Opinion issued July 22, 2014




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                               NO. 01-12-00081-CR
                         ———————————
                     ROBERT WHITFIELD, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



              On Appeal from the 87th Judicial District Court
                        Freestone County, Texas1
                      Trial Court Case No. 9397-B




1
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred the appeal to this Court. See Misc. Docket No. 12–9008 (Tex.
     Jan. 10, 2012); see also TEX. GOV’T CODE ANN. § 73.001 (West 2013)
     (authorizing transfer of cases).
                            MEMORANDUM OPINION

      Appellant Robert Whitfield was convicted by a jury of rape, and nearly 20

years later he sought post-conviction DNA testing pursuant to Chapter 64 of the

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 64.03 (West

Supp. 2013). The trial court ordered testing and conducted a hearing. After

receiving testimony, the trial court found that there was not a reasonable

probability that Whitfield would not have been convicted had the results been

available at his trial. See id. art. 64.04. Roberts appealed the trial court’s finding.

      Because the testing does not create a reasonable probability that Whitfield

would not have been convicted had it been available at his trial, we affirm.

                                     Background

      A jury convicted Whitfield of rape in 1981 and assessed his punishment at

imprisonment for 15 years. The State had alleged that two other men, Ray Brown

and William Owens, acted with Whitfield and had intercourse with the

complainant. After his release, Whitfield was incarcerated again for failing to

register as a sex offender. In 1997, the rape kit from the original case was

destroyed, pursuant to routine evidentiary disposal procedures. In 2010, Whitfield

successfully moved for post-conviction DNA testing. See TEX. CODE CRIM. PROC.

ANN. arts. 64.01–.05 (West Supp. 2013). The trial court held a hearing on the

results of the testing on October 20, 2011.


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      At the hearing, forensic scientist Brandi Mohler testified about her

examination of the evidence from Whitfield’s case. Eight items in the possession

of the State had been submitted to Mohler:

       item K6, the known pubic hair of the complainant;

       item K7, the known head hair of the complainant;

       item K11, hair found on the complainant’s underwear;

       item K13, hair found on the complainant’s shirt;

       item Q1, the known pubic hair of accomplice Owen;

       item Q3, the known pubic hair of Whitfield;

       item Q5, the known pubic hair of accomplice Brown; and

       item Q6, four hairs found on the underwear of accomplice Brown,
      ----designated as hairs A, B, C, and D.

No analysis was performed on four of the hairs, K7, Q1, Q3, and Q5, because the

identities of the contributors were known. Mohler extracted DNA from K6, K11,

K13, and Q6-C.

      Mohler was unable to obtain a DNA profile from K11 or Q6-C. She

obtained a partial DNA profile from item K13, the hair found on the complainant’s

shirt. The partial DNA profile obtained from item K13 was “consistent with the

DNA profile of the victim.” Specifically, Mohler concluded, “The victim cannot be

excluded as the contributor of the stain at [four loci].” In summary, Mohler



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concluded that DNA in a hair found on the complainant’s shirt matched the DNA

of the complainant.

      The trial court found that the test results did not exonerate Whitfield. The

court concluded that it is not reasonably probable that Whitfield would not have

been convicted if the DNA testing results were available at his trial. Whitfield then

timely filed this appeal. See id. art. 64.05 (allowing appeals of forensic DNA

testing hearings “in the same manner as an appeal of any other criminal matter”).2

                                       Analysis

      In a single appellate issue, Whitfield argues that he established by a

preponderance of the evidence that it is reasonably probable that he would not have

been convicted had the results of the DNA testing been available at his trial. See id.

Thus, this appeal concerns only the trial court’s finding under Article 64.04 and

does not concern the propriety of any order or finding regarding the propriety of

further testing pursuant to Article 64.03. See id. arts. 64.03, 64.04.

      Article 64.04 of the Code of Criminal Procedure governs hearings on post-

conviction DNA testing. Id. art. 64.04. We review de novo the trial court’s ultimate

2
      In a June 6, 2013 opinion, applying the holding from State v. Holloway, 360
      S.W.3d 480 (Tex. Crim. App. 2012), this court dismissed the appeal for
      want of jurisdiction. Whitfield then filed a petition for discretionary review.
      The Court of Criminal Appeals granted the petition and agreed that the
      jurisdictional question was controlled by Holloway, but decided to overrule
      that case. Whitfield v. State, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).
      The Court then remanded the cause to this court for review on the merits.

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rulings under Article 64.04. Frank v. State, 190 S.W.3d 136, 138 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d). We review the entire record to determine

whether the appellant established, by a preponderance of the evidence, that there is

a reasonable probability that he would not have been convicted because of

favorable DNA test results. Id. (citing Smith v. State, 165 S.W.3d 361, 365 (Tex.

Crim. App. 2005)).

      To demonstrate a “reasonable probability” that he would not have been

convicted under Article 64.04, an appellant 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). A reasonable probability of innocence

exists when there is a probability sufficient to undermine confidence in the

outcome of the trial. Id.; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999); Bates v. State, 177 S.W.3d 451, 453 (Tex. App.—Houston [1st Dist.] 2005,

pet. ref’d). Test results that “merely muddy the waters” do not show a reasonable

probability of innocence. Rivera, 89 S.W.3d at 59 (quoting Kutzner v. State, 75

S.W.3d 427, 439 (Tex. Crim. App. 2002)).

      “A ‘favorable’ DNA test result must be the sort of evidence that would

affirmatively cast doubt upon the validity of the inmate’s conviction.” Ex parte

Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011). If the DNA test results

fail to demonstrate a reasonable probability of appellant’s innocence, then the trial

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court does not err in finding the DNA test results “not favorable.” Johnson v. State,

183 S.W.3d 515, 520 (Tex. App.—Houston [14th Dist.] 2006, pet. dism’d).

Inconclusive results do not establish a reasonable probability of innocence. Baggett

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

      In this case, Mohler was presented with hairs known to have come from

Whitfield, his accomplices, and the complainant. She was also presented with hairs

found on the clothing of the complainant, her underwear and shirt, and the

underwear of one of the accomplices. Mohler did not analyze the hair known to

have come from Whitfield or his accomplices. She extracted DNA from the hair

found on the complainant’s underwear, the hair found on the complainant’s shirt,

one of the hairs found in the underwear of accomplice Brown, and the hair known

to have come from the complainant. Mohler was unable to obtain a DNA profile

from the hair found on the complainant’s underwear or the hair found in

accomplice Brown’s underwear. She obtained a partial DNA profile from the hair

known to have come from the complainant and a partial DNA profile from the hair

found on the complainant’s shirt. These profiles were consistent with each other;

the complainant could not be excluded at four loci.

      A jury would have learned little from Mohler’s testimony; only that a hair

found on the complainant’s shirt belonged to her, and that a trained technician was

unable to obtain DNA profiles from hairs found on the underwear of the

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complainant and one of Whitfield’s accomplices. Neither fact is probative of

whether Whitfield raped the complainant as alleged. The results of the testing thus

do not establish a reasonable probability that had they been available at his trial,

Whitfield would have not been convicted. See Gutierrez, 337 S.W.3d at 892.

Whitfield’s issue is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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