Opinion filed May 31, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-14-00099-CR
                                   __________

                     TONY DEAN McCOY, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                              Stonewall County, Texas
                             Trial Court Cause No. 1772


                     MEMORANDUM OPINION
      Following completion of postconviction DNA testing requested by Tony
Dean McCoy, the District Court of Stonewall County conducted a hearing pursuant
to Article 64.04 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.
ANN. art. 64.04 (West Supp. 2015). The court concluded that the test results did not
create a probability of innocence sufficient to undermine confidence in the outcome
of Appellant’s jury trial in 1999. Appellant has appealed.1 We affirm.
        In 1999, a Stonewall County jury convicted Appellant of aggravated sexual
assault of a child and assessed his punishment at confinement for twenty years and
one day. This court affirmed his conviction on October 12, 2000. McCoy v. State,
No. 11-99-00049-CR, 2000 WL 34234870 (Tex. App.—Eastland Oct. 12, 2000, no
pet.) (not designated for publication). In that appeal, Appellant presented seven
issues, including two issues challenging both the legal and factual sufficiency of the
evidence. This court discussed the evidence in detail in that opinion, finding it
legally and factually sufficient to support his conviction.
        In 2011, Appellant filed a postconviction motion for forensic DNA testing of
three pubic hairs recovered from the victim’s bed covering. Four pubic hairs were
found on the bed covering, but only one of the hairs was responsive to DNA testing
at the time of trial. The DNA test showed that one pubic hair belonged to someone
other than Appellant or the victim. In his motion, Appellant also sought to test blood,
saliva, and pubic hair samples from five named individuals that he claimed had
access to the victim. The trial court denied the motion on the ground that Appellant
had failed to establish by a preponderance of the evidence that he would not have
been convicted if exculpatory results had been obtained through DNA testing.
        In 2013, this court reversed the trial court and remanded the case for further
DNA testing. McCoy v. State, No. 11-11-00179-CR, 2013 WL 2406550 (Tex. App.
—Eastland May 30, 2013, no pet.) (mem. op., not designated for publication). At
the hearing on his motion for postconviction DNA testing, Appellant argued that
short tandem repeat DNA testing (STR) had been developed as a forensic DNA
testing technique subsequent to his trial. Appellant said that the people named in his

        1
         A court of appeals has jurisdiction to consider a defendant’s appeal of unfavorable findings from
the Article 64.04 hearing. Whitfield v. State, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).

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motion as possible suspects were “in and out of that house at the time of that
incident” and were not just chosen at random. He theorized that the pubic hairs that
could not be tested in 1999 might be tied to one of those individuals. Appellant
argued that, if the DNA test showed that one of those people had lost a pubic hair in
the victim’s bed, where they had no reason to be, and if that evidence had been
presented to the jury, he would not have been convicted.
      In reversing the trial court, we pointed out that Appellant’s request for DNA
samples from individuals named in his motion was not addressed at the hearing on
his postconviction motion, and we did not address that request. Nor is that motion
before us now. The postconviction testing in 2014 did exclude Appellant as being
the person who left the three pubic hairs.
      After the postconviction DNA testing was completed, the trial court held a
hearing pursuant to Article 64.04 of the Texas Code of Criminal Procedure.
Article 64.04 specifically provides that, “[a]fter examining the results of testing
under Article 64.03 and any comparison of a DNA profile under Article 64.035, the
convicting court shall 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.” CRIM. PROC. art. 64.04.
      The record reflects that the trial court, under a new district judge, reviewed
the entire record of the 1999 jury trial; that record included the motion for new trial
hearing. The trial court found that, during the trial, the State’s DNA analyst testified
that the four pubic hairs taken from the victim’s blue comforter were visually similar
to Appellant’s pubic hair samples, that DNA testing of one of the hairs revealed that
it was not from Appellant or the victim, and that the other three pubic hairs did not
respond to testing. The trial court stated that Appellant’s trial attorney introduced
the evidence demonstrating that the one pubic hair sample that did respond to DNA


