                                 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,



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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.

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

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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.




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