Opinion
No. 05-06-01547-CR
Opinion issued June 19, 2007. Do Not Publish. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F91-00938-TI.
OPINION
Appellant Cory Robert Sandefer was convicted by a jury of aggravated sexual assault and sentenced to twenty-five years in the penitentiary on September 12, 1991. Appellant now appeals the trial court's October 6, 2006 order denying his post-conviction motion for forensic DNA testing. Appellant presents a sole issue: whether the trial court erred in denying his post-conviction motion for DNA testing. For reasons that follow, we resolve appellant's issue against him and affirm the trial court's order.
Specifically, appellant asks "whether the trial court erred in denying appellant's motion for DNA testing because biological evidence does still exist in the State's custody which was not previously subjected to DNA testing through no fault of the appellant, because identity was and is an issue, because appellant would not have been convicted if exculpatory results had been obtained through DNA testing, and for reasons that are of a nature such that the interests of justice require DNA testing."
Procedural Background
In September 1991, a jury found Sandefer guilty of aggravated sexual assault; appellant was sentenced to 25 years' confinement in the penitentiary. Sandefer appealed; this court affirmed his conviction. Sandefer v. State, No. 05-91-01403-CR (Tex.App.-Dallas Mar. 22, 1993, pet. ref'd) (not designated for publication). On February 3, 2006, appellant, through appointed counsel, filed a post-conviction motion for DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The State responded that Sandefer did not meet the requirements of chapter 64 because he could not establish he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon 2006). On October 6, 2006, the trial court denied Sandefer's motion. This appeal followed.Statutory Requirements
Chapter 64 of the code of criminal procedure governs motions for forensic DNA testing. Article 64.03 sets out the requirements for the tests. Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). A trial court may order forensic DNA testing only if, inter alia, the court finds that (1) evidence still exists and is in a condition making testing possible, and (2) identity was or is an issue in the case. Id. (citing Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i), (a)(1)(B) (Vernon 2003)). Article 64.03 also provides the convict must establish by a preponderance of the evidence that "a reasonable probability exists that he `would not have been prosecuted or 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. (citing Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A), (B)) (Vernon 2006).Motion for DNA Testing
Sandefer's motion seeks DNA testing of "biological material secured in relation to" this case that was in possession of the State during the trial of the offense. In response to Sandefer's motion, the State contacted the Southwestern Institute of Forensic Sciences (SWIFS), the Dallas Police Department (DPD), and the Dallas County District Clerk's Office in an effort to locate biological evidence in this case. The only agency advising it had biological evidence was SWIFS.Standard of Review
In the absence of a hearing on the motion, we review de novo a trial court's determination under chapter 64. See Smith v. State, 165 S.W.3d 361, 363 (Tex.Crim.App. 2005). In reviewing a trial court's decision on post-conviction DNA testing, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have proven innocence is an application-of-law-to-fact question that is reviewed de novo. Eubanks, 113 S.W.3d at 565 (citing Torres v. State, 104 S.W.3d 638, 640 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002)).Factual Background
The facts, as recited in this court's opinion on direct appeal, are as follows: On September 1, 1990, Maria Christina Roman worked as a maid at the Double Tree Hotel in Dallas, Texas. She testified that a man, who she later identified as Sandefer, pushed her into a linen closet at the hotel, threatened her with a knife, and sexually assaulted her. Sandefer contended he was in Florida at the time of the offense. He introduced affidavits showing he was registered at three Fort Lauderdale hotels from August 29, 1990 to September 3, 1990. In rebuttal, the State called Carmen Gross, Sandefer's former girlfriend. Gross testified she found a hotel brochure and another item, unidentified in the briefs and record in this case, in Sandefer's briefcase. The trial court admitted these two pieces of evidence as exhibits twenty and twenty-one over Sandefer's relevancy objections. Gross also testified she found three hotel keys in Sandefer's coat pocket. The trial court admitted these three keys as exhibits twenty-two through twenty-four over Sandefer's relevancy objections. The State called Ed Cunningham, the director of security for the Double Tree Hotel in Dallas. He identified State's exhibit twenty-two as a key from the Double Tree Hotel. Cunningham also testified that, based upon the hotel's computer records, Sandefer was registered at the Double Tree Hotel in Dallas on September 7-8, 1990. Sandefer objected to Cunningham's testimony on the