court
held an evidentiary hearing and issued findings of fact and conclusions of law.
Therein, the court concluded that Appellant “fail[ed] to show that, had the results
of the postconviction DNA testing been available during his trial, it is reasonably
probable he would not have been convicted.” See Art. 64.04.1 In three issues,
Appellant appeals the convicting court’s finding. See Art. 64.05. For the reasons
discussed below, we conclude that none of the issues are meritorious. Accordingly,
we affirm the convicting court’s determination.
I. BACKGROUND
A. Trial Evidence
Michelle Shadbolt was sexually assaulted and murdered in her home in 1987.
She had been stabbed seventeen times, suffered a large neck laceration, and
sustained blunt-force head injuries. She was found wearing only a shirt pulled up
over her shoulders. There was no sign of forced entry into the residence. Michelle
and her husband Jack had separated approximately six weeks before. The case
remained unsolved.
1 All references to “Article” in this opinion, unless we specify otherwise, are to the Code of Criminal Procedure. Irvan - 3
In 1998, eleven years after the murder, evidence was submitted for DNA
testing, which was then a recently available investigatory tool. Subsequent testing
in 2002 revealed Appellant’s DNA profile in the male fraction of Michelle’s rectal
swab (frequency 1-in-233,100 to 1-in-607,300) and vaginal swab (1-in-67.1 billion).
Appellant was subsequently indicted and tried for capital murder in
December 2003. At trial, the State’s theory was that Appellant, who was a
childhood acquaintance of Michelle, murdered her in the course of committing or
attempting to commit sexual assault. The defense argued that Appellant had a
consensual sexual relationship with Michelle. However, the State presented
evidence that, when Appellant was interviewed by police, he denied the existence
of any romantic or sexual relationship. The record also included evidence of an
incident several years before the murder in which Appellant allegedly
inappropriately touched Michelle and evidence that Appellant kidnapped and
attempted to rape another woman about a year after the murder.
The State presented testimony from Tamara Llamas, a convicted felon and
Appellant’s former girlfriend. Llamas claimed that Appellant confessed to her in
1987 that he “got carried away” and killed Michelle after she refused to have sex
with him. Llamas did not report the alleged confession until 2001. Irvan - 4
Additional evidence showed that Appellant was excluded as the source of
ridge detail found on a trophy at the crime scene, while other prints on a knife and
the trophy lacked sufficient detail for identification or comparison purposes.
Forensic analyst William Watson’s pretrial DNA testing on two hairs excluded
both Appellant and Michelle as contributors. The first hair (Hair 20A) was found
in Michelle’s fingernail scrapings. The second hair (Hair 30H) was found on the
wheel of a vacuum cleaner near Michelle’s body. The jury was aware of the print
and the hair evidence recovered at the scene. The jury nevertheless convicted
Appellant of capital murder.
B. DNA Testing
Beginning in 2014, the convicting court entered a series of agreed orders
authorizing Chapter 64 DNA testing. That testing spanned nearly a decade.
Appellant was excluded as a contributor to all postconviction samples in which
DNA profiles were obtainable.
Jack’s DNA profile could not be excluded from several hairs recovered from
the fitted sheet that was on Michelle’s bed at the time of her murder. Hair 20A, as
previously discussed, was recovered from Michelle’s fingernail scrapings and
subjected to DNA testing before trial. At trial, some testimony was presented that Irvan - 5
Hair 20A was a “probable” pubic hair and that mitochondrial DNA (mtDNA)
testing excluded both Michelle and Appellant as contributors. A DNA profile from
Hair 20B, which was also recovered from fingernail scrapings, was likewise
extracted in pretrial testing, but no mtDNA results were recorded, and there was
no trial testimony about this hair. In the Chapter 64 proceeding, Hair 20B was
forwarded for DNA testing, but no usable DNA profile could be obtained. Hair
30H (recovered from the vacuum cleaner wheel) was not retested, but Jack was
excluded as a contributor. Additionally, all evidence submitted for Chapter 64
DNA testing was compared to a partial Short Tandem Repeat (STR) profile from
an early suspect, Timothy Darden. These comparisons either resulted in
exclusions or were deemed “uninformative.”2 Michelle’s vaginal and rectal swabs
were not retested.
