Opinion
14-21-00405-CR
08-18-2022
BOBBY DEAN COKER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 699220
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
MEMORANDUM OPINION
Tracy Christopher Chief Justice
We consider two issues in this appeal: the first is whether the trial court erred by disregarding appellant's pro se motion for DNA testing, and the second is whether the trial court erred by denying a subsequent motion for DNA testing that was filed by appellant's counsel. We overrule the first issue because the record does not show that any error was preserved, and we overrule the second issue because the trial court had a substantial basis for finding that the requirements for DNA testing had not been satisfied.
BACKGROUND
This case arises out of the sexual assault of appellant's wife in 1995. At the time of the offense, appellant and his wife were separated and living in different states, but she visited him on one occasion so that he could see their children. The visit led to an argument and then to the sexual assault, which was recounted as follows in a probable cause affidavit:
[Appellant] got upset and began to beat [his wife] with his hands and then [appellant] dragged her to the bedroom and tore off her clothes. [Appellant] then pushed [his wife] on the bed and forced his penis into her vagina. [The wife] told affiant that she asked [appellant] to stop and tried to get away but she could not get away. [Appellant] then ejaculated on [his wife]. [The wife] told affiant that when [appellant] finished sexually assaulting her, she got up and ran out of the house and went down the street and called the police.
Appellant was charged with "unlawfully intentionally and knowingly caus[ing] the penetration of the FEMALE SEXUAL ORGAN of [his wife] by placing HIS SEXUAL ORGAN in the FEMALE SEXUAL ORGAN of [his wife], without the consent of [his wife]," and of "compel[ing] [his wife] to submit and participate by the use of physical force and violence."
Appellant pleaded guilty to the charge of sexual assault, and he was sentenced to ten years' deferred adjudication. The State subsequently moved to adjudicate appellant's guilt, based on allegations that appellant had violated the terms of his community supervision. Appellant pleaded true to the allegations, and his sentencing was postponed for the preparation of a Pre-Sentence Investigation ("PSI").
The PSI contained more facts relating to the assault. In a summary of the police offense report, the PSI stated that appellant became angry with his wife and accused her of seeing other men during the period of their separation. It stated that appellant hit his wife several times in the head with his fists and that he slammed her against a dishwasher. He poured beer on his wife and kicked her in the crotch, causing her to fall. He grabbed her by the hair, dragged her to the bedroom, and ripped off her overalls. He squeezed his wife's throat, placed a pillow over her face, and told her that he wished she was dead. He sexually assaulted her over her cries and pleas for mercy. When the wife made contact with the police, she had a black eye, a cut to her face, and bruises all over her body.
Appellant gave a written statement to be included in the PSI, which is reproduced here in its original, unedited form:
My wife & I were struggeling financialy in Pittsburg & could not make it, so I moved to Houston to get a job & get us established while she finished he schooling to end in August of 95. She started drinking & partying alot & leaving our children to finn for them selves, she was having sex with my friends & enemyes, my mother & sister caught her & told me but I refused to believe it. My son cought her in bed with his uncle & he told me I was very hurt she would deny it & I believed her because I wanted to, she had given our the 10 yr old son marajuana & told him it was cool. I was taking care of her financial needs. this went on for about 8 months she admitted to being unfaithful & we cried together on the phone, I took the blame for it & forgave her. She agreed to quit school then & come home & no more drinking, when she showed up in Houston drunk & argumentative she broke my heart and made me cry. When I cried she laughed & called me week & said she was strong & proud of it. The 8 months of hurt turned into uncontrolable rage & I slapped her & poured her beer on her & kiked her. I jerked her by her overalls & they ripped off in my hands. After we cooled off she took her panties off layed on the bed & said she wanted me to caress her like I used to. Again I saw hope & fell for it. During the sex, she started to manipulate me, so I pulled out of her & told her I hate her & wish she was dead. She went to HPD & filed rape charges on me.
In an interview, which was also summarized in the PSI, appellant admitted to hitting his wife, but he insisted that the intercourse was consensual. He said that he pleaded guilty because he misunderstood the nature of the offense, thinking it only meant that "he and his wife had sex after he hit her."
According to the PSI, appellant became "very argumentative" during this interview, and he declared that the trial court "can just give me ninety-nine years" because "I don't really care anyway."
In 1999, the trial court formally sentenced appellant to ninety-nine years' imprisonment. Appellant brought an appeal to our court, but we dismissed the appeal for want of jurisdiction. See Coker v. State, No. 14-99-00632-CR, 2000 WL 991748, at *2 (Tex. App.-Houston [14th Dist.] July 20, 2000, no pet.) (not designated for publication).
In 2012, appellant filed a motion for DNA testing. The record does not contain a copy of this motion or its ruling, but the record affirmatively reflects that the rape kit from the wife's sexual assault was sent to an out of state laboratory in 2013. The rape kit consisted of vaginal swabs and a known blood sample from the wife, but no known samples from appellant. A sperm fraction was obtained from the vaginal swabs, and the DNA profile of its male contributor was returned to local authorities for comparative analysis.
