Opinion
No. 05-02-01408-CR.
Opinion issued February 4, 2004. DO NOT PUBLISH, Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F89-99038-TL. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Tyrone Day appeals the trial court's denial of his motion for post-conviction DNA testing. In a single issue, appellant argues the trial court erred in denying his motion because a reasonable probability exists that DNA tests would prove his innocence. We affirm the trial court's order denying DNA testing. On October 24, 1989, appellant grabbed the female complainant and took her to a vacant apartment in Dallas where appellant and two other men raped her. The men then fled, and complainant, who is deaf, ran down the street. Complainant communicated to a witness that she had been raped, and police responded to the scene. Upon the officers' arrival, complainant pointed out appellant, who was walking down the street, as one of the men who had raped her. The officers arrested appellant. In 1990, appellant pled guilty to sexual assault and, pursuant to a plea bargain agreement, received a sentence of forty years' confinement. Appellant did not appeal his conviction. In July 2001, appellant filed a pro se motion for post-conviction DNA testing. In August, 2001, appellant filed another motion with the assistance of appointed counsel in which he tracked the language of chapter 64 of the code of criminal procedure. The motion requested "testing of evidence containing biological material that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense but was not previously subjected to DNA testing because DNA testing was not available or available but not technologically capable of providing probative results, or through no fault of the movant, for reasons that are of a nature such that the interests of justice require DNA testing." The State filed a response in which it urged the trial court to dismiss appellant's motion for lack of specificity or deny the motion for failing to establish that exculpatory DNA results would prove his innocence or to show that identity was in issue in appellant's case. The trial court ultimately denied appellant's motion, and this appeal followed. In a single issue, appellant argues the trial court erred in denying his motion because a reasonable probability exists that DNA tests would prove his innocence. Specifically, appellant posits that a test showing DNA from three men and not appellant would show that three other men committed the underlying sexual assault and he was not involved. In this case, the trial court did not specify its reasons for denying appellant's motion. Initially, we question whether we need address this ground for the trial court's order in light of appellant's failure to present argument concerning whether evidence still exists and is in a condition making DNA testing possible or whether identity was an issue in the case. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2004). Nevertheless, 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 v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.); Torres v. State, 104 S.W.3d 638, 640 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The term "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Eubanks, 113 S.W.3d at 565. A trial court does not err in denying post-conviction DNA testing where, at most, exculpatory DNA tests would "merely muddy the waters." Eubanks, 113 S.W.3d at 565 (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002). We conclude appellant did not meet his burden for requesting post-conviction DNA testing in the trial court. Appellant asks us to suppose that, if DNA testing showed the presence of three other parties, this would contradict the complainant's identification of appellant as one of the three men who raped her. However, the convicted person must do more than simply ask for DNA testing so that he might be able to raise an argument. Eubanks 113 S.W.3d at 566 (emphasis in original). The prospect of casting doubt is clearly not enough to meet the burden of proof to show a reasonable probability of one's innocence. Id. Because we conclude appellant has not shown, as article 64.03 requires, that a reasonable probability exists that exculpatory DNA tests would prove his innocence, we overrule appellant's sole issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.