                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00166-CR


JOHNNIE DUNNING                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 0632435D

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                                   OPINION

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                                I. INTRODUCTION

      Appellant Johnnie Dunning raises a single point challenging the “not

favorable” finding made by the trial court following post-conviction DNA testing

pursuant to chapter 64 of the Texas Code of Criminal Procedure.           For the

reasons set forth below, we will sustain Dunning’s point, vacate the trial court’s

“not favorable” finding, and remand this case to the trial court for an entry of a
finding that had the post-conviction DNA test results attained by Dunning been

available during the trial of the offense, it is reasonably probable that Dunning

would not have been convicted.1

                             II. FACTUAL BACKGROUND

      The evidence and testimony presented at the chapter 64 DNA hearing

show the following factual background. In 1999 on the morning of Dunning’s jury

trial for the offense of aggravated sexual assault of a child by inserting his penis

into the complainant’s anus, after the jury had been sworn and Dunning had

entered a plea of “not guilty,” the trial court granted the State’s motion in limine to

      1
        The trial court’s May 17, 2017 order finds that “the post-conviction forensic
DNA testing results do not cast affirmative doubt on the defendant’s guilt, and
are, thus, NOT FAVORABLE, as defined by article 64.04 of the Texas Code of
Criminal Procedure.” We note that article 64.04 was amended in 2003 (prior to
Dunning’s 2010 motion for DNA testing and prior to the trial court’s May 17, 2017
order) to eliminate the use of the word “favorable.” See Act of April 3, 2001, 77th
Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of May 9,
2003, 78th Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16 (current version at
Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2017)). Article 64.04 no
longer uses this standard; under the current version of article 64.04, 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.” Tex. Code Crim. Proc. Ann. art.
64.04. Thus, to the extent, if any, the trial court’s “not favorable” finding differs
from a finding that had the results been available during the trial of the offense it
is not reasonably probable the person would not have been convicted, because
we review de novo this ultimate application-of-law-to-the-facts question not
involving credibility and demeanor, we apply the current standard despite
referring to the trial court’s finding as “not favorable.” See Whitfield v. State, 430
S.W.3d 405, 407 & n.1 (Tex. Crim. App. 2014) (recognizing trial court’s
“unfavorable findings” equated to finding under article 64.04 that there was no
reasonable probability that defendant would not have been convicted had the
results been available at his trial); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim.
App. 2002) (stating that this ultimate question is reviewed de novo on appeal).


                                          2
exclude evidence of convictions by registered-sex-offender Lorne Clark and to

prevent Dunning from making any arguments or statements that Clark was the

actual assailant. Clark was the stepfather of, and lived in an apartment with, the

mentally impaired and hearing impaired twelve-year-old male complainant.

Dunning’s planned defense at trial was that Clark—not Dunning—had in fact

perpetrated the offense, and that Clark had influenced and manipulated his

stepson to identify Dunning––“the black man”—as the perpetrator in order to

steer the investigation away from himself.2 Dunning explained that his defense


      2
        At the chapter 64 DNA hearing, Dunning’s trial counsel, David Pearson,
testified, in part, as follows:

            Q. If you would, give us kind of a general -- and like I told the
      Judge in front of you a minute ago, I’m not asking to try this case. I
      just want to tell the Judge basically what the allegations were and
      kind of what the case was about in about 30 words or less.

             [PEARSON]: Well, the young victim, and I won’t use his
      name, I don’t remember whether he was -- a pseudonym was in the
      indictment or not, but he said that in an apartment complex laundry
      room allegedly the black man had had sex with him, but the witness
      that claimed that he heard him say that was a registered sex
      offender living in the same apartment that had been convicted of
      aggravated sexual assault in another state and had moved to Texas
      and moved into the same family home and was also convicted in this
      county a month before Mr. Dunning for aggravated sexual assault of
      two children in the same apartment, and he was a witness.

