      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00216-CR




                                       In re Stewart Hunter




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 94-1618, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION

               In June 1994, Stewart Hunter pleaded guilty to aggravated sexual assault and was

sentenced to fifteen years in prison as called for in a plea bargain. In October 2002, he filed a pro

se application for forensic DNA testing and an attorney was appointed to represent him. He now

appeals from the district court’s order denying the request for testing.

               We summarize the pertinent facts shown in documents contained in the clerk’s

record. The assault took place at about 3:30 a.m. on January 30, 1994, in a motel room on South

Congress Avenue in Austin. The complainant, who was hearing impaired, lived near the motel. At

the hospital later that day, the complainant told the sexual assault nurse examiner that she was taking

out her trash when she was approached by a “guy.” She could not understand what he was saying,

and he asked her to come inside his room “where he could write things.” Two other males were

asleep in the room. When the first man seized her arm, she screamed and attempted to get help from

the other men by pointing at the telephone. The complainant and the assailant struggled, and he

succeeded in tearing off her pants and underwear. He punched her twice and choked her. She told
the nurse that she may have “blacked out [for] a few minutes.” The assailant “[t]ried to rape her but

couldn’t get in.” He penetrated her with his finger and “then raped her with [his] penis.” The

complainant finally escaped and went for help.

               The State’s response to the motion for DNA testing states that Hunter and his

companions were arrested at a bus stop near the motel shortly after the assault and identified at the

scene by the complainant. An Austin police officer subsequently applied for a search warrant to

obtain biological samples from Hunter. The officer’s affidavit in support of the warrant application

states that the complainant made a positive identification of Hunter shortly after the assault. Two

other witnesses to the assault, Chris Broadway and Norman Owens, also identified Hunter as the

perpetrator.

               Hunter was sixteen years old at the time of the offense. He agreed to be tried in

district court and to plead guilty in exchange for the State’s promise to recommend a fifteen-year

sentence. Eve Thurman, a community supervision officer, interviewed Hunter ten days before he

entered his plea. In an affidavit, Thurman stated that Hunter “readily admitted his presence and

participation” and did not “attempt to deny his involvement or attempt to redirect the blame on the

other males at the scene.” Hunter described “striking and fondling the victim and his attempts to

engage in sexual intercourse.” According to Thurman’s affidavit, “Hunter did not try to deny the

events leading up to the encounter in the hotel room, nor his actions while in the hotel room, except

to deny vaginal penetration, but he did admit digital penetration ‘somewhere.’”

               The indictment contained multiple counts alleging that Hunter penetrated the

complainant vaginally and anally with his finger and his penis. The State waived all the counts

except the one alleging penetration of the complainant’s sex organ by Hunter’s sex organ.


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               In its order denying the motion for DNA testing, the district court found that Hunter

pleaded guilty, never denied his involvement or attempted to redirect blame onto the other males

present at the assault, and admitted striking and fondling the complainant in an attempt to engage

in sexual intercourse. The court concluded that Hunter is not entitled to DNA testing because: (1)

identity was and is not an issue in this case, and (2) Hunter failed to prove that a reasonable

probability existed that he would not have been prosecuted or convicted if exculpatory results had

been obtained through DNA testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex.

Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B),

(2)(A) (West Supp. 2005)).1 We defer to the trial court’s findings of historical fact, but conduct a

de novo review of its application of the law to these facts. Rivera v. State, 89 S.W.3d 55, 59 (Tex.

Crim. App. 2002).

               In his brief to this Court, Hunter challenges the trial court’s conclusion that identity

was and is not an issue. He argues that if DNA tests of the vaginal swabs taken during the

complainant’s physical examination were exculpatory, it would prove that he did not penetrate the

complainant with his penis despite his guilty plea and the complainant’s identification. See Smith

v. State, 165 S.W.3d 361, 365 (Tex. Crim. App. 2005). The opinion in Smith on which Hunter relies

is legally and factually distinguishable from the cause before us. Smith was decided under the 2003

amendment to article 64.03(a)(2)(A) that changed the DNA test applicant’s burden of proof. Id. at

363-64; see also Hood v. State, 158 S.W.3d 480, 482 (Tex. Crim. App. 2005). And under the



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       Hunter’s motion for forensic DNA testing was filed before the effective date of the 2003
amendments to chapter 64, and is therefore governed by the law in effect at the time the motion was
filed. See Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17. Hunter
had the burden to show a reasonable probability that exculpatory DNA tests would prove his
innocence. See Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002).

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evidence in that case, the defendant could not have been guilty as a party but only as the attacker who

left the seminal fluid. Smith, 165 S.W.3d at 364-65.

               Hunter admitted that he was present in the motel room when the assault took place,

struck and fondled the complainant, attempted to engage in sexual intercourse with her, and

penetrated her with his finger. Given this evidence, the presence of another person’s DNA on the

vaginal swabs would not constitute affirmative evidence of Hunter’s innocence. The evidence would

support Hunter’s conviction as a party to the aggravated sexual assault by vaginal penetration even

if the DNA tests were exculpatory as to him. See Wilson v. State, 185 S.W.3d 481, 485 (Tex. Crim.

App. 2006) (holding that if DNA testing showed that there was an additional perpetrator, it would

have no effect on defendant’s guilt as a party); see also Skinner v. State, 122 S.W.3d 808, 811 (Tex.

Crim. App. 2003). We agree with the trial court’s conclusion that Hunter failed to prove that there

is a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA

test results had been obtained.

               Hunter’s point of error is overruled and the order denying forensic DNA testing is

affirmed.




                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: October 6, 2006

Do Not Publish


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