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holding that postconviction DNA tests were unfavorable to appellant under article 64.04 of Code of Criminal Procedure where probability that someone other than appellant was contributor of DNA on epithelial fraction exceeded world's population, although probability on sperm fraction was significantly lower
Summary of this case from Small v. StateOpinion
Nos. 05-04-01346-CR, 05-04-01347-CR
Opinion Filed August 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F87-79159-T; F87-79277-T. Affirmed.
Before Justices MORRIS, MOSELEY, and RICHTER.
OPINION
James Robinson appeals the trial court's finding that the results of post-conviction DNA testing were not favorable to him. After conducting a de novo review, we affirm the trial court's findings. Robinson was convicted in 1987 of aggravated sexual assault of two victims and sentenced to life in prison. The trial court granted Robinson's pro se motion for post-conviction DNA testing in both cases and ordered testing of certain biological evidence. When the results were available, the trial court held a hearing to "make a finding as to whether the results are favorable to the convicted person." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16, 16 (codified at Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp. 2005)). The trial court found the results were not favorable to Robinson. We review the trial court's findings under article 64.04 de novo. Booker v. State, 155 S.W.3d 259, 266 (Tex.App.-Dallas 2004, no pet.). Test results are favorable if they show a reasonable probability that the convicted person is innocent. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). DNA was extracted from semen stains on the vaginal swabs of both victims by a two-step process. The first step recovers DNA from non-sperm cells usually associated with the victim (epithelial fraction). The second step recovers DNA from any sperm cells (sperm fraction). The DNA profile of the epithelial fraction of one of the victims indicated a mixture of DNA. The victim was identified as the source of the major component of this profile. Robinson could not be excluded as a contributor to the DNA in this sample. The probability of another person being a contributor to this fraction was 1 in 1274 for Caucasians, 1 in 1033 for Blacks, and 1 in 1519 for Hispanics. Robinson argues this result is favorable to him. However, Robinson's argument only considers one component-the epithelial fraction-of the test results for one of the victims and ignores the results of the DNA tests on the sperm fractions. The DNA profile of the sperm fraction from both victims was consistent with Robinson's profile. For both victims, the probability that someone other than Robinson was the source of the DNA profile in the sperm fraction was 1 in 95.15 quintillion for Caucasians, 1 in 668.4 quadrillion for Blacks, and 1 in 10.86 quintillion for Hispanics. The approximate population of the world is 6.3 billion. Because Robinson's DNA was found in the sperm fraction from samples of both victims and the probability that another person was the source of the DNA is greater than the population of the world, we conclude the test results do not create a probability of innocence sufficient to undermine confidence in the outcome of the trial. Hicks v. State, 151 S.W.3d 672, 675 (Tex.App.-Waco 2004, pet. ref'd); Fuentes v. State, 128 S.W.3d 786, 788 (Tex.App.-Amarillo 2004, pet. ref'd). We reject Robinson's assertion that newer and more sophisticated tests or testing on different biological evidence would have produced favorable results for him. The issue before us in this appeal is whether the results of the tests actually performed demonstrate a reasonable probability of innocence; the issue is not what other, non-existent, tests might have shown. See Booker, 155 S.W.3d at 267. We resolve Robinson's issues against him and affirm the trial court's findings.