             Q. All right. Let me ask you this. Did you have a defense that
      you’d aligned in this case and gone over with Mr. Dunning about
      what y’all were going to try to defend this case with had he gone to
      trial?

            [PEARSON]: Yes, and that was our defense.


                                        3
would be based on the facts that: Clark had been previously convicted of first

degree sexual abuse of Clark’s stepdaughter in Arkansas; about a month after

Dunning’s arrest, Clark had been arrested for sexual assault of two other female

children who lived in the same apartment complex;3 and, a few weeks before



            Q. Was that somebody else had committed the offense, had
      an opportunity to be around the victim and was a registered sex
      offender?

              [PEARSON]: Well, and that plus the fact that the victim, it was
      in the report, was mentally challenged and deaf. He would have
      been in my opinion easy to manipulate, and you have a convicted
      sex offender that would be a master manipulator of children by
      definition, and he wasn’t used as an outcry, but he was the original
      witness number two that said that’s what the child said to me. I got
      raped. The black man raped me.

           Q. Okay. Now, and ultimately this child, a victim, picked Mr.
      Dunning out of a photo spread; is that correct?

            [PEARSON]: Correct.

           Q. And so it was your defense, then, that you were trying to
      present to the Court essentially that someone else who was a bad
      person had potentially kind of steered the investigation away from
      himself and was a sex offender in his own right; is that correct?

             [PEARSON]: Well, that, and in my opinion that plus sloppy
      police work.
      3
        Although it was suggested during the course of these proceedings that the
two other female victims were the male complainant’s siblings and although
neither Defendant nor the State appeared to dispute the suggestion, our review
of the record leads us to believe that the two other female victims were living in
the same apartment complex but were unrelated to the complainant. In either
case, the record reflects that Clark was convicted of sexual assault of two other
children, occurring during the same time period and at the same apartment
complex as the instant sexual assault.


                                        4
Dunning’s trial was scheduled to start, Clark had pleaded guilty to the sexual

assault of the two other female children.

      In anticipation of presenting his defense at trial that Clark was the

perpetrator of the sexual assault on the complainant, Dunning had filed notice of

his intent to offer copies of Clark’s prior sexual abuse conviction in Arkansas.

When the trial court ruled that Dunning would not be able to present this

evidence, Dunning entered into a plea bargain. Dunning faced a life sentence

because of two prior credit card abuse convictions that are no longer classified

as felonies.   When the State agreed to the minimum sentence of 25 years’

confinement and the trial court agreed to grant Dunning permission to appeal the

adverse ruling concerning the Lorne Clark evidence and arguments and also

permitted Dunning to make a bill of exception, Dunning entered a guilty plea

conditioned on these agreements.4

      Although the State possessed a sexual assault kit containing various

swabs, as well as the complainant’s white shorts worn during and after the

assault,5 no DNA testing had been conducted on any of the items prior to trial.6


      4
       Dunning timely filed a motion for new trial asserting that his decision to
plead guilty was an error and was done solely because the exclusion on the
morning of trial of any evidence or arguments concerning Clark—the “platform” of
his case—which had left him “frantically scrambling.” The trial court denied the
motion.
      5
        The September 3, 1996 police report, also offered into evidence at the
chapter 64 DNA hearing, established that the complainant did not bathe, wash
his genitals, or change his clothes prior to the administration of the sexual assault
kit by the Fort Worth Police Department.


                                            5
6
Pearson testified about the significance DNA testing in this case:

       Q. Was there DNA testing done in this case prior to the entry
of a plea?

      [PEARSON]: No.

      Q. To your knowledge by the State or the Defense?

     [PEARSON]: Right. Not to my knowledge, no DNA testing
was done.

     Q. There was some serology, but there wasn’t any actual
DNA testing; is that correct?

      [PEARSON]: Correct.

            ....

      Q. Have you ever tried a DNA case?

      [PEARSON]: Have I tried cases involving DNA? Yes.

