Thomas, J., dissenting
district attorney consented to test some of the items outside of the Chapter 64 framework, but he otherwise opposed Reed’s request. The trial court denied the motion, finding that Reed had not established two necessary elements for Chapter 64 testing: (1) that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” Art. 64.03(a)(2)(A); and (2) that his Chapter 64 motion was “not made to unreasonably delay the execution of sentence or administration of justice.” Art. 64.03(a)(2)(B). Reed appealed, and the CCA remanded for the trial court to address the other elements of the Chapter 64 rubric. After making supplemental findings, the trial court again denied Reed’s motion, and Reed again appealed.
In April 2017, the CCA issued an opinion affirming the trial court. First, the CCA held that the record supported the trial court’s finding that many of the items had not “been subjected to a chain of custody sufficient to establish that [they had] not been substituted, tampered with, replaced, or altered in any material respect.” Art. 64.03(a)(1)(A)(ii); see Reed v. State, 541 S. W. 3d 759, 769–770. Second, it held that Reed had not shown “a reasonable likelihood” that many of the items “contain[ed] biological material suitable for DNA testing.” Art. 64.03(a)(1)(B); see 541 S. W. 3d, at 772. Third, addressing only the items that survived the previous two holdings, the CCA held that Reed had not established that exculpatory results from DNA testing of those items would have prevented his conviction. See id., at 773–777. Finally, the CCA held that Reed had failed to establish that his Chapter 64 motion was not made for purposes of delay. See id., at 777–780. The CCA noted that “Chapter 64 had existed with only slight variations for over thirteen years at the time Reed filed his motion,” and that Reed’s motion was suspiciously filed “on the same day the judge heard the State’s motion to set an execution date.” Id., at 779.
