In the
Court of Appeals Second Appellate District of Texas at Fort Worth
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No. 02-26-00006-CR
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PATRICK EVANS, Appellant V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2 Tarrant County, Texas
Trial Court No. 0989458
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Pro se Appellant Patrick Evans challenges the trial court’s denial of his fifth motion for postconviction forensic DNA testing.1 In two points, Evans argues that the trial court abused its discretion by denying his motion for forensic DNA testing and by denying his motion for an expert witness and an evidentiary hearing. Because neither of his points is meritorious, we affirm.
II. Background
Evans was convicted of capital murder and sentenced to life in prison after a jury found that he had robbed and killed Melvyn Williams. See Evans v. State, 628 S.W.3d 358, 359 (Tex. App.—Fort Worth 2021, no pet.). Evans has maintained his innocence.
1 References to the trial court’s actions include those actions taken by a criminal-law magistrate as part of the magistrate’s delegated responsibilities and adopted by the trial court in accordance with Chapter 54, Subchapter H of the Texas Government Code. See Tex. Gov’t Code §§ 54.651–.662.
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A. Evidence at Trial2 At his capital-murder trial, Evans’s associate, Mercutio “Kee Kee” Howard, testified that Evans had told him that he had murdered Williams while the two men sat in Evans’s Dodge Intrepid outside a Houston apartment complex in 2005. According to Kee Kee, Evans lured Williams out of his apartment and into the front seat of the Intrepid; then he shot Williams in the head and went into Williams’s apartment to steal his drugs and guns. After the robbery, Evans put the dead body in the trunk of his Intrepid, drove the body from Houston to Fort Worth, recruited Kee Kee and two other men—Courtney Davis and Joseph Tolliver—to help move the body into a shed, and purchased a chainsaw with the intention of dismembering the body. Tolliver later helped detectives locate the murder weapon—a bloodstained .380 Davis Industries (DI) pistol—in the shed where Williams’s body was found. The police recovered two other weapons as well: a 9mm Ruger pistol, and a .38 Special Smith & Wesson revolver. Evans denied any involvement in the murder; he claimed that Kee Kee, Davis, and Tolliver had borrowed his Intrepid and had committed the murder and that Tolliver had later planted the murder weapon in the shed.
2 A full recitation of the facts, detailing Evans’s associate’s version of the events and Evans’s version of the events, is set forth in Evans v. State, No. 08-07-00213-CR, 2009 WL 2462538, at *1–3 (Tex. App.—El Paso Aug. 12, 2009, pet. ref’d) (not designated for publication). We borrow from the “Evidence at Trial” section in our prior opinion that dealt with the denial of Evans’s second motion for postconviction forensic DNA testing and cite it here once to avoid repetition. See Evans, 628 S.W.3d at 359–60.
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Before trial, the State ordered DNA testing of multiple pieces of evidence. An Orchid Cellmark Laboratory conducted the testing and reported that the victim’s DNA was confirmed or almost certain3 to match the DNA found (1) inside the trunk of Evans’s Intrepid; (2) in blood on a spare tire rim in the trunk of the Intrepid; (3) in blood on the murder weapon; (4) on the right front seatbelt loop of the Intrepid; and (5) on the Intrepid seatbelt and latch. The Orchid Cellmark Laboratory also reported that Evans’s DNA was almost certain4 to match that found on the grip of the murder weapon.
In March 2007, the Crime Laboratory within the Forensic Division of the Fort Worth Police Department (FWPD) learned that two cartridge casings collected as evidence in Evans’s case had been inadvertently swapped, resulting in the cartridges being mispackaged. The FWPD Crime Lab prepared an internal memorandum explaining how the “9mm [Ruger] and .380 [DI] cartridges[ ] were packaged incorrectly by laboratory personnel,” and it surmised that “[m]ost probably the evidence was crossed during the fingerprint processing.”
3 Orchid Cellmark Laboratory quantified the statistical accuracy of its findings by providing a frequency of occurrence. For the five listed DNA samples linked to the victim, the frequency of occurrence ranged from 1 in 54.08 quadrillion to 1 in 13.51 quintillion, varying by race.
4 For the DNA sample from the grip of the murder weapon that was linked to Evans, the frequency of occurrence ranged from approximately 1 in 505.3 thousand to 1 in 10.65 million, varying by race.