       Q. In your opinion in a sexual assault case of a child who is
alleging that he’s been anally sexually assaulted, would DNA
findings on a piece of clothing the child was wearing at the time that
had DNA on the back side of the pants or the underwear, if that was
underwear that the child wore or was wearing, would that be relevant
in the guilt or innocence of the defendant potentially?

      [PEARSON]: Yes.

      Q. A no result could mean something, correct?

      [PEARSON]: Right.

      Q. Certainly if it was the Defendant in that case’s DNA, that
would be very good for the State, would it not?

      [PEARSON]: Correct.


                                  6
      In accordance with Dunning’s plea bargain conditioned on his right to

appeal the trial court’s ruling concerning the Lorne Clark evidence and

arguments, Dunning did appeal.        Seventeen years ago, this court affirmed

Dunning’s conviction, noting that the case “presented a very close question” and

that other than the complainant’s identification of Dunning in a photographic line-

up, “[n]o other evidence linked [Dunning] to the offense.” Dunning v. State, No.

02-99-00311-CR, pp. 2, 5 (Tex. App.—Fort Worth, Feb. 22, 2001, pet. ref’d) (not

designated for publication).

  III. PROCEDURAL BACKGROUND CONCERNING POST-CONVICTION DNA TESTING

      In 2010, Dunning began requesting a post-conviction DNA test pursuant to

chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.

art. 64.01 (West Supp. 2017). Ultimately, after an approximately four-year delay

for reasons not relevant here, the trial court ordered the Department of Public


            Q. And if the DNA findings were some third party unknown
      that were not the Defendant and not the perpetrator, that could also
      be relevant, correct?

            [PEARSON]: Right.

            Q. And in that last instance is it your opinion that that could be
      relevant and material in a jury finding that the person was not guilty if
      they believed all that?

            [PEARSON]: Yes. It would be relevant.

            Q. It could go either way, but it would certainly be something
      that would be relevant; would you agree with that?

            [PEARSON]: Yes, no question.


                                         7
Safety to conduct DNA testing of the complainant’s white shorts and several

additional items in the sexual assault kit but denied Dunning’s request for

counsel at that time.7

      The DPS Crime Laboratory determined the proper locations for testing and

tested portions of the white shorts but found no interpretable DNA profile. Thus,

the State moved for an entry of a not favorable finding. On June 9, 2015, the trial

court found that the lab results were inconclusive and entered a not favorable

finding. During his appeal of the June 9, 2015 not favorable finding, Dunning

was appointed counsel, and he filed a motion to dismiss his appeal, which we

granted. See Dunning v. State, No. 02-15-00222-CR, 2015 WL 5722605, at *1

(Tex. App.—Fort Worth Aug. 26, 2015, no pet.) (mem. op., not designated for

publication).

      Dunning then sought to conduct his own DNA testing and the trial court

authorized the Serological Research Institute (SERI) to conduct the testing. Amy

Lee, a forensic serologist at SERI, tested items, which included the white shorts,

items in the sexual assault kit, and various swabs.             The results and

interpretations of SERI’s testing are found in Lee’s July 18, 2016 report. Lee’s

report concerning SERI’s testing contains seven different conclusions, including

that Dunning was excluded as a donor of the DNA on all of the items tested

(conclusions 2–5) and that, in addition to DNA of the complainant, there was also


      7
       But see Tex. Code Crim. Proc. Ann. art. 64.01(c).


                                        8
DNA from a different person on the “crotch swab” of complainant’s white shorts

(conclusion 4).8 Lee also concluded that both the complainant and Dunning were

excluded as contributors to the DNA on the waistband swab of the white shorts

(conclusion 5).

      The State requested that Dr. Bruce Budowle review SERI’s testing and the

conclusions in Lee’s report. The State filed an affidavit from Dr. Bodowle in

which he agreed with all of Lee’s conclusions except for part of conclusion 5,

which excluded the complainant as a possible contributor of the DNA located on

the white shorts waistband swab.        Dr. Budowle stated, “While I agree that

Johnnie Dunning can be excluded as a possible contributor of the major portion

of the mixture, the victim . . . cannot be excluded as a possible contributor . . . .”