C. Article 64.04 Hearing
Three DNA experts testified at the April 2024 hearing: Jenny Lounsbury
(DPS forensic scientist, trace evidence section), Jessica Ehmann (DPS assistant
2 DPS analyst Jessica Ehmann explained that STR DNA testing results are reported as a likelihood ratio. Under previous DPS standards, likelihood ratios falling between .01 and 1,000 were categorized as “inconclusive.” Under updated DPS standards, likelihood ratios falling between .5 and 2 are categorized as “uninformative,” which indicates that the probability that the individual’s profile was part of the sample’s profile is nearly equal to the probability that the individual’s profile was not part of the sample’s profile. Irvan - 6
technical leader, DNA section), and Elizabeth Johnson Ph.D. (Appellant’s
postconviction forensic DNA expert). The court limited Johnson’s live testimony
to her explanation of the DNA testing results, but it admitted her written report
into evidence. Johnson’s report addressed both pretrial and postconviction DNA
testing and included her evaluation of pretrial laboratory procedures.
D. The Convicting Court’s Findings of Fact and Conclusions of Law
After summarizing the evidence presented at trial, the results of all DNA
testing, and the evidence presented at the Article 64.04 hearing, the convicting
court concluded that Appellant “fail[ed] to show that, had the results of the
postconviction DNA testing been available during his trial, it is reasonably probable
he would not have been convicted.”
II. ISSUES PRESENTED
In his appeal, Appellant raises three issues:
(1) Whether the convicting court improperly excluded critical witness testimony at the Article 64.04 hearing, thereby hindering Appellant from meeting his burden under the statute.
(2) Whether the convicting court erred in finding that it is not reasonably probable that, had the postconviction DNA testing results been available at trial, Appellant would not have been convicted.
(3) Whether the convicting court erred in denying Appellant’s Irvan - 7
request to order submission of Hair 30H’s DNA profile to the Combined DNA Index System (CODIS) under Article 64.035.
III. APPLICABLE LAW
Article 64.04 provides that after examining postconviction DNA testing
results, “the convicting court shall hold a hearing and make a finding as to
whether, had the results been available during the trial of the offense, it is
reasonably probable that the person would not have been convicted.” Appellant
bears the burden of proof. See Dunning v. State, 572 S.W.3d 685, 693 (Tex. Crim.
App. 2019).
An affirmative or favorable answer to the Article 64.04 inquiry requires that
the DNA testing results “affirmatively cast doubt” on the conviction’s validity;
results that merely “muddy the waters” by raising theoretical possibilities will not
suffice. See Ex parte Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011).
“When post-conviction testing leaves the court with a question, the court looks to
the evidence raised at trial to determine if the jury would still have convicted the
appellant had this evidence been presented to them.” Raby v. State, No.
AP-76,970, slip op. at 13. (Tex. Crim. App. Apr. 22, 2015) (not designated for
publication).
Although Raby is an unpublished opinion, it is persuasive. In Raby, we relied Irvan - 8
on and quoted the published Gutierrez decision when analyzing whether DNA
testing results would have altered the trial landscape. See Raby, slip op. at 13 (citing
Gutierrez, 337 S.W.3d at 892). Although the procedural contexts differ—with
Gutierrez involving a testing request under Article 64.03 and Raby involving
post-testing findings under Article 64.04—that difference does not change the
underlying legal analysis. In both contexts, a “favorable” result means one that
affirmatively casts doubt on the conviction rather than merely introducing
uncertainty. See Art. 64.03(a)(2)(A)(stating that “the person would not have been
convicted if exculpatory results had been obtained through DNA testing”); Art.
64.04 (stating that “had the results been available during the trial of the offense, it
is reasonably probable that the person would not have been convicted”). The
governing question is the same: whether it is likely that the person would not have
been convicted had the results been available at trial. Thus, judicial interpretations
of this materiality standard apply equally to both stages of the Chapter 64 inquiry.
See Asberry v. State, 507 S.W.3d 227, 228-29 (Tex. Crim. App. 2016) (“[W]e do
not see any reason to treat a review of a ruling pursuant to Article 64.04 differently
than a ruling pursuant to Article 64.03.”).
Ultimately, when reviewing an Article 64.04 finding, we apply a bifurcated Irvan - 9
standard of review. Skinner v. State, 665 S.W.3d 1, 16 (Tex. Crim. App. 2022).