basis the State did not lay the proper predicate for the business records exception to the hearsay rule. The trial court overruled Sandefer's objection. See Sandefer, No. 05-91-01403-CR at 2. We recite additional facts deemed relevant to the post-conviction motion. Sandefer pushed Roman into the closet, forced her to the floor, pointed a knife at her neck, lifted her dress, and attempted to pull down her pantyhose and underwear. However, by holding her underwear up, Roman prevented Sandefer from pulling her underwear down. Sandefer placed his hand inside Roman's underwear, and penetrated her vagina with his fingers. By pushing Sandefer, Roman was able to get to her feet. The two struggled. Sandefer cut Roman's hand with a knife. Sandefer grabbed Roman's hair, forced her to her knees, and rubbed his penis on her face. Sandefer tried to force Roman to perform oral sex; she resisted. When Roman heard the elevator, she told Sandefer her supervisor was coming. Sandefer fled. In January 1991, Roman viewed a six-photograph spread which included Sandefer's photograph; however, Roman was unable to identify her attacker. Around the first of February 1991 Roman viewed a live lineup. Sandefer was the second person in the lineup. When Sandefer walked into the room, Roman started crying. Pursuant to instructions, however, Roman waited until all individuals in the lineup had entered the room. She then positively identified Sandefer as her attacker. The police officer conducting the lineup had to calm Roman down after her identification. Roman was still shaking and crying for a good fifteen to twenty minutes after it was over.Application
Responding to the State's request, SWIFS advised that on September 4, 1990, it received seven items of evidence in this case: a vaginal swab, a vaginal smear, a blood sample, pubic hair combings, a pubic hair standard, hair from blanket, and clothing. The pubic hair standard, portions of the clothing, and slides created from the pubic hair combings, the pubic hair standard, the hair from the blanket, and the clothing were located and remain in SWIFS's storage areas. Also located was the packaging from the pubic hair combings; however, no evidence was observed in the packaging. The vaginal swab, vaginal smear, blood sample, hair from blanket and clothing were not located in the laboratory's storage area. Attached to the State's response was the serologist's September 4, 1990 notes. Those notes indicate the clothing cuttings and related slides in this case were taken from the crotch area of the victim's underwear and pantyhose, which were positive for acid phosphatase. Also attached is SWIFS's September 19, 1990 report. That report reflects acid phosphatase, suggestive of seminal fluid, was detected in the panties and pantyhose, but was not detected in the vaginal swab or the remainder of the clothing. It also reflects spermatozoa was not detected on the vaginal smear. There was no evidence at trial that appellant's penis penetrated Roman's vagina. The seminal fluid stains were not mentioned at trial and were not a basis for Sandefer's conviction. There is no evidence from which the court could conclude the seminal stains were Sandefer's. Under the facts in this case, the seminal fluid stains would be irrelevant. Neither the absence of Sandefer's DNA nor the presence of a third-party's DNA on the items would be exculpatory. We conclude appellant did not meet his burden required to obtain DNA testing in the trial court. If genetic markers in the seminal fluid reflected it was from a third party, that evidence would not exculpate appellant under the facts of this case. At most, it might create doubt. The law is clear, however, that casting doubt is not enough to meet the burden of proof to show a reasonable probability of one's innocence. See Eubanks, 113 S.W.3d at 566. The legislature required more and said that one cannot merely ask to develop test results so that he can cast doubt on the conviction. After all, that would simply "muddy the waters." Id. at 566 (citing Kutzner v. State, 75 S.W.3d 427, 439 n. 27 (Tex.Crim.App. 2002)). Appellant presented alibi evidence at trial. The jury rejected his defense. Appellant testified at trial and his credibility was successfully attacked. We also note the following exchange between the prosecutor and appellant during the punishment phase of trial during which appellant seems to admit lying earlier.Q. [STATE]: You say that there are crimes that you have committed that you are guilty of?
A. [DEFENDANT]: Well, as, I meant as far as lying, sir.
Q. [STATE]: Lying when?
A. [DEFENDANT]: Lying and things to [sic] of that nature as far as on me hotel record and things of that nature.Applying the above legal principles to the facts set out above, we conclude appellant has not shown, as the statute requires, that a reasonable probability exists that exculpatory DNA tests would prove his innocence. Accordingly, we decline to disturb the trial court's determination. See Eubanks, 113 S.W.3d at 566 (citing Rivera, 89 S.W.3d at 59; Torres, 104 S.W.3d at 641; and Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (parentheticals omitted)). We resolve appellant's sole issue against him. We affirm.