Thus, even in his disagreement about part of conclusion 5, Dr. Budowle still

agreed with Lee that none of Dunning’s DNA was found on any of the items

tested.

      On February 28, 2017, the trial court conducted a chapter 64 DNA hearing

and received testimony from Dunning’s trial counsel, Amy Lee, Dr. Budowle, and

Dunning. As set forth in the footnoted quotations from Dunning’s trial counsel’s

testimony at the chapter 64 DNA hearing, Dunning’s planned trial defense was to

suggest that Clark––who was a registered sex offender, who had been convicted

in Arkansas of sexual abuse of his stepdaughter, who had been convicted of

      8
        It was suggested at oral argument that this third-party DNA was
specifically male DNA.


                                          9
sexual assault of two other children who lived in complainant’s apartment

complex, and who had helped the complainant report the offense and identify

Dunning as the assailant––was actually the perpetrator.        The trial court’s

morning-of-trial ruling excluding this evidence after Dunning had pleaded not

guilty led to the plea bargain and Dunning’s guilty plea. Dunning’s trial counsel

opined that DNA findings on the complainant’s clothing including a third person,

not the victim and not Dunning, and excluding Dunning as a contributor to all

DNA tested, would have been material and relevant to Dunning’s guilt or

innocence but that there was no DNA testing done prior to Dunning’s guilty plea.

      The trial court also heard testimony from Amy Lee and Dr. Budowle. Both

Lee and Dr. Budowle agreed that Dunning’s DNA was not found present on any

of the items tested.9 Lee was asked about her conclusions, and in particular, her

findings about the complainant’s white shorts:


      9
      The State conceded that the post-conviction DNA testing excluded
Dunning as a contributor of any DNA found on any of the items tested:

             [PROSECUTOR]: I don’t think -- I don’t think anybody is
      disputing that Mr. Dunning’s DNA is not on any of these items. I
      think Ms. Lee said that; I think Dr. Budowle said that.

            ....

            [DEFENSE COUNSEL]: He’s [Dunning] excluded in more
      than one place, and that’s not in dispute. I mean he is absolutely
      excluded as being the contributor to the DNA anywhere in this case.

            THE COURT:         And that’s -- you do agree with that,
      [Prosecutor]?


                                       10
      Q. So what you’re saying in summary is the DNA on the victim’s
      shorts, and this is -- if we go back and look, these are shorts that the
      swab actually came from -- where was the swab? What part of the
      underwear did the swab touch? It’s the rear area of the pants; is
      that right?

      A. I believe it was described as ‘crotch.’

      Q. And that sample there has two people’s DNA, right?

      A. At least, yes.

      Q. One of them belongs to the victim, right?

      A. Correct.

      Q. And the other one does not belong to Johnnie Dunning; is that
      right?

      A. That’s correct.

Thus, Lee’s testimony confirmed that DNA existed on the complainant’s white

shorts that was not attributable to Dunning or to the complainant.10


            [PROSECUTOR]: Yes, I do agree with that.
      10
        Conclusions 4 and 5 set forth in Lee’s report provide:

      4. A mixture of at least two individuals was obtained from the shorts
      crotch swab (02-01-AB, item 4-4) and the shorts crotch extract (02-
      01 AB, item 5-2). Victim RFF is included as the major contributor to
      both mixtures and the chance that another random person unrelated
      to him could be similarly included is approximately one in one billion
      for items 4-4 and 5-2. Johnnie Dunning is excluded as a possible
      contributor to both mixtures.

      5. A mixture of a least two individuals was obtained from the shorts
      waistband swab (02-01-AA, item 4-3). Victim RRF and Johnnie
      Dunning are both excluded as possible contributors to the major
      portion of this mixture. There is insufficient information in the minor
      component of this mixture for any conclusions to be made.


