Opinion
No. 05-07-00117-CR
Opinion issued June 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F91-70574-SV.
OPINION ON REMAND
Appellant Glenn Rydel Armstrong was convicted by a jury in 1993 of aggravated sexual assault and sentenced to ninety-nine years' imprisonment. His conviction was affirmed on appeal. See Armstrong v. State, No. 05-92-01851-CR, 1996 WL 682433 (Tex. App.-Dallas Nov. 26, 1996, no pet.) (per curiam) (not designated for publication). In 2006, appellant filed a post-conviction motion for DNA testing with an attached "Declaration of Movant." The trial court denied the motion. Appellant appealed. This Court affirmed the trial court's order denying appellant's motion for post-conviction DNA testing. See Armstrong v. State, No. 05-07-00117-CR, 2007 WL 4305462 (Tex. App.-Dallas Dec. 11, 2007), vacated, PD-0811-08, 2009 WL 1814476 (Tex. Crim. App. June 24, 2009). Appellant filed a petition for discretionary review with the court of criminal appeals. The Texas Court of Criminal Appeals vacated our judgment and remanded the case back to us for reconsideration in light of Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009). See Armstrong, 2009 WL 1814476, *1. Both the State and appellant were allowed to submit either a supplemental brief or a written waiver of further briefing. Appellant filed a supplemental brief; the State filed a written waiver of further briefing. After reconsideration of this case in light of Esparza, we reverse the trial court's judgment and remand to the trial court for proceedings consistent with this opinion. The only issue before us is whether appellant established by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been obtained through DNA testing. In Esparza, the court of criminal appeals considered the same issue now before us. In Esparza, the court concluded the Houston, Fourteenth, court of appeals had erred in its original opinion by concluding Esparza 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. Esparza, 282 S.W.3d at 922. The court specifically held that a finding "that there is sufficient evidence, besides DNA evidence, to establish guilt" conflicts with Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007). In Esparza, the court held that eye-witness identification of Esparza "is of no consequence in considering whether Esparza has established that, by a preponderance of the evidence, exculpatory DNA tests would prove his innocence." Esparza, 282 S.W.3d at 922. The court went on to say "[i]n sexual assault cases like this, any overwhelming eye-witness identification and strong circumstantial evidence . . . supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exculpatory DNA evidence would prove his innocence under Article 64.03(a)(2)(A)." Id. (Emphasis supplied). We now apply the Esparza analysis to the case before us. In doing so, we characterize as "inconsequential" the overwhelming eye-witness identification and strong circumstantial evidence supporting guilt in this case in assessing whether appellant has "establishe[d] by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing." See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (a)(2)(A) (Vernon Supp. 2009) (Emphasis added). Excluding such "inconsequential" evidence from our consideration in this case, we must necessarily conclude appellant has shown a reasonable probability that he would not have been convicted if exculpatory results had been obtained through DNA testing and presented at his trial. Consequently, we conclude the trial court erred by denying the motion for DNA testing. We sustain appellant's issue. We reverse the trial court's order denying appellant's post-conviction motion for DNA testing and remand this case to the trial court for proceedings consistent with this opinion.
Although this Court held identity was an issue in the case, we further held exculpatory DNA results excluding appellant would not have resulted in a different outcome because there was sufficient other competent evidence connecting appellant to the offense. See Armstrong, 05-92-01851-CR, 1996 WL 682433, at *1.
Article 64.03 of the Texas Code of Criminal Procedure requires, inter alia, a finding that the "convicted person establish by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing" before a convicting court may order forensic DNA testing under chapter 64. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2009).
In Blacklock, the court of criminal appeals held that Blacklock's factual allegations in his motion were sufficient to raise the issue of identity. Because Blacklock had sought testing of biological evidence left by a lone assailant, the court concluded that "exculpatory DNA test results, excluding [Blacklock] as the donor of this material, would establish [his] innocence." Further, for purposes of construing Blacklock's motion, the court found it irrelevant that the victim knew Blacklock and identified him as her attacker. See Blacklock, 235 S.W.3d at 233.