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Nonetheless, in June 2007, a jury convicted Evans of capital murder, and the trial court sentenced him to life in prison.5 B. Postconviction Motions Over the almost two decades since his conviction, Evans has filed numerous appeals and petitions for writ of habeas corpus, none of which were successful in overturning his conviction. In the findings of facts that are contained within the “Order Denying Defendant’s Fifth Motion for Post[c]onviction Forensic DNA Testing,” the trial court summarized the case’s procedural history as follows:
2. The Eighth Court of Appeals affirmed the trial court’s judgment. See Evans . . . , 2009 WL 2462538, at *11 . . . .
3. The Court of Criminal Appeals denied [Evans’s] initial application for habeas relief. See Ex parte Evans, No. WR-76,891-02, 2012 WL 4449501, at *1 (Tex. Crim. App. Sept. 26, 2012[) (order, not designated for publication)].
4. [Evans] filed a subsequent appeal, which the Second Court of Appeals dismissed. See Evans v. State, No. 02-13-00522-CR, 2013 WL 6806603, at *1 (Tex. App.—Fort Worth Dec. 19, 2013, no pet.) [(per curiam)] (mem. op., not designated for publication).
5. [Evans] filed a federal petition for a writ of habeas corpus which was denied. See Evans v. Stephens, 4:13-CV-301-A, 2015 WL 66524, at *17 (N.D. Tex. Jan. 5, 2015)[ (mem. op. & order)].
6. The trial court denied [Evans’s] first motion for post[]conviction forensic DNA testing. See Order, signed and filed on September 19, 2019.
Evans does not allege that the State failed to disclose the March 2007 mix up 5
before his June 2007 conviction.
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7. The trial court denied [Evans’s] second motion for post[]conviction forensic DNA testing, which the Second Court of Appeals affirmed. See Evans . . . , 628 S.W.3d [at] 359, 365 . . . ; see also Order, signed and filed on May 21, 2020.
8. The trial court denied [Evans’s] third motion for post[]conviction forensic DNA testing. See Order, signed and filed on March 9, 2022.
9. The Second Court of Appeals dismissed [Evans’s] appeal of the trial court’s third order denying post[]conviction forensic DNA testing as untimely. See Evans v. State, No. 02-22-00093-CR, 2022 WL 2252632, at *1 (Tex. App.—Fort Worth June 23, 2022, no pet.) (mem. op., not designated for publication).
10. The trial court denied [Evans’s] fourth motion for post[]conviction forensic DNA testing. See Order, signed and filed on June 5, 2024.
11. The Second Court of Appeals granted [Evans’s] request to dismiss his appeal of the trial court’s fourth order denying post[]conviction forensic DNA testing. See Evans v. State, No. 02-24- 00227-CR, 2024 WL 3819341 (Tex. App.—Fort Worth Aug. 15, 2024[, no pet.]) [(per curiam)] (mem. op., not designated for publication).
12. On October 29, 2024, [Evans] requested the court appoint counsel to assist him with filing a post[]conviction motion for forensic DNA testing.
13. On April 22, 2025, [Evans] filed his fifth motion for post[]conviction forensic DNA testing.
14. On April 22, 2025, [Evans] filed a supplement to his fifth motion for post[]conviction forensic DNA testing.
15. On August 6, 2025, Presiding Judge William A. Knight referred [Evans’s] fifth motion for post[]conviction forensic DNA testing to the undersigned.
16. On August 6, 2025, the [trial] court ordered the State to file a response. See Order Pursuant to Article 64.02 (filed August 7, 2025).
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17. On August 27, 2025, the State filed its response to [Evans’s]
fifth motion for post[]conviction forensic DNA testing. [Motion references omitted.]
In its December 2, 2025 order denying Evan’s fifth motion for postconviction forensic DNA testing, the trial court also included substantive findings of fact and conclusions of law. Within its findings, the trial court stated the following:
41. The DNA testing results from Orchid Cellmark Laboratory are probative, inculpatory evidence that [Evans] committed this capital murder.
42. [Evans] has made no credible showing that newer testing techniques are capable of providing more-accurate or more-probative results than the PCR testing that was performed by Orchid Cellmark Laboratory.
....
45. Significant non-DNA evidence establishes that [Evans]
murdered Melvyn Williams in the course of robbing him.
46. [Evans] has not shown by a preponderance of the evidence that any new “exculpatory” DNA testing results would establish a reasonable probability of his non-conviction. [Motion reference omitted.]
This appeal followed.