In 2014, an analyst at the Houston Forensic Science Center reviewed the report from the out of state laboratory and entered the DNA profile collected from the sperm fraction into the Combined DNA Index System ("CODIS"). The analyst also "requested that two buccal swabs from the suspect(s) be submitted for DNA comparison."
The record does not reveal that any buccal swabs were ever collected from appellant, as the analyst had requested. Instead, shortly after the analyst filed her report, the Texas Department of Public Safety ran a routine DNA database search and identified a match between an existing CODIS sample and the DNA profile obtained by the out of state laboratory. Appellant was identified as the source of that match. Based on the match, the trial court entered an order in 2015 denying additional DNA testing, and finding that appellant had failed to show by a preponderance of the evidence that any exculpatory results would be obtained by such testing.
Despite that ruling, appellant filed a pro se motion for additional DNA testing in 2020. Appellant mentioned in this motion that no buccal swabs had been collected from him, as the analyst had earlier requested.
The trial court did not rule on appellant's pro se motion. Instead, it appointed a public defender to represent appellant.
Through the assistance of the public defender, appellant filed another motion for DNA testing in 2021. In this other motion, appellant specifically sought testing of his wife's clothing, which had been collected at the time of the sexual assault. He did not seek testing of her rape kit, which had previously been tested. Appellant argued that the clothing should be tested because, according to the probable cause affidavit, his wife alleged that he had ejaculated on her body.
The State opposed appellant's request. The State argued that appellant could not make the required showing that identity was an issue in his case because appellant admitted that he had intercourse with his wife, and he claimed that the intercourse was consensual. The State also argued that testing of the wife's clothing would not result in exculpatory evidence because, even if appellant were excluded as a contributor to a DNA sample collected from the clothing, he was still inculpated by the sperm fraction collected from his wife's vaginal swabs.
Without conducting a hearing, the trial court entered an order denying appellant's later-filed motion for DNA testing. Appellant now appeals from this order. See Tex. Code Crim. Proc. art. 64.05.
ANALYSIS
Appellant asserts in his first issue that the trial court erred by "disregarding" his pro se motion for additional DNA testing of the rape kit. Appellant acknowledges that he did not obtain an adverse ruling on this pro se motion. The only adverse ruling that appellant received was the trial court's denial of the other motion filed by counsel, which requested testing of the wife's clothing. In the absence of an adverse ruling, a complaint is not preserved for appellate review unless the record shows that the trial court "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." See Tex. R. App. P. 33.1(a)(2)(B). Appellant has made no argument or showing that the trial court refused to rule on his pro se motion. Accordingly, we conclude that any error relating to such motion has not been preserved.
Appellant argues in his next issue that the trial court erred by denying his other motion for DNA testing, which had been filed with the assistance of counsel. By obtaining an adverse ruling on this motion, appellant preserved this issue for appellate review. See Tex. R. App. P. 33.1(a)(2)(A).
To be entitled to DNA testing, appellant was required to establish by a preponderance of the evidence that he would not have been convicted of sexual assault if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. art. 64.03(a)(2)(A). Furthermore, the trial court could only order DNA testing if it found, among other things, that "identity was or is an issue in the case." See Tex. Code Crim. Proc. art. 64.03(a)(1)(C).
The trial court decided that these statutory requirements for DNA testing had not been satisfied. We review that decision under a bifurcated standard of review, affording almost total deference to a trial court's determination of historical facts that are supported by the record, as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor, and considering de novo purely legal questions and other mixed questions of law and fact not turning on an evaluation of credibility and demeanor. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
There was substantial evidence that identity was not at issue in this case. The probable cause affidavit reflected that the complainant of the sexual assault was appellant's wife, and that she affirmatively identified appellant as her assailant. Appellant likewise admitted in his written statement and in his interview, which was summarized in the PSI, that he had sexual intercourse with his wife, which he asserted was consensual. Based on this evidence, the trial court could have reasonably concluded that the identity requirement for DNA testing had not been satisfied.
Appellant argues in his brief that identity was an issue because he filed an affidavit in which he denied having raped his wife. This argument is unpersuasive because appellant never denied that he had sexual intercourse with his wife. Also, he never raised any affirmative facts showing that a third person sexually assaulted his wife. Without such facts, appellant merely speculates that identity is an issue, which is insufficient to obtain DNA testing. See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002) ("Chapter 64 requires that identity 'was or is' an issue, not that future DNA testing could raise the issue.").
Even if appellant could overcome the identity issue, the trial court had a substantial basis for believing that appellant did not prove by a preponderance of the evidence that DNA testing would yield exculpatory results. The record showed that only a single male DNA profile was obtained from the wife's vaginal swab, and that the profile belonged to appellant. If the DNA profile of another male was found on the wife's clothing, its existence would not establish appellant's innocence. Cf. Ex parte Gutierrez, 337 S.W.3d 883, 900-01 (Tex. Crim. App. 2011) (concluding there was no reason to test the fingernail scrapings of a murder victim because the results would not establish the innocence of the convicted person).
For all of these reasons, we conclude that the trial court did not err by denying appellant's motion for DNA testing of his wife's clothing.
CONCLUSION
The trial court's order denying the motion for DNA testing is affirmed.