








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,062


JACKIE BARRON WILSON, Appellant

v.


THE STATE OF TEXAS




ON APPEAL FROM THE CRIMINAL DISTRICT COURT NUMBER THREE 
DALLAS COUNTY



 Holcomb, J., delivered the opinion of the Court, in which Keller, P.J.,
Meyers, Keasler, Hervey, and Cochran, JJ. join.  Johnson, J., filed a concurring
opinion.  Price and  Womack, JJ., dissent.

O P I N I O N


	On January 21, 2006, appellant filed a motion for rehearing.  We overrule appellant's
request for rehearing, withdraw our initial opinion, and issue this corrected opinion in its
stead.
	In 1989, appellant was convicted of capital murder and sentenced to death.  On direct
appeal, a majority of this Court reversed the judgment based on an error in jury selection. 
Wilson v. State, 863 S.W.2d 59, 60 (Tex. Crim. App. 1993).  The cause was remanded to the
trial court, and in 1994, appellant was again tried and convicted of capital murder.  Pursuant
to the second jury's answers to the special issues, appellant was again sentenced to death. 
On direct appeal from the second conviction and death sentence, we affirmed the judgment
of the trial court, and the United States Supreme Court denied appellant's writ of certiorari. 
Wilson v. State, No. 71,947 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 829 (1979).  Both
appellant's state and federal writs of habeas corpus were denied.  Ex parte Wilson, WR-40,438-01 (Tex. Crim. App. 1999) (not designated for publication); Wilson v. Cockrell, 2003
U.S. App. Lexis 15932 (2003), cert. denied sub nom., Wilson v. Dretke, 2004 U.S. Lexis
1156 (2004).  Appellant is before this Court now on direct appeal from the trial court's denial
of his request for post-conviction DNA testing under Chapter 64 of the Code of Criminal
Procedure.  We will affirm. 
	Our holding requires a thorough recitation of the facts.  The victim, who we will refer
to by her nickname Maggie, was a five-year-old girl.  On the morning of November 30, 1988,
Maggie's body was found face-down on the side of a road in a secluded area of Grand
Prairie.  Her shorts had been pulled down, exposing her buttocks.  It was immediately
apparent that she had been run over by a car.  A further examination revealed that she had
been both vaginally and anally raped, strangled, and suffocated.  There were tire marks on
her body which reflected two distinct tire patterns.  A pair of semen-stained panties were
found near Maggie's body.
	Investigators discovered that Maggie, who lived in an apartment complex with her
mother, brother, and a live-in baby sitter, (1) had been abducted from her bedroom at night.  The
window in her bedroom had been broken from the outside.  Several pieces of glass recovered
from inside and outside Maggie's bedroom had appellant's fingerprints on them.  
	Several witnesses testified that they saw appellant driving a red spray-painted Mercury
Cougar on the night of the murder, and in a statement he gave police, appellant admitted to
driving the car that evening.  The two types of tire tracks found on Maggie's body were
consistent with the two types of tires on the Cougar. (2)  Thirty-eight human hairs, which were
found to be microscopically consistent with Maggie's hair, were recovered from the
undercarriage of the Cougar, and fibers mixed in with those hairs were consistent with the
Cougar's carpet fibers.  Nineteen additional hairs were recovered from inside the Cougar,
and they were found to be consistent with Maggie's hair.  A chest or pubic hair recovered
from Maggie's genitalia was consistent with a racial group that includes Hispanics; appellant
is Hispanic.  
	Additional evidence in support of the State's theory involved a similar crime
committed by appellant the same evening that Maggie was murdered.  Namely, an additional
complainant from the same apartment complex testified that appellant broke into her
apartment and sexually assaulted her as she slept on the couch.  When she awoke, she
ordered appellant to leave.  The complainant testified that it appeared that appellant had
entered through a window.  He offered her drugs in exchange for sex; declining, she again
ordered appellant to leave, which he did. 
	There was also testimony from several witnesses who saw appellant drive toward the
apartment complex (instead of heading home in the other direction) just before midnight the
evening of Maggie's murder.  These witnesses further testified that appellant had been
drinking heavily and using cocaine before he departed.  When investigators were given
appellant's name by another child living in the apartment complex, a police officer went to
appellant's residence to question him.  Upon the officer's arrival, appellant fled.  
	In sum, there was ample physical and circumstantial evidence tying appellant to the
murder; he was placed at the scene of the murder; he confessed to driving the red spray-painted car that ran over Maggie's body; and he committed a similar sex crime, using the
same method (entering through a window), just before abducting Maggie. (3) 
	Despite the overwhelming evidence connecting appellant to the kidnapping and
murder of Maggie, appellant requested that the trial court order additional testing of certain
pieces of evidence, including the hair evidence, the anal swab and smear, blood, and tissue
samples.  The trial court denied his request, finding that "the defendant has failed to meet the
requirements of Chapter 64 for forensic DNA testing."  