III. Denial of Motion for Postconviction DNA Testing In his first point, Evans contends that the trial court abused its discretion by denying his fifth motion for forensic DNA testing. In his fifth motion, Evans sought retesting of the following previously tested items: a DI handgun (the murder weapon), the front-passenger seatbelt latch, and the Smith & Wesson and 9 mm
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handguns. He also sought testing of a previously untested item—a box of ammunition. Because, as explained below, Evans failed to show by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing, we uphold the trial court’s ruling.
A. Standard of Review The Texas Court of Criminal Appeals has explained the standard of review for Chapter 64 DNA testing as follows:
In reviewing a judge’s ruling on a Chapter 64 motion, this Court gives almost total deference to the judge’s resolution of historical fact issues supported by the record and application-of-law-to-fact issues turning on witness credibility and demeanor. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). But we consider de novo all other application-oflaw -to-fact questions. Id. at 768–69.
Ramirez v. State, 621 S.W.3d 711, 718 (Tex. Crim. App. 2021).
B. Applicable Law A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material. Tex. Code Crim. Proc. art. 64.01(a-1). The convicting court may grant an order for forensic testing only if the court finds that (1) the evidence still exists and is in a condition making DNA testing possible and has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; (2) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; (3) identity was or is
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an issue in the case; and (4) the convicted person establishes by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing and that the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Id. art. 64.03. Generally, a movant does not satisfy his burden under Article 64.03 if “the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing.” Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim. App. 2010); see also Dunning v. State, 572 S.W.3d 685, 698 (Tex. Crim. App. 2019) (“When the true exculpatory value of the test results [is] weighed against all of the inculpatory evidence, we conclude that Appellant has not shown that, had the results been available during the trial of the offense, it is reasonably probable that he would not have been convicted.”).
C. Analysis 6 Here, we could go through each of the items that Evans sought to have tested and detail how he did not meet at least one Article 64.03 requirement, such as that he
6 Evans’s second motion for DNA testing is ambiguous as to the items he sought to have tested. In that motion, he mentioned that the front seatbelt had blood, stated that “all the evidentiary items gathered” were not tested or the ones that were tested were unreliable, and referenced the cartridge mix up. Because it is unclear whether any of the items listed in his fifth motion were covered by his second motion, we will not apply the law-of-the-case doctrine. See generally State v. Swearingen, 424 S.W.3d 32, 35–36 (Tex. Crim. App. 2014) (stating that “when the facts and legal issues are virtually identical, they should be controlled by an appellate court’s previous resolution”).
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did not meet the chain-of-custody requirement for the murder weapon but instead stated in his motion that the detective could have contaminated the profiles on the handgun by using the same brush when he checked various items for fingerprints; that he did not show that newer testing is capable of providing results more accurate and probative than those obtained by the Orchid Cellmark Laboratory, especially when he admitted to the jury that he had touched both the 9 mm Ruger pistol and the .380 Smith & Wesson revolver, meaning that identifying other contributors to the DNA mixtures on the firearms would not exculpate him; that he presented no evidence that the DNA on the front-passenger seatbelt latch was a mixture of profiles and not just the victim’s; and that he failed to allege or prove that there is a reasonable likelihood that the box of ammunition contains biological material. 7 But even if we assumed that testing the box of ammunition or retesting the other requested items of evidence with a newer STRmix or TrueAllele technique would reveal the identity of another person, other sufficient evidence independently supports Evans’s conviction. As summarized in the background section,
• Evans lured the victim into his vehicle, shot the victim in the head, stole the victim’s drugs and guns, and then put the victim’s body in the trunk of his vehicle;
• Evans sought help from Kee Kee, Davis, and Tolliver to transfer the victim’s body from the trunk of his car to a shed;
• Police located the victim’s body in a shed;
7 The trial court reached these same conclusions in its conclusions of law.
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• Police later found the murder weapon in the shed; and • Police also recovered two firearms that had belonged to the victim.
Additionally, pretrial DNA testing showed the following:
• The victim was the donor of the DNA profile obtained from the swab of Evans’s vehicle’s spare-tire rim, the scrapings from the trunk area, and the swabs of the red stains on the murder weapon;
• The DNA profile obtained from the murder weapon’s grip was at least a three-person mixture from which Evans could not be excluded; and
• The DNA profile obtained from the swabs of the right-front shoulder belt loop, the seat belt, and the latch from Evans’s car originated from the victim.
