Opinion
No. 05-05-01213-CR
Opinion Filed November 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-18727-PN. Affirm.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
Walter Lee Williams, convicted of sexual assault in 1999, appeals the trial court's order denying his motion for post-conviction DNA testing of fluid found on a garment of the complainant on the night of the assault. Agreeing with the trial court that Williams's motion fails because the assailant's identity is not at issue in this case, we affirm the trial court's order. To be entitled to post-conviction DNA testing, an appellant must show, among other facts, that the perpetrator's identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2006); Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App. 2006). Identity must be an actual issue and not one that future DNA testing might raise. Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim.App. 2002). The record here reflects that the complainant called 911 during the assault and identified Williams at trial as the assailant. The record further reflects Williams was arrested at the scene and admitted that he engaged in sexual relations with the complainant. The sole issue at trial and on appeal was whether the complainant consented. See Williams v. State, No. 05-99-00629-CR (Tex.App.-Dallas 2000, no pet.) (not designated for publication). Recognizing that identity was not at issue at trial because of his admission, Williams argues now that his admission at trial should not preclude testing of the fluid. Williams first argues that denying testing based on his trial admission would be no different than denying testing solely on the basis of a guilty or no contest plea, which the Texas Code of Criminal Procedure specifically prohibits a trial court from doing. See Tex. Code Crim. Proc. art. 64.03(b) (convicted person who pleaded guilty or no contest may submit motion for post-conviction DNA testing and convicting court may not find that identity was not issue solely on basis of plea). Of course, when a defendant pleads guilty or no contest, the State is relieved of its burden of proving guilt beyond a reasonable doubt. See Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986); McGill v. State, No. 05-05-00904-CR, slip op. at 4, 2006 WL 2408618, *2 (Tex.App.-Dallas Aug. 22, 2006, no pet. h.). In most plea cases, evidence is admitted solely for a determination of punishment. Williams, 703 S.W.2d at 678. By contrast, Williams's trial was contested and the State offered evidence from several witnesses establishing Williams's guilt beyond a reasonable doubt. See Williams, No. 05-99-00629-CR. Williams's first argument is without merit. Williams's second argument is that testing should not be precluded because test results might
not only impute the credibility of the complainant, but may also show that it is in fact not [Williams's] DNA . . That could mean that there was another person that [the complainant] had sex with prior to her consensual sex with [Williams].However, Williams does not assert any facts suggesting the presence of another person at the time of the assault or otherwise supporting his contentions. See Green v. State, 100 S.W.3d 344, 345 (Tex.App.-San Antonio 2002, pet. ref'd) (trial court did not err in denying motion for post-conviction DNA testing where no factual allegations were asserted that would support finding that identity is or was issue); McBride v. State, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (same). His argument does nothing more than ask for testing so that an issue concerning identity might be raised. But the prospect of casting doubt is not sufficient to warrant post-conviction DNA testing. Bell, 90 S.W.3d at 308; Eubanks v. State, 113 S.W.3d 562, 566 (Tex.App.-Dallas 2003, no pet.). Williams's second argument is also without merit. We resolve Williams's sole issue against him. We affirm the trial court's order denying Williams's motion for post-conviction DNA testing.
This is true for misdemeanors and also for felony cases tried before a jury. See Williams, 703 S.W.2d at 678. In a non-capital felony plea case tried before the court, evidence is admitted to support the judgment. See Tex. Code Crim. Proc. 1.15 (Vernon 2005); Williams, 703 S.W.2d at 678. In those cases, the State's burden is not beyond a reasonable doubt; it must simply introduce "sufficient evidence to establish a defendant's guilt." Tex. Code Crim. Proc. 1.15; Williams, 703 S.W.2d at 678.