Affirm and Opinion Filed October 8, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01197-CR

                            WILLIE DAVIS SPENCER, Appellant
                                          V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-9035572-H

                             MEMORANDUM OPINION
                     Before Justices Bridges, Molberg, and Partida-Kipness
                                  Opinion by Justice Molberg

       Willie Davis Spencer challenges the trial court’s determination that the results of post-

conviction DNA testing did not demonstrate a reasonable probability that Spencer would not have

been convicted of aggravated sexual assault had the test results been available to him at his trial.

In a single issue, Spencer claims the trial court committed reversible error by failing to hold a

hearing after examining the DNA test results. We affirm the trial court’s findings.

                                        BACKGROUND

       Shortly after midnight on October 31, 1990, complainant and her date were sitting in a

parked rental car at Glendale Park in Dallas County when Spencer and two other men approached

the car with a rifle. The men robbed complainant of her jewelry and they robbed complainant’s

date of a gun. After forcing complainant’s date to exit the vehicle and lie on the ground, Spencer
and the two accomplices forced complainant into the trunk of the car and drove her to a wooded

area. At Spencer’s trial, complainant testified that, in the woods, Spencer said, “I’m going to fuck

this bitch.” Spencer vaginally raped complainant for approximately fifteen minutes and “beat”

her. One of the other suspects vaginally raped complainant for approximately five minutes. The

third man, Jamon Marsh, raped her anally. Complainant testified that after they were finished

raping her, the men threw some clothes at her, and Spencer gave her seventy-five cents and told

her that if he ever saw her at a park again, he would kill her. The men then drove away.

          Less than two hours later, at 1:45 a.m. on October 31, complainant underwent a rape

examination at Parkland Hospital. The examining physician took notes on complainant’s injuries.

The physician observed motile spermatozoa in complainant’s vaginal vault. The evidence in

complainant’s sexual assault kit included a vaginal swab, a vaginal smear, an anal swab, an anal

smear, a blood sample, pubic hair combings, and pubic hair cuttings. The sexual assault kit was

submitted to Southwestern Institute of Forensic Sciences at Dallas.

          On November 19, 1990, complainant identified Spencer’s picture in a photo lineup as one

of the men who had abducted and raped her. In a written statement Spencer gave to the police on

December 3, 1990, Spencer described raping a woman after abducting her at gunpoint from

Glendale Park with two men he identified as “J” and “Cornell.” In his December 3 statement,

Spencer stated that he, Cornell, and “J” approached a man and a woman in a car at Glendale Park;

they forced the man to exit the vehicle and lie on the ground; they forced the woman into the trunk

of the car; they drove to the Old Kiest Drive Inn; and he, Cornell, and “J” raped her.

          In a bench trial on September 9, 1991, Spencer was convicted of aggravated sexual assault

and aggravated robbery.1 For the aggravated sexual assault offense, the trial court assessed



   1
       The trial court’s judgment is dated September 10, 1991.
punishment, enhanced by a prior felony conviction, at forty-five years’ confinement.2 Spencer

unsuccessfully appealed his convictions in this Court.

        After his convictions, Spencer testified as a witness for the State at Jamon Marsh’s trial on

February 6, 1992. Spencer testified that on the night in question, he, Jamon, and “Cornell”

approached a man and a woman in a car in Glendale Park; they forced the man to exit the vehicle

and lie on the ground; they forced complainant into the trunk of the car; and they drove

complainant to the woods where he, Jamon, and Cornell raped her.

        On August 2, 2012, Spencer applied for post-conviction DNA testing pursuant to chapter

64 of the Texas Code of Criminal Procedure. By order dated August 24, 2017, the trial court

granted Spencer’s motion and ordered the Department of Public Safety (DPS) crime laboratory to

test “vaginal swabs and anal smears collected during the victim’s sexual-assault examination and

currently in the possession of the Southwestern Institute of Forensic Sciences.” The trial court

also ordered DNA testing of “a previously obtained blood sample from the victim and a buccal-

swab sample to be obtained from Spencer.”

        The DPS crime laboratory reported on June 22, 2018 that, with respect to complainant’s

vaginal swabs:

           Spermatozoa, semen specific constituents, were detected.

           The DNA profile from the sperm cell fraction is interpreted as originating
           from a single individual. Obtaining this profile is 5.78 nonillion times more
           likely if the DNA came from the suspect than if the DNA came from an
           unrelated, unknown individual. Based on the likelihood ratio result, the
           suspect cannot be excluded as a possible contributor of the profile. The
           victim is excluded as the contributor of this profile.

           The DNA profile from the epithelial cell fraction is interpreted as a mixture
           of two individuals with the victim as an assumed contributor. Based on the



    2
      For the aggravated robbery offense, the trial court assessed punishment, enhanced by two prior felony
convictions, at twenty-five years’ confinement.
          likelihood ratio result, it is inconclusive whether the suspect is a contributor
          to the profile.

       On September 13, 2018, the trial court made Article 64.04 Findings on the Results of the

Post-Conviction DNA Testing. The trial court’s findings stated, “The DNA test results were

examined by this Court during a hearing held under article 64.04 of the Texas Code of Criminal

Procedure.” Based on the June 22, 2018 DPS crime laboratory report, the trial court found that

the DNA test results did not demonstrate a reasonable probability that Spencer would not have

been convicted had the test results been available to him at his 1991 trial.

       On appeal, Spencer complains the trial court violated his “constitutional and substantial

rights” by failing to conduct a hearing after examining the post-conviction DNA test results.