Under this bifurcated standard, we give almost total deference to the convicting
court’s determination of historical facts and application-of-law-to-fact questions
turning on witness credibility and demeanor. Id. When reviewing other
application-of-law-to-fact questions, we defer to the convicting court’s subsidiary
findings of historical fact, but we review its application of the law to those facts de
novo. Id.
IV. ANALYSIS
A. Issue One: Limitations on Testimony
According to Appellant, the convicting court hindered his ability to meet his
burden by restricting testimony at the Article 64.04 hearing to explanation of the
postconviction DNA testing results. He says that the court improperly prevented
Watson’s live testimony regarding pretrial sample collection methods and
observations and prevented Johnson’s live testimony regarding pretrial testing
procedures and evidence handling. We review the court’s evidentiary rulings for an
abuse of discretion. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999). A
court abuses its discretion when its ruling falls outside the zone of reasonable
disagreement. See State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Irvan - 10
Article 64.04 directs the convicting court to examine the results of
postconviction testing and assess their effect on the trial outcome. While the court
considers all trial evidence in assessing the significance of the new DNA test
results, Article 64.04 itself is narrowly focused on evaluating whether the new
DNA evidence creates a reasonable probability of non-conviction. See Art. 64.04
(requiring the convicting court to hold a hearing and determine “whether, had the
results been available during the trial of the offense, it is reasonably probable that
the person would not have been convicted”) (emphasis added). This Court has
recognized the scope of Article 64.04 hearings is limited to explaining and
evaluating the DNA testing results rather than allowing broad relitigation of the
underlying case. In Rivera v. State, we explained that Article 64.04 hearings serve
as a forum to submit evidentiary matters relating to “test results.” 89 S.W.3d 55,
59 (Tex. Crim. App. 2002). In Raby, we concluded that “evidence presented at a
Chapter 64 hearing [under Article 64.04] should be limited to the explanation of
the results of the new DNA testing” and emphasized that such hearings are not
retrials. No. AP-76,970, slip op. at 20. Here, the convicting court did not abuse its
discretion in confining live testimony to explanation and interpretation of
postconviction DNA testing results. Irvan - 11
Further, even assuming error, any such error was harmless. See Tex. R. App.
P. 44.2(b). The information Appellant claims was improperly excluded was in fact
before the court. The convicting court admitted Johnson’s comprehensive written
report, which addressed both Watson’s pretrial testing and the postconviction
testing. Appellant has not shown how additional live testimony would have altered
the court’s ultimate finding on the Article 64.04 inquiry, particularly given that
Appellant’s DNA in Michelle’s vaginal and rectal swabs—which were never
retested—remains compelling incriminating evidence.
We overrule Issue One.
B. Issue Two: Reasonable Probability Finding
Appellant argues that the postconviction DNA exclusions create a
reasonable probability that he would not have been convicted had these results
been available at trial. He contends that the convicting court: (1) failed to consider
how the postconviction testing critically weakened the State’s trial theory; (2)
exceeded Article 64.04’s scope by making findings about his consensual
relationship argument, which he says are unrelated to DNA testing results; (3)
adopted findings unsupported by the record, particularly regarding the non-
characterization of Hair 20B as a pubic hair and the insignificance of Jack’s hair Irvan - 12
evidence; and (4) improperly substituted its own judgment for that of a jury by
making credibility determinations and weighing evidence rather than assessing
whether a reasonable jury would still unanimously convict.
1. Convicting Court’s Alleged Failure to Properly Consider the Postconviction DNA Testing Results
Appellant argues that because the prosecution’s case was almost entirely
circumstantial, evidence excluding him from crime-proximate biological material
would have fundamentally altered at least one juror’s decision. He emphasizes that
both he and Jack are excluded from crime-proximate hairs—one from Michelle’s
fingernail scrapings (Hair 20B) and one from the vacuum cleaner wheel (Hair
30H)—and he argues these results introduce an unknown perpetrator. Appellant
also emphasizes the DNA results showing the probable presence of Jack’s hair on
Michelle’s fitted bed sheet. Appellant asserts that these DNA results contradict
the prosecutor’s trial argument that DNA testing eliminated Jack as a suspect.
Additionally, Appellant stresses that the State’s case included no eyewitnesses, no
fingerprints, and no physical evidence in the home connecting him to the murder.
Instead, Appellant notes that the State relied heavily on testimony from his former
girlfriend Llamas, who first reported his alleged 1987 confession in 2001, roughly
fourteen years after the murder. Irvan - 13
We disagree that the convicting court failed to consider the DNA testing
results in the context of the trial as a whole. It determined that the core inculpatory
evidence remains unchanged by postconviction testing: Appellant’s DNA was
found in Michelle’s vaginal and rectal swabs at statistically significant frequencies.