                                        11
      With only slight variances, Dr. Budowle’s live testimony reaffirmed his

affidavit, which provided that he was in agreement with SERI’s conclusions

except for part of conclusion 5. Dr. Budowle testified live that he was “cautious”

concerning SERI’s conclusion 4 although he did not disagree outright with it. Dr.

Budowle also expressed some disagreement on how SERI performed its

statistical analysis, but stopped short of any type of reliability challenge to the

protocols utilized by SERI in obtaining statistical data. Ultimately, Dr. Budowle

testified on cross-examination:

      [DEFENSE COUNSEL]: Q. But the fact of the matter is you don’t
      have any dispute that this little boy’s underwear has got his DNA on
      it and got somebody else’s DNA on it, right?

      A. I don’t dispute that, no.

      [DEFENSE COUNSEL]: Q. And that somebody else’s DNA is not
      Johnnie Dunning’s?

      A. I don’t dispute that, no.

Dunning testified that identity was an issue at the trial.

      After hearing and considering all of the above evidence, the trial court

entered a “not favorable” finding under article 64.04 after finding that the post-

conviction DNA testing results did “not cast affirmative doubt on the defendant’s

guilt[.]” The trial court did not enter separate findings.

                              IV. STANDARD OF REVIEW

      When reviewing a trial court’s finding in a chapter 64 post-conviction-DNA-

test proceeding as to whether, had the results been available during the trial of



                                          12
the offense, it is reasonably probable that the person would not have been

convicted, we apply the same standard of review applied to review a trial court’s

ruling granting or denying DNA testing under article 64.03. See Tex. Code Crim.

Proc. Ann. arts. 64.03, 64.04 (West Supp. 2017); Asberry v. State, 507 S.W.3d

227, 228–29 (Tex. Crim. App. 2016) (explaining that “we do not see any reason

to treat a review of a ruling pursuant to Article 64.04 differently than a ruling

pursuant to Article 64.03”). That is, we use the familiar bifurcated standard of

review articulated in Guzman v. State: we give almost total deference to the

judge’s resolution of historical fact issues supported by the record and

applications-of-law-to-fact issues turning on witness credibility and demeanor and

we review de novo all other application-of-law-to-fact questions. 955 S.W.2d 85,

89 (Tex. Crim. App. 1997); see also Reed v. State, No. AP-77,054, 2017 WL

1337661, at *6 (Tex. Crim. App. Apr. 12, 2017), petition for cert. filed, (U.S. Feb.

1, 2018) (No. 17-1093); Rivera, 89 S.W.3d at 59. We review the entire record,

that is, all of the evidence that was available to, and considered by, the trial court

in making its ruling, including testimony from the original trial.     Asberry, 507

S.W.3d at 228. The ultimate question of whether a reasonable probability exists

that exculpatory DNA tests would have caused the appellant to not be convicted

“is an application-of-the-law-to-fact question that does not turn on credibility and

demeanor and is therefore reviewed de novo.” See Rivera, 89 S.W.3d at 59.




                                         13
     V. THE LAW CONCERNING FINDINGS ON POST-CONVICTION DNA TESTING

      The purpose of post-conviction DNA testing is to provide a means through

which a defendant may establish his innocence by excluding himself as the

perpetrator of the offense of which he was convicted. See Blacklock v. State,

235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007). Chapter 64 of the code of

criminal procedure provides that a convicted person may submit a motion to the

convicting court to obtain post-conviction DNA testing. Tex. Code Crim. Proc.

Ann. art. 64.01; Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011).