	Appellant appeals the trial court's ruling to this Court and complains (1) that some of
the State's biological evidence, which it admits is still in its possession and has never been
tested, would exonerate appellant, and (2) that had the more "sophisticated and
discriminating" forms of DNA testing been available during appellant's second trial, he
would not have been convicted.  Specifically, appellant avers that the 2003 amendments to
Chapter 64 have "abrogated this Court's more onerous construction of Article
64.03(a)(2)(A)," and if the testing were to show that "it was all the DNA of some other
perpetrator, not Wilson, then it is at least more likely than not that Wilson would not have
been convicted."  See Act of May 9, 2003, 78th Leg. R.S., ch. 13, § 3, 2003 Tex. Gen. Laws
16; Tex. Code Crim. Proc Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2005).  
	The State responds that appellant is not entitled to additional DNA testing because
identity was not an issue in this case, and appellant would not be able to show that he would
not have been convicted if the additional testing were performed.  The parties agree that our
review is de novo.  See, e.g., Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). 
Applying a de novo standard of review, we conclude that appellant is not entitled to new
testing under Chapter 64.  Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003).
	To be entitled to post-conviction DNA testing under Chapter 64 of the Code of
Criminal Procedure, appellant bears the burden of establishing, by a preponderance of the
evidence, that he "would not have been convicted if exculpatory results had been obtained
through DNA testing."  See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp.
2005); Smith v. State, 165 S.W.3d 361, 363-64 (Tex. Crim. App. 2005). (4)  Appellant must also
show that identity was or is an issue in the case.  See Tex. Code Crim. Proc. Ann. art.
64.03(a)(1)(A)(i).
	The State argues that appellant is not entitled to the relief he seeks because identity
is not and was not an issue in this case. (5)  This is a point well-taken because appellant has
never challenged the issue of identity.  In none of appellant's various direct and post-conviction appeals, in neither of his trials, nor here, does appellant claim that the State was
prosecuting the wrong man.  See id. art. 64.03(a)(1)(B).  Rather, he avers he is entitled to new
testing or retesting of evidence because there may have been an additional man involved in
the abduction, rape, and murder of Maggie.  Even if there was another person who aided
appellant and has successfully evaded prosecution after all these years, it would have no
effect whatsoever on appellant's conviction and sentence.  See Tex. Pen. Code Ann. §
7.02(a)(2).  In addition to the fingerprint evidence implicating appellant, there was ample
evidence from a variety of sources showing that appellant had a history of abduction and
sexual assault, that he was driving the car which ran over Maggie, that he was seen at the
apartment complex shortly before Maggie was abducted, and he committed a sexual assault
against another victim at the same apartment complex on the same evening.  Even if we
accept the premise that identity is an issue, the above-mentioned overwhelming evidence
shows that the trial court did not err in denying relief.  See id. art. 64.03(a)(1)(B) (2005);
Skinner v. State, 122 S.W.3d at 813; see e.g., Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim.
App. 2002). 
	As noted, appellant's conviction of capital murder was based on murder committed
in the course of a kidnapping.  See Tex. Pen. Code Ann. § 19.03(a)(2).  Therefore, whether
testing on the semen, hairs, or the anal swab would indicate that Maggie was raped by
another person, presumably a party to the kidnapping, would be wholly irrelevant.  See
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Tex. Pen. Code Ann. §
7.02(a)(2). (6) 
	Similarly, appellant's request to test the blood found in Maggie's bedroom and on
some of the glass recovered from inside and outside her bedroom, again, would not affect the
result in this case.  That is, if newer, more discriminating DNA testing showed that another
perpetrator was involved, that finding would not exonerate appellant because it would show
nothing more than there was another party to the crime, at best.  See Tex. Pen. Code Ann.
§ 7.02(a)(2); Whitaker v. State, 160 S.W.3d 5, 9 (Tex. Crim. App. 2004).  Appellant's
fingerprints were located on the panes of glass in a way that indicated he removed the glass
from its frame (finger and thumb prints placed on opposite sides of the perimeter of the pane
of glass).  This evidence, coupled with the fact that Maggie's babysitter testified that he had
never allowed appellant into Maggie's room, placed appellant at the scene of the abduction. 
Thus, further testing of the blood found in Maggie's room would not be favorable to
appellant.  See Whitaker, 160 S.W.3d at 9.  
	Blood-typing tests  were performed on some of the blood stains found in Maggie's
room and they matched Maggie's blood-type.  See id.  Similarly, if DNA testing showed the
remaining blood was not appellant's or Maggie's, but that of some other person, the
fingerprint evidence independently established that appellant abducted Maggie from her
bedroom.  This evidence is sufficient to show that appellant could not have met his burden
for DNA testing under the more relaxed standard of Chapter 64.  See Act of May 9, 2003,
78th Leg. R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16; Tex. Code Crim. Proc Ann. art.