Appellant did not request that these swabs be retested. The convicting court found
Appellant’s consensual relationship theory not credible based on: Appellant’s
denial to police of any romantic or sexual relationship with Michelle; trial
testimony that Michelle was not dating; and the absence of credible evidence
supporting the existence of such a relationship. The record supports these
credibility findings, and they are entitled to deference.
The fact that postconviction DNA testing excluded Appellant from other
evidence does not affirmatively cast doubt on his conviction. The jury heard
evidence that investigators found unidentified hairs at the scene, including Hair
20A from fingernail scrapings and Hair 30H from the vacuum wheel, and yet
convicted Appellant. The postconviction testing results merely confirm what the
jury already knew: some biological material at the scene came from unidentified
sources.
Further, Appellant’s reliance on the discovery of Jack’s hair on the fitted Irvan - 14
bed sheet is misplaced. Michelle was killed in the living room, not the bedroom,
and there was no blood or semen in the bedroom. Jack lived in the home until six
weeks before the murder, and thus finding his hair on the bed sheet is not
remarkable. We have explained that “the significant possibility of DNA being
deposited by an innocent person reduces the probative value of any exculpatory
DNA test result.” Hall v. State, 569 S.W.3d 646, 658 (Tex. Crim. App. 2019). And
as we have also noted, the fact that someone else’s DNA is found at a crime scene
does not necessarily establish favorability when there is substantial evidence of
guilt. See State v. Swearingen, 424 S.W.3d 32, 38-39 (Tex. Crim. App. 2014).
Appellant further emphasizes that the prosecutor argued to the jury that
DNA testing “cleared, once and for all, Jack Shadbolt.” However, the
prosecutor’s argument referred to Jack’s exclusion from Michelle’s vaginal and
rectal swabs where Appellant’s DNA was found at statistically significant
frequencies. The postconviction discovery of Jack’s hair on the fitted bed sheet in a
room where he slept until six weeks before the murder and where there is no
evidence that an assault occurred does not contradict the prosecutor’s argument.
Appellant fails to demonstrate that the convicting court did not consider the
DNA testing results in the context of the trial as a whole or that those results Irvan - 15
critically undermine the State’s case.
2. Convicting Court’s Findings Allegedly Outside Article 64.04’s Permissible Scope
Appellant argues that the convicting court exceeded its authority under
Article 64.04 by making credibility findings about the existence of a consensual
romantic or sexual relationship between himself and Michelle. He contends that
Article 64.04 hearings are narrowly limited to evidentiary matters relating to DNA
testing results and that the court erred by making findings about trial evidence
unrelated to the DNA testing. He also asserts that postconviction DNA testing
results cannot establish whether the sexual encounter was consensual. The State
counters that the convicting court properly considered trial evidence and argues
that Appellant’s complaint contradicts his earlier assertion that the court failed to
properly consider all the trial evidence.
While Article 64.04 hearings serve as “a forum to submit evidentiary
matters relating to the test results,” Rivera, 89 S.W.3d at 59, we have made clear
that courts must consider the trial evidence as a whole when determining whether
DNA results are favorable. See Dunning, 572 S.W.3d at 697-98. This is because
Article 64.04 requires the convicting court to evaluate whether new DNA
evidence, when considered alongside all trial evidence, creates a reasonable Irvan - 16
probability that an appellant would not have been convicted had those results been
available at trial. This requires courts to consider trial evidence—not to conduct a
wholesale retrial of the underlying offense, but to determine whether the new DNA
evidence, viewed alongside all other trial evidence, affirmatively casts doubt on the
conviction’s validity.