If such DNA testing is conducted, 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. Tex. Code Crim. Proc. Ann. art. 64.04; see also Solomon v. State,

No. 02-13-00593-CR, 2015 WL 601877, at *4 (Tex. App.—Fort Worth Feb. 12,

2015, no pet.) (mem. op., not designated for publication). The defendant may

appeal a trial court’s finding that even if DNA testing results had been available

during the trial of the offense, it is not reasonably probable that the person would

not have been convicted. See Tex. Code Crim. Proc. Ann. art. 64.05 (West

2006); Whitfield, 430 S.W.3d at 409.

      To be entitled to a finding that, had the results been available during the

trial of the offense, it is reasonably probable that the person would not have been

convicted, “[t]he defendant must prove that, had the results of the DNA test been

available at trial, there is a 51% chance that the defendant would not have been


                                        14
convicted.”   Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d); Medford v. State, No. 02-15-00055-CR, 2015 WL

7008030, at *3 (Tex. App.—Fort Worth Nov. 12, 2015, pet. ref’d) (mem. op., not

designated for publication).    A defendant is not required to establish actual

innocence to be entitled to a favorable finding. See Glover, 445 S.W.3d at 862.

                                   VI. ANALYSIS

      On appeal, the State argues that the lack of Dunning’s DNA on any of the

items tested does not establish Dunning’s innocence and that even if the DNA

test results are exculpatory, Dunning’s judicial admission and the complainant’s

identification of Dunning from a photographic line-up are sufficient evidence of

Dunning’s guilt to preclude a finding that had the results of the DNA test been

available at trial, there is a 51% chance that the defendant would not have been

convicted. Concerning the results of the DNA tests, the State does not mention

or address the DNA testing of the “shorts crotch swab” or the “shorts crotch

extract” test results set forth in Lee’s conclusion 4––that a mixture of at least two

individuals’ DNA was found on both the “shorts crotch swab” and the “shorts

crotch extract” and that although the complainant was the major contributor to

both mixtures, Dunning was excluded as a contributor to both mixtures. Instead,

the State focuses its arguments on the “waistband swab” DNA test results set

forth in Lee’s conclusion 5 to argue that “it can be presumed that the trial court

agreed that [the complainant] could not be excluded as a potential contributor to




                                         15
the DNA profile obtained from the waistband swab, and that the presence of

minor DNA profiles did not establish an alternate perpetrator.”

      Dunning, on the other hand, focuses his arguments on the “shorts crotch

swab” and the “shorts crotch extract[,]” Lee’s conclusion 4, and Dr. Budowle’s

agreement with Lee’s conclusion 4 that the “shorts crotch swab” contained a

mixture of the complainant’s DNA and the DNA of another person who was not

Johnnie Dunning.     Dunning argues that—because the complainant was still

wearing the white shorts when he was taken to the hospital; because police

seized the shorts from the hospital; because the police report documents that the

complainant did not bathe, wash his genitals, or change his clothes, or otherwise

interrupt the “chain of custody” of the items tested; and because Lee and Dr.

Budowle agree that a third person’s DNA was found in the “shorts crotch swab”

and the “shorts crotch swab extract”—if this exculpatory DNA evidence had been

available during the trial of the offense, it is reasonably probable that Dunning

would not have been convicted.

      First, we agree with Dunning that the post-conviction DNA test results in

this case excluding him as a contributor to any DNA found on any item tested

and establishing the existence of another DNA contributor––that is not Dunning

and is not the complainant––to a mixture of DNA on the complainant’s shorts in

the “shorts crotch swab” and the “shorts crotch extract” is exculpatory. See, e.g.,

Reed, 2017 WL 1337661, at *6 (explaining that exculpatory results are

necessarily results excluding the convicted person as the donor of the material).


                                        16
This is not a case, like those relied upon by the State, where DNA evidence of

the convicted defendant is simply absent or where the DNA evidence is

inconclusive as to whether the convicted defendant was a contributor. See, e.g.,

Booker v. State, 155 S.W.3d 259, 266–67 (Tex. App.—Dallas 2004, no pet.)