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testing did not match the pubic hair sample provided by Appellant. Despite this
evidence, the jury found Appellant guilty of aggravated sexual assault of a child.
      The trial court also noted that the district attorney had mentioned in his
opening statement that a chemist from Lubbock would testify that “he examined
several items of evidence including blood and hair from the victim and blood and
hair from [Appellant]. There was no mention of the pubic hairs being visually
similar to [Appellant].” The trial court also noted that, during closing arguments,
the district attorney made no mention of the pubic hairs. The trial court found that,
had the results from the postconviction DNA testing been available during the trial
in 1999, it is reasonably probable that Appellant would still have been convicted.
      In his sole issue on appeal, Appellant argues that the postconviction DNA
testing created a reasonable probability of innocence. On appeal, we must determine
whether the DNA test results create a probability of innocence sufficient to
undermine confidence in the outcome of the trial. In other words, the ultimate
question we are to answer is whether Appellant has shown a 51% probability that he
would not have been convicted had the results of the ordered DNA tests been
available at trial. Medford v. State, No. 02-15-00055-CR, 2015 WL 7008030, at *2
(Tex. App.—Fort Worth Nov. 12, 2015, pet. filed) (mem. op., not designated for
publication); Glover v. State, 445 S.W.3d 858, 861–62 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d); Cate v. State, 326 S.W.3d 388, 389 (Tex. App.—Amarillo
2010, pet. ref’d); Frank v. State, 190 S.W.3d 136, 138 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d).
      Just as the trial court did, we reviewed the entire record, including the record
from the underlying trial, to determine if the postconviction DNA test results cast
such doubts on Appellant’s conviction. We afforded almost total deference to the
trial court’s determination of issues of historical fact and application-of-law-to-fact
issues that turned on credibility and demeanor, and we reviewed de novo other
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application-of-law-to-fact issues. Glover, 445 S.W.3d at 861; Cate, 326 S.W.3d at
389. The ultimate question we must determine is one of law. The Court of Criminal
Appeals has concluded “that the courts of appeals have been given authority to
consider the sufficiency of the evidence as well as other grounds of appeal” under
Chapter 64 by the legislature’s enactment of Article 64.05. Whitfield v. State, 430
S.W.3d 405, 409 (Tex. Crim. App. 2014); see also CRIM. PROC. art. 64.05 (West
2006).
      In 2000, we found that the evidence, though circumstantial, was legally and
factually sufficient to support Appellant’s conviction of aggravated sexual assault of
a child. Appellant is the father of the victim, who was thirteen years old at the time
of the assault. He also is the father of the victim’s older sister, who cared for the
victim and was the second witness for the State. The victim suffered from Down’s
syndrome and from trisomy 21; she was not able to speak and required someone to
be with her at all times. The victim and her older sister lived with Appellant, his
girlfriend (Paula Tate), and their eight-year-old son.
      The older sister and her friend testified that they had asked Appellant if they
could go swimming that day. He first refused, but then agreed they could if they
took his son with them. After they went to the swimming pool, the two girls wanted
one of the older sister’s bathing suits. Leaving Appellant’s son there, they returned
to the mobile home where they had left Appellant and the victim less than an hour
earlier. Both girls testified that the door was locked, which was unusual; that it took
Appellant five to seven minutes to answer the door despite their loud knocking; that
Appellant answered the door wearing only his pants; that they found the victim
naked with duct tape on her wrists and ankles and blood on her stomach; that there
was a large wet blood spot on the older sister’s pink comforter on the top bed of the
trundle bed; that the older sister then yelled and Appellant came to where they were
in the mobile home; that Appellant wanted the comforter washed immediately in
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cold water to remove the stain; that they also noticed drops of blood on the blue
comforter on the victim’s trundle bed; that Appellant blamed the incident on his son;
and that the older sister told Tate the next day that she thought her dad had been
doing something with the victim and that the victim should be examined at the local
hospital.
      Tate testified that the older sister was crying when she told Tate the next day
what the two girls had found. The older sister told Tate that she thought “Dad’s
been messing with [the victim].” Before Tate took the victim to the local hospital
for an examination, she questioned Appellant about the locked door. Appellant told
her that he locked the door because he was “smoking a joint” and was then going to
take a shower. Later, Appellant told Tate that he was taking a shower and did not
want anyone to come in. At one point, Tate told Appellant that his answers were not
making any sense. She left, and when she came back, he said, “I love you Paula.
Do you know what will happen to me?” Appellant also said, “I might as well go to
the country and shoot myself.” Tate testified that, when she asked Appellant where
he was when the older sister found the victim in the bathroom, he told her that he
was outside.
      Because the determination of the veracity of the foregoing evidence was based
on credibility and demeanor, we assume, based on the jury’s guilty verdict, that the
jury believed that these events and statements occurred as the girls and Tate testified.
There were two examinations of the victim. A nurse practitioner from the local
hospital testified that the victim had a small tear in her labia minora and a small
hematoma on her vaginal opening. The nurse practitioner believed that the victim
had been sexually assaulted. On July 24, a sexual assault nurse examiner at Hendrick
Medical Center found that the victim had suffered chronic penetration that had worn
down the wall of the hymen and that penetrations had occurred in the past; she was
unable to say that penetration had also occurred on July 22.
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       Tate testified that, after the victim was examined at the local hospital, she was
surprised to find that Appellant had taken her car and left his company pickup for
her to drive. She also said that, upon returning to their mobile home, she discovered
that Appellant was gone and that he had taken all his clothes and guns with him.
Tate also testified that, from July to September, she had no contact with Appellant
and did not know where he was. When he called the first time, she was too upset to
talk. A week later, he called and said that he was working in Louisiana and would
send her money; she told Appellant of the charges against him.
       Texas Ranger Marshall Brown testified that Appellant sent money to Tate but
that Appellant had a man named Timothy Wilson send the money; Ranger Brown
opined that that action was to prevent Ranger Brown from being able to locate
Appellant. Ranger Brown learned from Sheriff Bill Mullen that the money was
wired from someone named Wilson who resided at 7B Nola Street in Dodge City,
Kansas. But there was no Nola Street in Dodge City. However, there was a Nola
Street in a town near Oklahoma City. The jury could have considered Appellant’s
flight and actions during his flight to be strong evidence of his guilt.
       Appellant chose to testify at trial. He confirmed that he locked the door, but
said that he did so because he wanted to keep the victim inside and did not want his
dog to run off. But on cross-examination, he admitted that he told Paula that he was
in the bathroom smoking a joint. As he was about to get into the shower, he heard
someone beating on the door. He went to the door, let his older daughter and her
friend in, and then went back to shower. It was then that the girls began hollering,
and they “come in there carrying this wad of tape.” Appellant testified that, when
the girls showed him the stained bed covering on the older sister’s bed, he told the
older sister to wash it because he did not want Tate to find it and get in a fight with
her.