Here, the convicting court’s evaluation of Appellant’s consensual
relationship theory—a credibility assessment—falls squarely within this framework
and directly relates to determining the significance of the Chapter 64 DNA testing
results. In deciding whether there is a reasonable probability that a jury would not
have convicted Appellant had the jury heard the new DNA evidence, the court was
required to consider how a rational jury would likely view Appellant’s proffered
explanation for the presence of his DNA profile in Michelle’s vagina and rectum in
light of the full trial record. This record included Appellant’s pretrial denial of any
romantic or sexual relationship and the testimony of multiple witnesses who denied
such a relationship existed, which is reflected in the court’s findings. The court
permissibly found that Appellant’s explanation was weak and that a reasonable jury
would be unlikely to give it substantial weight even given the new DNA results. Irvan - 17
Moreover, the court did not treat this finding as dispositive of the Article
64.04 inquiry. As the convicting court recognized, the new DNA exclusions largely
confirm the trial evidence, i.e., that biological material from unidentified
contributors was present at the scene. But the jury knew this, and the State’s case
nevertheless persuaded it beyond a reasonable doubt. We agree that the additional
postconviction exclusions do not diminish the strong inculpatory force of the
vaginal and rectal DNA evidence and Appellant’s alleged confession; they merely
refine the understanding of whose DNA is not present in certain locations without
supplying an affirmative alternative perpetrator or undermining the core evidence
upon which the jury relied.
Appellant fails to show that the convicting court erroneously made findings
outside Article 64.04’s permissible scope.
3. Convicting Court’s Findings Allegedly Unsupported by the Record
Appellant claims that the convicting court mischaracterized evidence and
drew improper causal inferences, making its findings unsupported by the record.
As discussed below, these challenges lack merit.
First, Appellant argues the convicting court’s dismissal of Jack’s hair on the
bed sheet reflects flawed reasoning. He emphasizes that Jack was the State’s initial Irvan - 18
suspect and that six weeks of separation is substantial enough to question why his
hair’s presence should be deemed insignificant. The State counters that Jack’s hair
on a bed he slept in until six weeks before the murder is exactly where it would be
expected to be found. More critically, the State emphasizes that Michelle was not
killed in the bedroom but in the living room. The State argues that this spatial
disconnect, combined with the absence of blood or semen in the bedroom,
undermines any inference that Jack’s hair on the bed sheet implicates him in the
offense. Nothing suggests that the convicting court improperly assessed this bed
sheet hair evidence, nor were the court’s findings unsupported by the record.
Second, Appellant argues that the convicting court wrongly equated the
presence of his DNA in Michelle’s vagina and rectum as proof that a sexual assault
occurred and that any sexual contact coincided with the murder. At trial, the
defense argued that the presence of Appellant’s DNA in Michelle’s vagina and
rectum could be due to consensual sexual contact unrelated to the murder. In
closing argument, the State rejected the consensual relationship claim as lacking
any credible evidence to support it and pointed to additional physical
evidence—bloody fingermarks on Michelle’s “rear end”—as corroboration that a
sexual assault occurred. Nothing suggests that the convicting court erred in Irvan - 19
assessing the vaginal and rectal DNA swab evidence in light of the new DNA
testing, nor were the court’s findings unsupported by the record.
Third, Appellant asserts that the convicting court factually erred in finding
that he presented no evidence that Hair 20B found under Michelle’s fingernail was
a pubic hair. Appellant is correct that some evidence was presented on this point.
Watson’s pretrial testing notes described Hair 20B as a “probable” pubic hair
based on morphology, and Johnson relied on that characterization in her testimony.
Lounsbury described Hair 20B as “wiry and coarse” but classified it as a “hair
fragment” because she could not determine whether it was pubic or head hair.
Nevertheless, the convicting court’s finding reflects the weight it assigned to
competing expert testimony, not a determination that no evidence existed. Watson
was not a trained hair examiner and qualified his opinion as only “probable.”
Lounsbury, a forensic scientist trained in trace evidence analysis, examined the
same hair and testified she could not definitively determine its type. Johnson
acknowledged she had no formal training in hair examination. The convicting court
permissibly credited Lounsbury’s more qualified opinion over Watson’s tentative
characterization and Johnson’s derivative testimony. The convicting court’s
credibility determination is entitled to deference. Irvan - 20
Appellant fails to show that the convicting court made findings unsupported
by the record.
4. Convicting Court’s Credibility Determinations and the Jury’s Role
Appellant argues that the convicting court improperly substituted its own
judgment for that of a jury by making credibility determinations and weighing
evidence. He contends that Article 64.04 requires courts to assess whether a
reasonable jury, presented with new DNA testing results, would still unanimously
convict, not whether the court itself finds the evidence credible. Appellant asserts
that the convicting court overstepped by: characterizing Lounsbury’s Hair 20B
testimony as credible; labeling Johnson an advocate rather than an objective expert
and rejecting her opinions; declaring that DNA results labeled “uninformative”
have no evidentiary weight; and deeming Appellant’s consensual relationship
theory incredible. The State counters that Appellant merely disagrees with the
convicting court’s Article 64.04 conclusion and fails to demonstrate how the new
DNA evidence meaningfully differs from what the jury considered at trial.
