Opinion filed August 6, 2015




                                        In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-14-00038-CR
                                   __________

                   DONALD LEE LAMPKIN, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                             Midland County, Texas
                        Trial Court Cause No. CR 12,051


                      MEMORANDUM OPINION
      The trial court found that the postconviction DNA test results for Donald Lee
Lampkin failed to demonstrate a reasonable probability of his innocence in the face
of other evidence sufficient to establish guilt. Appellant appeals the order of the trial
court in a single issue and argues that the trial court erred because the results of the
DNA test were such that he would not have been convicted. We affirm.
                       I. Background and Evidence at Hearing
       Appellant was convicted in 1984, after he pleaded guilty, for burglary of a
habitation with the intent to commit sexual assault. In 2011, Appellant applied for
postconviction DNA testing, which the trial court granted after the State located
evidence to test in the victim’s panties. The results of the DNA test excluded
Appellant as a contributor to the DNA sample found in the victim’s panties. The
trial court held a hearing to determine whether a reasonable probability existed that
Appellant would not have been convicted had the results of the DNA test been
available at the trial of the offense.
       The State submitted, as evidence, the information, judgment of conviction,
affidavits from the victim, and affidavits of different employees of Midland County.
In the victim’s affidavits, she stated that she awoke in her apartment to a nude black
male standing by her bed. The man “was playing with his penis trying to get an
erection.” The man forced the victim’s “panties down and tried [to] put his penis in
[her] vagina. However, he was unable to get an erection.” The victim did not know
if the man “had a climax.” The man spoke to the victim, and she recognized his
voice as her neighbor based on several previous experiences with him. After the
assault, the victim “dressed quickly,” but she did not remember if she “put on the
panties he took off [her] or put on another pair” before she went to her mother’s
house and contacted the police. The victim stated that, six to eight hours prior to the
assault, she had engaged in sexual intercourse with her boyfriend. The trial court
found, in light of other evidence sufficient to establish guilt, that the results of the
DNA test failed to demonstrate a reasonable probability of innocence.
                                 II. Standard of Review
       We conduct a bifurcated review as articulated in Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.
2002). We defer to the rulings of the trial court on questions of historical fact and

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on application of law to fact questions that turn on credibility and demeanor. Id.;
see TEX. CODE CRIM. PROC. ANN. art. 64.04 (West 2006). We review, under a de
novo standard, the rulings of the trial court on application of law to fact questions
that do not turn on credibility and demeanor. Rivera, 89 S.W.3d at 59; see CRIM.
PROC. art. 64.04. The ultimate question of whether a reasonable probability exists
that the person would not have been convicted had the DNA test results been
available at trial is a question of law that we review de novo. Rivera, 89 S.W.3d at
59; see CRIM. PROC. art. 64.04.
      “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984); accord
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable
probability does not exist when other sufficient evidence establishes guilt. See
Rivera, 89 S.W.3d at 60. Similarly, the absence of a defendant’s DNA at a crime
scene, without more, does not constitute evidence of innocence. Prible v. State, 245
S.W.3d 466, 470 (Tex. Crim. App. 2008) (citing Bell v. State, 90 S.W.3d 301, 306
(Tex. Crim. App. 2002)); Rivera, 89 S.W.3d at 60 (“While the presence of . . . DNA
. . . could indicate guilt, the absence of such DNA would not indicate innocence.”).
A trial court does not err by finding DNA test results unfavorable if the test results
fail to demonstrate a reasonable probability of innocence. See Rivera, 89 S.W.3d at
60–61.
                                    III. Analysis
      Appellant argues that, if the DNA test results that excluded him as a
contributor of the DNA found in the victim’s panties had been available at trial, he
would not have pleaded guilty and would not have been convicted by a jury.
Appellant contends that the trial court, therefore, erred when it made an unfavorable
finding in its order.



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      The victim stated that she recognized her attacker’s voice as her neighbor’s
voice because of several previous interactions with him. The victim said that her
attacker did not have an erection and that she was unsure whether he “had a climax.”
The victim also stated she had had sexual intercourse with her boyfriend six to eight
hours prior to the assault. A DNA sample was taken from the victim’s panties, and
the results excluded Appellant as a contributor. However, the absence of Appellant’s
DNA, with nothing more, does not indicate a reasonable probability of innocence in
light of all the evidence available to the trial court. See Prible, 245 S.W.3d at 470;
Rivera, 89 S.W.3d at 60. The trial court did not err when it found the DNA test
results to be unfavorable to Appellant. See Rivera, 89 S.W.3d at 60–61. Appellant’s
sole issue on appeal is overruled.
                              IV. This Court’s Ruling
      We affirm the order of the trial court.




                                                MIKE WILLSON
                                                JUSTICE


August 6, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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