Appeal from the 239th District Court Brazoria County, Texas
Trial Court Cause No. 44301-1
consists of Justices Christopher, Donovan, and Jewell.
se appellant Widener Michael Weems appeals the trial
court's order denying his post-conviction motion for DNA
testing. We affirm in part and dismiss in part.
Factual and Procedural Background
factual background in this case was set forth by this Court
on direct appeal as follows:
. . . H.P. Weems reported his father, Holmes Weems, missing.
Shortly thereafter, investigators discovered Holmes
Weems' vandalized and abandoned vehicle in a field. H.P.
Weems gave investigators information that if anything bad had
happened to his father, it would be at the hands of the Weems
brothers, specifically appellant. Thereafter, investigators
questioned appellant's wife, Emily Weems. Mrs. Weems told
investigators appellant and his brother were responsible for
murdering her father. After receiving her statement, an
investigator allegedly drew up a probable cause affidavit and
obtained a warrant for appellant's arrest. Thereafter,
appellant was arrested and brought to the Brazoria County
Sheriff's Department. That night, after he received and
waived his Miranda rights, appellant made a written
confession and directed officers to the location of Holmes
Weems' body. The next morning, appellant accompanied
officers to the exact location of the body, and, upon his
return to the Sheriff's office, gave a videotaped
statement about his involvement in the murder.
Weems v. State, 167 S.W.3d 350, 354 (Tex.
App.-Houston [14th Dist.] 2005, pet. ref'd). A jury found
appellant guilty of the offense of murder, and assessed
punishment at life imprisonment. This Court affirmed
appellant's conviction on direct appeal. Id. The
Texas Court of Criminal Appeals refused discretionary review,
and the United States Supreme Court denied his petition for
writ of certiorari. Weems v. Texas, 546 U.S. 1132
the next ten years, appellant filed numerous petitions for
writ of habeas corpus, in federal and state courts, all of
which were denied. On December 7, 2016, appellant filed a
request for appointment of counsel for DNA testing on the
"fireplace tool" pursuant to Chapter 64 of the Code
of Criminal Procedure, which was opposed by the
State. On December 20, 2016, the trial court
denied appellant's request as follows:
On this day came to be heard the Defendant's Request for
Appointment of Counsel for DNA Testing. The Court takes
judicial notice of the Court's File. Having reviewed the
record, the Defendant's Motion and the State's Reply,
the Court Finds the Defendant has failed to show reasonable
grounds for the appointment of counsel under Article 64.01(c)
of the Code of Criminal Procedure. The Court DENIES the
Defendant's Request for Appointment of Counsel for DNA
appealed the denial of his request to this Court, which we
dismissed for lack of jurisdiction. Weems v. State,
No. 14-17-00021-CR, 2017 WL 1750129, at *1 (Tex. App.-Houston
[14th Dist.] May 4, 2017, no pet.) (citing Gutierrez v.
State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010)).
April 5, 2017, appellant filed a motion for DNA testing,
which was opposed by the State. On May 22, 2017, the trial
court denied appellant's motion as follows:
On this day came to be heard the Applicant's Motion for
DNA Testing. Having reviewed the Court's file and the
affidavit and document submitted, the Court Finds that the
Applicant has failed to meet his burden under Art. 64.03 of
the Code of Criminal Procedure to show, by a preponderance of
the evidence, that he would not have been convicted if
exculpatory results had been obtained through the DNA ...