Although the jury was the factfinder at trial, Article 64.04 necessarily assigns
the convicting court the role of resolving factual disputes and making credibility
determinations at the Article 64.04 hearing to aid its statutory inquiry. See Irvan - 21
Dunning, 572 S.W.3d at 696. The court does not conduct a new trial, but instead
evaluates how a reasonable jury would likely regard the evidence in light of the
court’s credibility findings. Id. The convicting court’s credibility assessments
regarding the reliability of Johnson’s opinions—particularly her characterization of
Hair 20B as pubic hair without any formal training in hair examination—fall within
this proper role. Similarly, the convicting court’s determination that the
“uninformative” DNA result regarding Darden has no evidentiary weight is a
reasonable assessment: evidence equally consistent with inclusion and exclusion
provides no meaningful support for either position. The convicting court’s finding
that Appellant’s consensual relationship theory lacked credibility, supported by the
record as discussed above, reflects an appropriate step in the Article 64.04 analysis
rather than an improper substitution of the court’s own judgment for that of a jury.
Appellant fails to demonstrate that the convicting court impermissibly made
credibility determinations in violation of Article 64.04.
In all, the presence of Appellant’s DNA in Michelle’s vagina and rectum,
combined with his alleged confession to Llamas and the convicting court’s finding
that Appellant’s consensual relationship theory lacks credibility, constitutes
compelling inculpatory evidence. When considered with this evidence, the Irvan - 22
postconviction DNA exclusions do not create a reasonable probability that
Appellant would not have been convicted had these results been available at trial.
The convicting court’s Article 64.04 finding is supported by the record, and the
convicting court did not err in entering it. We overrule Issue Two.
C. Issue Three: CODIS Submission
Appellant argues that the convicting court erred in denying his request to
order submission of the Hair 30H DNA profile to CODIS under Article 64.035.
That statute provides:
If an analyzed sample meets the applicable requirements of state or federal submission policies, on completion of the testing under Article 64.03, the convicting court shall order any unidentified DNA profile to be compared with the DNA profiles in: (1) the DNA database established by the Federal Bureau of Investigation; and (2) the DNA database maintained by the Department of Public Safety under Subchapter G, Chapter 411, Government Code.
Art. 64.035. Appellant’s reliance on this provision is misplaced.
First, Article 64.035’s mandatory comparison obligation is triggered only on
completion of testing under Article 64.03. That is, Article 64.035 applies only to
DNA profiles generated on completion of Chapter 64 testing, not to pretrial
profiles developed outside the statutory postconviction testing framework. Hair
30H’s DNA profile was generated during pretrial investigation, not “on Irvan - 23
completion” of Chapter 64 testing. Because Hair 30H’s profile was not generated
through Chapter 64 postconviction testing, the statute’s plain language does not
encompass it.
Second, Appellant presented no evidence establishing that Hair 30H’s DNA
profile met the applicable requirements of state or federal database submission
policies. The convicting court has no authority to order submission of profiles that
fail to satisfy the technical standards established by the administering agencies for
CODIS inclusion.
We hold the convicting court correctly concluded that Article 64.035 does
not apply to pretrial DNA profiles generated outside Chapter 64 proceedings. We
overrule Issue Three.
V. CONCLUSION
The convicting court properly exercised its discretion in conducting the
Article 64.04 hearing, correctly applied the reasonable-probability standard in
evaluating the postconviction DNA testing results, and appropriately denied
CODIS submission of Hair 30H’s profile under Article 64.035. Appellant has not
shown that the postconviction DNA exclusions affirmatively cast doubt upon the
validity of his conviction. The core inculpatory evidence—his DNA in Michelle’s Irvan - 24
vagina and rectum at statistically significant frequencies—was never retested
postconviction and remains probative. This incriminating evidence, combined with
Appellant’s alleged confession to a former girlfriend and the convicting court’s
supported finding that his consensual relationship theory lacks credibility,
constitutes substantial evidence that the Chapter 64 DNA testing has not
overcome. We affirm the convicting court’s Article 64.04 determination.
Delivered: February 12, 2026 Do not publish