                                            ANALYSIS

       After examining the results of post-conviction DNA testing, Article 64.04 of the Texas

Code of Criminal Procedure requires the convicting court to hold a hearing and make a finding as

to whether it is reasonably probable that the defendant would not have been convicted if the results

had been available during the trial of the offense. TEX. CODE CRIM. PROC. ANN. art. 64.04. To

demonstrate a reasonable probability that the defendant would not have been convicted, the

defendant must show a reasonable probability that exculpatory DNA testing would prove his

innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). That showing is not met if

the test results would “merely muddy the waters.” Id.

          Spencer Waived Any Complaint the Trial Court Did Not Conduct A Hearing

       Here, Spencer successfully petitioned the trial court to order DNA testing over twenty-five

years after his conviction. The trial court received and considered the results of the testing, and

determined that, even if the test results had been available during Spencer’s trial, it was not

reasonably probable that Spencer would not have been convicted. The trial court’s Article 64.04

findings explicitly stated that the court conducted the mandatory hearing under Article 64.04.
However, the record on appeal does not include a reporter’s record of an Article 64.04 hearing,

and there is no other indication in the record that the trial court conducted a hearing or that Spencer

waived his right to a hearing. Indeed, the record includes a February 28, 2019 letter from the

Dallas County Public Defender’s office to the court reporter stating “there is no record” of “any

on-the-record proceedings” “concerning the adverse findings on the defendant’s DNA motion on

September 13, 2018.” The court reporter also filed a letter in this Court which indicates not only

the absence of an on-the-record hearing, but also any hearing at all:

            [T]here is no reporter’s record to turn in. After researching this case, I’m told
            that the only thing done recently in my court was the Judge signing an agreed
            order granting a [sic] Spencer’s Motion. There was no hearing held regarding
            this matter.

        Spencer contends the trial court erred by failing to conduct a hearing in accordance with

Article 64.04. However, nothing in the record indicates Spencer either objected to this error,

requested a hearing, or otherwise alerted the trial court to the necessity of a hearing.3 To preserve

error for appellate review, the complaining party must make a timely, specific objection at the

earliest opportunity and obtain an adverse ruling. TEX. R. APP. P. 33.1(a); Valle v. State, 109

S.W.3d 500, 508–509 (Tex. Crim. App. 2003); Hunnicutt-McDonald v. State, No. 01-18-01035-

CR, 2019 WL 3484215, at *2 (Tex. App.—Houston [1st Dist.], Aug. 1, 2019, no pet.) (mem. op.,

not designated for publication).           The failure to object can waive even an error involving

constitutional rights. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Briggs v. State,

789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

        The trial court’s order granting Spencer’s request for DNA testing and ordering the DPS

crime laboratory to perform DNA testing was signed on August 24, 2017. The DPS crime

laboratory report was issued on June 22, 2018. The trial court entered its Article 64.04 Findings


    3
      On appeal, Spencer does not claim he objected to any failure by the trial court to conduct a hearing. Nor does
he claim he requested a hearing or otherwise alerted the trial court to the necessity of a hearing.
on the Results of Post-Conviction DNA Testing on September 13, 2018. On September 20, 2018,

Spencer wrote a letter, in his own hand, to the trial court, stating:

           I will [sic] like to appeal my DNA results because the court notes, however,
           that the victim was sexually assulted [sic] by a total of three men during the
           same incident. Thus, in order to be consdered [sic] DNA contributions from
           at least three males and must exclude Spencer as being one of those
           contributors.

Spencer’s letter was filed in the trial court on September 27, 2018. At no point did Spencer object

to any failure by the trial court to conduct a hearing. Nor did Spencer request a hearing or

otherwise alert the trial court to the necessity of a hearing. We conclude Spencer waived any error

in the trial court’s Article 64.04 findings. See Clark, 365 S.W.3d at 339; Briggs, 789 S.W.2d at

924.

                                 Any Error Did Not Harm Spencer

       Even if Spencer had preserved his complaint for appellate review—which he did not—any

error is non-constitutional error which did not harm Spencer or affect his substantial rights. The

DNA test results showed Spencer cannot be excluded as a source of the DNA extracted during

complainant’s rape examination.        These inconclusive DNA test results do not establish a

reasonable probability of innocence, and the trial court did not err in finding the results were not

favorable to Spencer. See Rivera, 89 S.W.3d at 59; Morrison v. State, No. 05-06-01632-CR, 2007

WL 4171261, at *3 (Tex. App.—Dallas Nov. 27, 2007, pet. ref’d) (not designated for publication);

Baggett v. State, 110 S.W.3d 704, 707 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Therefore, assuming, without deciding, that the trial court did not hold a hearing in accordance

with Article 64.04, any error did not harm Spencer. See Morrison, 2007 WL 4171261, at *3;

Baggett, 110 S.W.3d at 707.
       We resolve Spencer’s sole issue against him. We affirm the trial court’s findings.




                                                 /Ken Molberg//
                                                 KEN MOLBERG
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47


181197f.u05
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 WILLIE DAVIS SPENCER, Appellant                  On Appeal from the Criminal District Court
                                                  No. 1, Dallas County, Texas
 No. 05-18-01197-CR         V.                    Trial Court Cause No. F-9035572-H.
                                                  Opinion delivered by Justice Molberg.
 THE STATE OF TEXAS, Appellee                     Justices Bridges and Partida-Kipness
                                                  participating.

       Based on the Court’s opinion of this date, the findings of the trial court are AFFIRMED.


Judgment entered this 8th day of October, 2019.