(upholding trial court’s negative finding because DNA testing did not exclude

appellant as the assailant); Fuentes v. State, 128 S.W.3d 786, 787 (Tex. App.—

Amarillo 2004, pet. ref’d) (upholding trial court’s negative finding when post-

conviction DNA testing revealed DNA profile from the sperm fraction of the

semen on the victim’s panties to be consistent with a mixture of the convicted

defendant and the victim). Nor is this a case where the effect of exculpatory

DNA evidence is to merely muddy the waters. LaRue v. State, 518 S.W.3d 439,

446 (Tex. Crim. App. 2017) (“The required showing [for DNA testing] has not

been made if exculpatory test results would ‘merely muddy the waters.’”) (quoting

Rivera, 89 S.W.3d at 59). In this case, the post-conviction DNA test results do

more than merely exclude Dunning as a contributor; there is additional DNA

evidence. Both the State’s expert Dr. Budowle and the defense expert Amy Lee

agree that another person contributed DNA to the “shorts crotch swab” and the

“shorts crotch extract” and agreed that this other person was not the complainant

or Dunning.

      Concerning Dunning’s judicial confession, we note that chapter 64

expressly contemplates and authorizes post-conviction DNA testing even after a

guilty plea.   Tex. Code Crim. Proc. Ann. art. 64.03(b).    Based on the clear


                                       17
language in article 64.03, the court of criminal appeals has recognized that “[a]n

appellant who entered a guilty plea is no more, or less, entitled to a favorable

ruling on his Chapter 64 motion [for DNA testing] than one who plead[s] not

guilty.” Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Thus, the

mere fact that Dunning pleaded guilty cannot automatically render it not

reasonably probable that had the DNA results been available during trial he

would not have been convicted, or else there would be no reason to permit post-

conviction DNA testing after guilty pleas. Accord Blacklock, 235 S.W.3d at 232

(reversing trial court’s denial of post-conviction DNA testing despite defendant’s

guilty plea because “exculpatory DNA test results, excluding appellant as the

donor of this material, would establish appellant’s innocence”).         And here,

Dunning’s judicial confession must be viewed in the context of the record before

us showing the posture of his case when he made it. See Asberry, 507 S.W.3d

at 228 (instructing appellate courts that in reviewing a trial court’s article 64.04

finding, we review the entire record to determine whether appellant established

that he would not have been convicted). That posture is that the day before his

guilty plea, Dunning had entered a plea not guilty. He was prepared for a jury

trial, but on the morning of trial, any evidence of Clark’s prior convictions for

sexual abuse of his stepdaughter in Arkansas and argument concerning the

“platform” of his defense—that Clark was the actual assailant—was excluded

when the trial court granted the State’s motion in limine. So, Dunning changed

his plea to guilty and made a judicial confession to attain a plea-bargained


                                        18
sentence of the 25-year minimum because his indictment alleged two prior felony

convictions for credit card abuse and because he faced a life sentence.

      Concerning the inculpatory evidence against Dunning consisting of the

complainant’s identification of him from a photographic line-up, again, the court of

criminal appeals has recognized in the context of chapter 64 motions for post-

conviction DNA testing, following a sexual assault conviction,

      eye-witness identification of [appellant] is of no consequence in
      considering whether [appellant] has established that, by a
      preponderance of the evidence, exculpatory DNA tests would prove
      his innocence. In sexual assault cases like this, any overwhelming
      eye-witness identification and strong circumstantial evidence . . .
      supporting guilt is inconsequential when assessing whether a
      convicted person has sufficiently alleged that exculpatory DNA
      evidence would prove his innocence under Article 64.03(a)(2)(A).

Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (emphasis

added). Thus, again, the mere fact that the complainant identified Dunning in a

photographic line-up cannot automatically render it not reasonably probable that

had the DNA results been available during trial he would not have been

convicted, or else there would be no reason to permit post-conviction DNA

testing if a complainant identifies the alleged defendant. We must consider the

complainant’s identification of Dunning along with the undisputed facts that the

complainant was twelve years old, was mentally impaired and hearing impaired,

lived with Clark, and according to Dunning’s trial counsel, could have been easily

manipulated by Clark to deflect suspicion away from himself, and that Clark had




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spoken to police and reported that the complainant had said that “a black man

raped me.”

