Opinion
No. 05-06-00322-CR.
Opinion issued January 5, 2007. DO NOT PUBLISH.
On Appeal from the 203rd District Court Dallas County, Texas Trial Court Cause No. F81-01155-QP. AFFIRMED.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Raymond Garcia Almaguer appeals the trial court's denial of his motion for post-conviction DNA testing. In two points of error, appellant argues the trial court improperly found that identity was not an issue and did not apply the correct evidentiary standard in denying his motion. We affirm the trial court's order. The female complainant in the underlying case, eighteen at the time of trial, testified that, in the early morning hours of January 25, 1981, she was parked with her boyfriend at Mountain Creek Lake. The passenger side window was rolled half way down, and appellant approached the car and stuck a rifle in the window. In response to something appellant said, complainant's boyfriend got out of the car, and complainant followed him. Appellant put complainant's boyfriend in the trunk of the boyfriend's car and forced complainant into the trunk of appellant's car. Appellant drove away and stopped at what appeared to be the opposite side of the lake where he held complainant at gunpoint and ordered her out of the trunk. Appellant forced complainant into the back seat of the car and ordered her to take off her clothes. Appellant pushed complainant's mouth down on his penis and then changed complainant's position and put his penis inside her vagina. After about fifteen minutes, appellant sat back down in the seat and again forced complainant to put her mouth on his penis. At some point, complainant realized appellant was asleep because he was snoring. Complainant grabbed the gun, and appellant woke up. Complainant told appellant to get out of the car or she would shoot him, but appellant told her not to be stupid and to give him the gun. Complainant was unable to bring herself to shoot appellant, and he took the gun away from her. Appellant twice more got on top of complainant and placed his penis inside her vagina. Appellant then got out of the car and got dressed. Appellant, still armed with a pistol, discussed killing complainant or letting her walk away. Ultimately, appellant had complainant get back in the car and told her to keep her head down as he drove away. Meanwhile, complainant's boyfriend escaped from the trunk of his car and called police. Based on the description of appellant's car, Dallas police officer Allen Adamcik stopped appellant's car. Complainant felt the car stop and put her head up and saw a police car behind appellant's car. Adamcik approached appellant's car and asked how everything was. Appellant replied that he and his "wife were just coming back from Grand Prairie." Complainant looked at Adamcik and "shook her head no, like, 'I'm not his wife. Just help me.'" Adamcik asked appellant if complainant was his wife, and he said she was. However, complainant's response prompted Adamcik to pull his gun and point it at appellant and ask appellant to step out of the car. Appellant said, "Yes, sir," but "gunned [the car] and took off." Appellant led police on a car chase that ended when appellant pulled into his driveway. As soon as the car came to a stop, complainant jumped out, and police subdued appellant. Police recovered both a rifle and a pistol from appellant's car. When appellant was booked in to jail, police recovered complainant's driver's license from "in between his billfold." Appellant was subsequently charged with and convicted of aggravated sexual assault. In August 2005, appellant filed a motion for post-conviction DNA testing. Following a hearing, the trial court denied appellant's motion, finding that identity is not, and was not, an issue. This appeal followed. In his first issue, appellant argues the trial court erred in finding that identity was not an issue. A convicting court may order forensic DNA testing only if, among other things, identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2006). In addition, a convicted person seeking post-conviction DNA testing must also establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2006); Smith v. State, 165 S.W.3d 361, 364 (Tex.Crim.App. 2005). In reviewing application of law to fact issues, including the ultimate question of whether the trial court was required to grant a motion for post-conviction DNA testing, we apply a de novo standard of review. See Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App. 2006); Bates v. State, 177 S.W.3d 451, 453 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Here, appellant was stopped by Adamcik after complainant's boyfriend gave a description of appellant's car. When stopped, appellant had complainant in the front seat and attempted to convince Adamcik she was his wife, which complainant denied. Appellant then led police on a chase which ended at appellant's house where complainant jumped out of the car and police subdued appellant and arrested him. Police later recovered from appellant's car the pistol and rifle described by complainant and recovered complainant's driver's license from appellant's billfold. Appellant argues that the fact complainant was with him at the time of his arrest was not evidence that he forcibly raped her. Further, appellant points out that complainant had trouble recognizing appellant at trial, though she reiterated her testimony that she had no doubt that a picture of appellant taken near the time of arrest depicted the man who abducted her. While the testimony cited by appellant suggests appellant's appearance changed dramatically between the night of the assault and the time of trial, we cannot conclude this testimony places appellant's identity at issue. Only appellant was with complainant at the time appellant was arrested, complainant testified only appellant abducted her and raped her, and at no time was any evidence presented that someone other than appellant committed the charged offense. Because identity was not an issue in the underlying case, the trial court did not err in denying appellant's motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2006). We overrule appellant's first point of error. In his second error, appellant argues the trial court erred in applying an incorrect evidentiary standard in denying his motion for post-conviction DNA testing. In making this argument, appellant points out that article 64.03 no longer contains any reference to a "reasonable probability" that a person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and requires proof, by a preponderance of the evidence, that he would not have been convicted if exculpatory results had been obtained. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2006). Appellant argues the trial court set out no analysis showing the basis for its decision to deny appellant's motion, nor is there anything to show how the trial court weighed the evidence. Accordingly, appellant argues, if the DNA evidence had been exculpatory, "the testimony of the complainant as to what occurred would have been highly questionable." As appellant points out, the record is silent as to the trial court's reasoning in denying appellant's motion. However, the trial court's order specifically stated its finding that appellant had "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available." Thus, the trial court's order reflects the trial court's application of the correct standard. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2006). Second, the record shows appellant was with complainant in his car and was taken directly from the scene of the arrest to jail where he was booked in and charged with aggravated sexual assault. Thus, no amount of exculpatory DNA evidence could disprove that appellant was with the complainant. Further, the presence of DNA other than appellant's would not negate complainant's testimony that appellant forced complainant's mouth down on his penis and repeatedly placed his penis inside her vagina against her will. Under these circumstances, we conclude the trial court correctly concluded that appellant had "failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been available." See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2006). We overrule appellant's second point of error. We affirm the trial court's judgment.