Nos. 05-02-00117-CR, 05-02-00118-CR, 05-02-00119-CR, 05-02-00120-CR
Opinion Filed October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F92-40874-LI, F92-02560-JI, F92-04627-NI, F90-560-56-UI.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
Opinion By Justice WRIGHT.
Patrick Leondos Waller appeals the trial court's denial of his motions for post-conviction DNA testing. The jury convicted appellant of aggravated robbery in cause number 05-02-00117-CR (F92-40874-LI) and assessed a life sentence. The trial court convicted appellant of aggravated kidnaping in cause numbers 05-02-00118-CR (F92-02560-JI) and 05-02-00119-CR (F92-04627-NI) and possession of cocaine in cause number 05-02-00120-CR (F90-56056-UI). In each cause, appellant brings one issue, contending the trial court abused its discretion by denying his motions for post-conviction DNA testing because a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. We dismiss cause number 05-02-00119-CR (F92-04627-NI) for want of jurisdiction and affirm the trial court's orders in the remaining cause numbers.
Background
Appellant and another male abducted two couples from different locations. The men threatened to kill their captives, tied them up in a basement in South Dallas, and raped one of the women. After appellant and his cohort left with the couples' cars, the victims untied each other and escaped. In 1992, appellant was tried for the aggravated robbery of Sabrina Cauvet. At that trial, Sabrina Cauvet and Bruce Dickinson identified appellant as one of the two men who kidnaped them at gunpoint and took them to a vacant home, forced them to strip and tied them up. Brenda and Rick Goodhart were also kidnaped the same night. Brenda Goodhart testified that appellant was one of the two men who kidnaped her and her husband at gunpoint as they were leaving the West End in Dallas. After the men forced them to withdraw money from an ATM, the men took them to a vacant house and tied them up. Goodhart identified appellant as the man who vaginally raped her while she was forced to perform oral sex on the other kidnaper. After hearing this and other evidence, the jury convicted appellant for the aggravated robbery of Cauvet and sentenced him to confinement for life. On the same day, the trial court revoked appellant's deferred adjudication probation, adjudicated appellant guilty for possession of cocaine, and sentenced him to twenty years' confinement. After appellant pleaded guilty to kidnaping Cauvet and Dickinson, the trial court sentenced him to thirty years' confinement in each case. In 2001, appellant filed motions for post-conviction DNA testing in all four cause numbers. After a hearing, the trial court denied appellant's requests. This appeal followed. Cause Number 05-02-00119-CR
In cause number 05-02-00119-CR, the clerk's record shows appellant's motion for new trial was granted. On July 15, 1996, this Court dismissed the original appeal for want of jurisdiction and remanded for a new trial. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex.App.-Dallas 1996, no pet.). Nothing in our record indicates that a new trial was held. Because granting a motion for new trial restores a criminal case to its position before the former trial, and there has been no subsequent trial, appellant has not been convicted in cause number 05-93-00334-CR. See Tex.R.App.P. 21.9; Waller, 931 S.W.2d at 643-44. Thus, article 64.01 is not applicable. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2003) (a convicted person may submit to the convicting court a motion for forensic DNA . . .). We dismiss cause number 05-02-00119-CR for want of jurisdiction. Post-Conviction DNA Testing
In 2001, the legislature enacted chapter 64 of the code of criminal procedure, which governs motions for forensic DNA testing. To obtain DNA testing under chapter 64, several requirements must be met. However, only one of the requirements is disputed in this case. In particular, we must determine whether appellant met his burden to show that he "would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2003). That showing has not been made if exculpatory test results would "merely muddy the waters." Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002), cert. denied, 72 U.S.L.W. 3146 (Aug. 6, 2003); Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002). In other words, DNA testing must conclusively outweigh all other evidence of guilt. Rivera, 89 S.W.3d at 59; Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Although there may be subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application of law to fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. Rivera, 89 S.W.3d at 59. Here, the record shows that three of the four victims unequivocally identified appellant as the kidnapper and robber. Appellant was arrested after the police saw appellant watching another couple in the same area of town where the Goodharts were abducted. When he was arrested, appellant had a weapon, later identified by Goodhart, Dickinson, and Cauvet as the same weapon used to abduct them. Thus, even if the DNA evidence were exculpatory, it would, at most, discredit only one of the three witnesses who positively identified appellant. It does not impact upon Dickinson's or Cauvet's identification of appellant, nor does it impact the evidence showing appellant was stalking another couple with the same gun used to abduct Goodhart, Dickinson, and Cauvet. Finally, at the hearing on the request for DNA testing, Kimberly Judin testified that, based on her experience as a felony prosecutor, she would prosecute appellant for aggravated kidnaping and aggravated robbery even if the DNA evidence excluded appellant as the contributor of the DNA recovered from the rape victim. Under these circumstances, we cannot conclude the trial court abused its discretion by denying appellant's motions for DNA testing. We overrule appellant's sole issue. Accordingly, we affirm the trial court's orders denying appellant's motions for DNA testing.