      In summary, examining the entire record, giving almost total deference to

the trial court’s resolution of disputed historical fact issues supported by the

record and applications-of-law-to-fact issues turning on witness credibility and

demeanor, the record before us reflects: that Dunning had pleaded not guilty;

that Dunning was prepared to begin trial before a jury, that Dunning signed a

judicial confession the morning of trial only after the trial court ruled he could not

present Clark’s Arkansas conviction to the jury or mention or present arguments

concerning Clark; that Dunning faced up to a life sentence and that, in exchange

for his guilty plea and judicial confession, the State agreed to the minimum 25-

year sentence; that within three weeks of his guilty plea Dunning filed a pro se

motion for new trial explaining that his decision to plead guilty was an error and

was made based on the exclusion on the morning of trial of any evidence or

arguments concerning Clark—the “platform” of his case—which had left him

“frantically scrambling”; that identity was an issue––in fact, the only issue; that

the DNA test results established the absence of Dunning’s DNA on all tested

items––including the crotch of complainant’s shorts worn during the sexual

assault and not removed until the complainant reached the hospital; that the DNA

test results established that not only was Dunning’s DNA not present in the

“shorts crotch swab,” but that another person’s DNA was present there along

with the complainant’s DNA; and that Dunning’s and the State’s experts both


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agreed that another person––who was not Dunning and not the complainant––

had contributed DNA to the “shorts crotch swab” tested and to the “shorts crotch

extract” tested.   In light of all of these facts—including Dunning’s judicial

confession and the complainant’s identification of Dunning from a photographic

lineup—applying a de novo standard of review to the application-of-the-law-to-

the-fact-issue of whether Dunning has proved that had the post-conviction DNA

test results we now have been available during the trial of the offense it is

reasonably probable that he would not have been convicted, we hold that he has

so proven by a preponderance of the evidence; that is, there is a 51% chance

that a reasonable juror would have had a reasonable doubt about Dunning’s guilt

had the current post-conviction DNA test results been available at the time of

trial. See Tex. Code Crim. Proc. Ann. art. 64.04; Glover, 445 S.W.3d at 861;

accord Routier v. State, 273 S.W.3d 241, 259 (Tex. Crim. App. 2008) (reversing

order denying DNA testing of certain items because such testing could add DNA

evidence “to the evidentiary mix” that would have corroborated appellant’s theory

of an alternate assailant and “could readily have tipped the jury’s verdict in

appellant’s favor”); State v. Long, No. 10-14-00330-CR, 2015 WL 2353017, at *3

(Tex. App.—Waco May 14, 2015, no pet.) (mem. op., not designated for

publication) (affirming a trial court’s “favorable” finding when “there was no DNA

evidence found on any evidence that matched the profile of [appellee]”);

Solomon, 2015 WL 601877, at *5 (affirming a trial court’s not favorable finding

because even though “the test results did not add any further corroboration for


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appellant’s guilt, they also did not affirmatively link someone else to the crime or

conclusively exclude appellant's commission of it”) (emphasis added).

      We sustain Dunning’s sole point.

                                 VII. CONCLUSION

      Having held that Dunning established a reasonable probability that he

would not likely have been convicted had the post-conviction DNA testing been

available at the time of trial, we sustain Dunning’s sole point of error, vacate the

trial court’s May 17, 2017 “not favorable” finding, and remand this case to the trial

court for an entry of a finding that had the post-conviction DNA test results

attained by Dunning been available during the trial of the offense, it is reasonably

probable that Dunning would not have been convicted.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, MEIER, and KERR, JJ.

PUBLISH

DELIVERED: March 1, 2018




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