

NO. 07-10-0256-CR
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

OCTOBER
26, 2010
 

 
BOBBY J. CATE,  
 
                                                                                         Appellant
v.
 
THE STATE OF TEXAS,  
 
                                                                                         Appellee
___________________________
 
FROM THE 364TH DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2001-436,240; HONORABLE BRADLEY
S. UNDERWOOD, PRESIDING
 

 
Opinion
 

 
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
            Bobby J. Cate
appeals an order determining that, had the results of DNA testing been
available during his trial for aggravated sexual assault, it is not reasonably
probable that he would not have been convicted. 
We affirm the order.
            Background
            In 2002, appellant
was convicted of raping a woman he approached in the parking lot of a shopping
mall in Lubbock and who offered to give him a ride in her vehicle.  That conviction was based primarily on the
victim’s identification of appellant.  In
other words, there was no forensic evidence offered to support the verdict.
  In
2004, appellant filed a motion for DNA testing of hair samples found in the
victim’s car. One of the hair samples found in the vehicle was confirmed to
belong to John Walter Hamilton.   After testing, the trial court held a hearing
in accordance with art. 64.04 of the Code of Criminal Procedure.  Tex. Code
Crim. Proc. Ann. art. 64.04 (Vernon 2006) (requiring that after examining
the results of testing, the convicting court hold a hearing and make a finding
as to whether, had the results been available during the trial of the offense,
it is reasonably probable that the person would not have been convicted).  At the conclusion of an evidentiary hearing,
the trial court ruled against appellant. 

Discussion
             We review the trial court’s order to determine
whether the DNA test results create a probability of innocence sufficient to
undermine confidence in the outcome of the trial.  Fuentes
v. State, 128 S.W.3d 786, 787 (Tex. App.–Amarillo 2004, pet. ref’d).  While there may be subsidiary fact issues
which we review deferentially, Johnson v.
State, 183 S.W.3d 515, 519-20 (Tex. App.–Houston [14th Dist.]
2006, pet. ref’d, untimely filed), the ultimate question is one of law which we
review de novo.  Fuentes v. State, 128 S.W.3d at 787; see also Rivera v. State, 89 S.W.3d 55,
59 (Tex. Crim. App. 2002).     
            Appellant
argues that because the hair fibers of Hamilton were found in the victim’s
vehicle where the rape occurred and because Hamilton fits the general
description the victim provided of her assailant, i.e. white male, six feet, 160 pounds, late thirties to early
forties,  brown hair, beard, and mustache,
and blue or green eyes,[1]
there is a reasonable probability he would not have been convicted had that
particular evidence been available at trial. 
Yet, the record suggests that a witness during appellant’s original
trial indicated that hairs belonging to someone other than appellant were found
in the vehicle.  Indeed, more than eighty
hairs with various characteristics were found and at least forty of them were
dissimilar to appellant’s hair.  So, the
theory underlying appellant’s current attack upon his conviction was proffered
to the jury before it decided to convict him. 
  
             Simply put,
the DNA evidence does not exclude appellant as the assailant but merely tends
to place someone with the same general physical characteristics as appellant (Hamilton)
in the vehicle at some time or another. 
That Hamilton lived in Midland (as opposed to Lubbock where the assault
occurred), that the assault victim acquired the vehicle from an individual
living in Midland, that both the latter and Hamilton were acquaintances, and
that Hamilton admitted to using the vehicle as the locus of a sexual rendevous
in Midland with his girlfriend at one time could reasonably explain how the
hair came to be in the vehicle.  At the
very least, it provides little to no logical basis to replace appellant with
Hamilton at the scene of the assault in Lubbock.  More needed to be presented before such could
occur.
            It must also
be remembered that the victim was quite certain of her identification of appellant
as her attacker.  Moreover, she so
identified him in three different photo arrays. 
As previously held by us in Cate
v. State, 124 S.W.3d 922 (Tex. App.–Amarillo 2004, pet. ref’d), such
testimony was sufficient to support his conviction.  Id.
at 928-29.  This is of import for
authority tells us that a reasonable probability of innocence does not exist if
there is sufficient evidence, independent of the DNA evidence in question, to
establish the appellant’s guilt.  Johnson v. State, 183 S.W.3d at
520.  
            Inconclusive
evidence does not make innocence more or less probable.  Baggett
v. State, 110 S.W.3d 704, 707 n.1 (Tex. App.–Houston [14th
Dist.] 2003, pet. ref’d); see also Booker
v. State, 155 S.W.3d 259, 266-67 (Tex. App.–Dallas 2004, no pet.) (finding
no reasonable probability of innocence because the testing did not exclude
appellant as the culprit); Fuentes v.
State, 128 S.W.3d at 787 (noting, among other things, that the testing
failed to exclude appellant as the assailant); Eubanks v. State, 113 S.W.3d 562, 566 (Tex. App.–Dallas 2003, no
pet.) (casting doubt is not enough to meet the burden to show a reasonable
probability of one’s innocence).  The DNA
evidence at bar falls within that realm; it is inconclusive.  So too does it touch upon a defense presented
to and apparently rejected by the jury that convicted appellant.  Consequently, we overrule the issue before us
and affirm the trial court’s order.
 
                                                                                    Brian
Quinn 
                                                                                    Chief
Justice 
 
Publish.




[1]Appellant
was actually forty-four and had brown eyes. 