                                           7
      Appellant testified that, after Tate took the victim to the hospital, he drove
around for awhile, changed his company pickup for her car, drank a couple of beers,
“went off [his] rocker,” and started driving toward Oklahoma.            He went to
Tahlequah, Oklahoma, where his aunt lived. He admitted that he had a coworker,
Wilson, wire the money because he had never wired any money.
      During the State’s direct examination of the forensic expert, David Young,
the State did not question him concerning the testing of the pubic hairs. Appellant’s
attorney, during cross-examination of Young, first raised the subject of DNA testing
of the pubic hairs. It was then that Young stated that pubic hairs are tested if they
appear visually similar to the defendant’s pubic hairs and that, in this case, the four
hairs did. However, only one hair responded to DNA testing, and it was not from
the victim or Appellant. In closing argument, Appellant’s attorney pointed out that
the State had chosen not to introduce into evidence the lab report that had negative
results and also pointed out that none of the pubic hairs matched Appellant. In its
closing arguments, the State was brief and principally said that the most important
witness was Appellant, that Appellant’s answers were too perfect, and that Appellant
should not be believed.
      Appellant’s trial attorney offered the jury the theory and argument that
Appellant makes now. He argued that the one pubic hair belonged to someone other
than the victim or Appellant; yet the jury decided to convict Appellant. The
argument now is that none of the pubic hairs on the blue comforter belonged to
Appellant. More than just the DNA test results needed to be presented before we
can say that Appellant has shown a 51% probability that he would not have been
convicted had the results of the ordered DNA tests been available at trial.
      The DNA evidence by itself is inconclusive. Appellant offered no evidence
to reasonably explain the condition in which the other children found the victim or
how, if he was in the house at the time the other children came home, he did not
                                          8
know that the victim was bound with tape in the bathroom with blood on her
stomach. In addition, Young did not testify that the hairs belonged to Appellant
based on the fact that they were visually similar to Appellant’s known sample.
Instead, Young explained that analysts where he works do a visual comparison and
that, if they think the pubic hairs “could have possibly come from an individual[,]
we will go ahead and run it using our DNA analysis.” Young testified that he could
definitively conclude that one of the pubic hairs did not come from Appellant and
that he could not definitively say who the other pubic hairs came from. Therefore,
the DNA evidence does touch upon a defense presented to and apparently rejected
by the jury that convicted Appellant. See Cate, 326 S.W.3d at 390. Consequently,
we overrule Appellant’s sole issue on appeal.
       We uphold the finding of the trial court and affirm its order.


                                                               PER CURIAM


May 31, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall.2

Bailey, J., not participating.




       2
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.

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