Even if we presumed that Evans’s requested DNA testing would produce results favorable to him, he could not show that such results would exculpate him in light of the other substantial evidence of his guilt. See Swearingen, 303 S.W.3d at 736; Wright v. State, No. 02-25-00001-CR, 2025 WL 2458623, at *3 (Tex. App.—Fort Worth Aug. 26, 2025, no pet.) (mem. op., not designated for publication); Lumsden v. State, No. 02-25-00021-CR, 2025 WL 2007329, at *4 (Tex. App.—Fort Worth July 17, 2025, pet. ref’d) (mem. op., not designated for publication). Accordingly, because Evans has failed to meet his burden to show by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through his fifth motion’s requested DNA testing, we overrule his first point.
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IV. Denial of Expert and Evidentiary Hearing In his second point, Evans contends that the trial court erred by denying his motion to appoint an expert witness and to hold an evidentiary hearing. Because the record does not reflect that Evans filed a motion requesting an expert or that it was brought to the trial court’s attention and because the trial court was not required to hold an evidentiary hearing, he has failed to show error.
Here, Evans claims that he “filed a motion requesting experts Dr. Spence and Susan Ryan” and that the motion was accompanied by “an application of subpoena of Fort[] Worth laboratory employee Dyna Osuna.” Evans does not provide a record citation showing (1) that he filed such motion or (2) that the trial court ruled on such motion, and after diligently searching the record, we have found none.8 In the affidavit that he attached to his fifth motion, he states only, “I cannot afford an expert or a lawyer.” He does not, however, request the appointment of an expert.
Moreover, even assuming that such motion had been filed, Evans has not shown that he brought the motion to the trial court’s attention. “A court has no duty to consider a motion not called to its attention,” and “[m]erely filing a motion with the district clerk does not prove [that] it was brought to the attention of the trial court because the clerk’s knowledge of the motion is not imputed to the trial court.” In re Ryan, No. 07-09-00183-CV, 2009 WL 1940911, at *2 (Tex. App.—Amarillo July 7,
8 As noted in a footnote in the State’s brief, Evans filed a letter in August 2025 inquiring as to the status of five motions that he claims to have filed in April 2025, but his letter does not mention a motion to appoint an expert witness.
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2009, orig. proceeding). Because Evans has failed to establish that he called the trial court’s attention to his alleged motion for the appointment of an expert, we cannot conclude that the trial court erred by failing to grant such motion. Cf. id. at *2 (holding that relator’s petition failed for want of proof that his motion requesting postconviction DNA testing and appointment of counsel were brought to the attention of the trial court and that it refused to act).
Furthermore, when a movant fails to satisfy the requirements of Chapter 64, he is not entitled to an expert. See Coleman v. State, No. 02-22-00089-CR, 2023 WL 2430027, at *3 (Tex. App.—Fort Worth Mar. 9, 2023, pet. ref’d) (mem. op., not designated for publication) (holding that because appellant had not satisfied the requirements of Chapter 64, the trial court did not err by denying the DNA motion and the expert motion); Uvalle v. State, Nos. 05-04-00508–00510-CR, 2005 WL 704813, at *3 (Tex. App.—Dallas Mar. 29, 2005, pets. ref’d, untimely filed) (not designated for publication) (holding that because the trial court correctly determined that appellant’s postconviction motion did not satisfy the requirements of Article 64.01, the trial court did not err by failing to appoint an expert to determine if any more sophisticated technology available today would exclude appellant as a contributor of the DNA sample).
Regarding Evans’s complaint that the trial court failed to hold an evidentiary hearing, his May 22, 2025 “Supplement Motion for Forensic DNA Testing Under Chapter 64 of the Code of Criminal Procedure” states under the chain-of custody
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heading, “Evans requests a[n e]videntiary hearing on the matter.” But because the trial court found that Evans had not met the requirements to obtain DNA testing under Chapter 64.03, the trial court was not required to hold a hearing. See generally Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (noting that nothing in Article 64.03 requires a hearing of any sort concerning the trial court’s determination of whether a defendant is entitled to DNA testing and contrasting that with Article 64.04, which provides for a hearing after a convicted person has obtained DNA testing under Article 64.03); Rivera v. State, 89 S.W.3d 55, 58–59 (Tex. Crim. App. 2002) (same).
Because Evans has failed to show presentment of a motion to appoint an expert and was not entitled to an evidentiary hearing, we overrule his second point.
V. Conclusion
Having overruled Evans’s two points, we affirm the trial court’s “Order Denying Defendant’s Fifth Motion for Post[c]onviction Forensic DNA Testing.”
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 13, 2026