64.03(a)(2)(A) (Vernon Supp. 2005). 
	Also wholly without merit is appellant's assertion that newer tests should be
conducted on the 19 hairs found inside and 38 hairs found lodged outside the car appellant
was seen driving the night of the murder.  The initial tests, conducted near the time of the
second trial, showed that all of the recovered hairs were consistent with Maggie's hair.  In
addition to all the other evidence inculpating appellant, a newer more discriminating test on
these hairs would not produce evidence that would exonerate appellant.  In any event, if the
tests showed that the hairs belonged to some other person, evidence still supported that
appellant was at the scene of the abduction and he was driving the car that ran over Maggie. (7)
Kitchens v. State, 823 S.W.2d at 258.
	In conclusion, even if we were to order that all the evidence be retested, and all the
results were consistent with appellant's theory (that the tests would show an additional
perpetrator was involved in the crime), appellant could not meet his burden of establishing,
by a preponderance of the evidence, that he would not have been convicted of murder in the
course of kidnapping.  Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp.
2005).  We affirm the ruling of the trial court.
DELIVERED:  MARCH 1, 2006
PUBLISH
1.   Appellant was acquainted with the family, because he was a friend of the live-in
babysitter.  Evidence showed that appellant had visited Maggie's apartment before and, in at least
one instance, appellant "exhibited undue interest in Maggie at a birthday party prior to the
murder," as noted by the State in its brief.  Moreover, evidence was admitted showing that
appellant was familiar with the apartment complex because he had resided there sometime before
the murder.  The live-in babysitter testified that he had never allowed appellant into the
children's bedrooms.  The live-in babysitter was eliminated as a suspect based on hair, blood,
and fingerprint samples he voluntarily submitted to investigators prior to trial.
2.   The evidence at trial showed that there was one Nitto brand tire and three Goodyear
brand Eagle GT tires on the Cougar.  There were fifteen points of comparison between the Nitto
tire and the tread print on Maggie's leg.  There were six points of comparison between the tread
print on Maggie's back and the Goodyear tires.  
3.   Additional evidence was admitted at the punishment phase of trial showing that
appellant had previously abducted and sexually assaulted a woman by drugging her drink while
patronizing a bar in Lubbock.
4.   At oral argument and in his brief on the merits, appellant argued that the legislative
amendments to Chapter 64 would permit the additional testing he now requests, where before,
under our holding in Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002), he would not
have been entitled to the tests.  As we explained in Smith, the Legislature amended Chapter 64 in
response to our holding in Kutzner and relaxed the standard to a preponderance of the evidence. 
Smith, 165 S.W.3d at 363-64; see Act of May 9, 2003, 78th Leg. R.S., ch. 13, § 3, 2003 Tex.
Gen. Laws 16.  But even when considering the undisputed facts of this case under the more
relaxed standard, appellant could not have met his burden of proof.  That is, the evidence does
not preponderate in appellant's favor that he would not have been convicted if the blood, hair,
semen, or tissue samples produced exculpatory results.  See Whitaker v. State, 160 S.W.3d 5, 9
(Tex. Crim. App. 2004).  
5.   Citing to In re McBride, 82 S.W.3d 395, 397 (Tex. App.-Austin 2002, no pet.) (identity
not at issue where prior DNA test inculpated McBride, even though not admitted into evidence);
Hart v. State, 2004 Tex. App. Lexis 1006 at *9 (Tex. App.-San Antonio 2004, no pet.) (not
designated for publication) (identity not at issue where defendant's fingerprints at the crime
scene); Eubanks v. State, 113 S.W.3d 562, 566 n.1 (Tex. App. -Dallas 2003, no pet.) (noting that
identity was not an issue at trial where victim was defendant's daughter); Morris v. State, 110
S.W.3d 100, 103 (Tex. App.-Eastland 2003, pet. ref'd) (holding identity not at issue where
victim knew defendant because defendant was victim's mother's long-term boyfriend).  The
State also cites to cases where courts have held that post-conviction DNA testing is not
obligatory where the appellant did not challenge the sufficiency of the evidence on appeal, as
appellant chose not to do here.  See Green v. State, 100 S.W.3d 344, 345 (Tex. App.-San
Antonio 2002, no pet.) (holding identity not at issue where appellate challenge to sufficiency of
the evidence directed to an element other than identity); McBride, 82 S.W.3d at 397 (noting
same).  The State further points out that applicant as much as conceded the issue of identity in his
state application for habeas corpus relief in writing: "The forensic evidence circumstantially
connected him with Maggie's death by showing he apparently handled the broken glass from her
bedroom window, that it was he who anally raped her, and that she was run over by the car he
was driving that night."
6.   It is important to note that the anal swab appellant wants re-tested had already been
tested, and that result showed a DNA profile matching appellant's DNA profile--only 1 in 2083
Hispanics would match this profile.  What is more, appellant has not explained how the newer
more discerning DNA test would cast doubt on the reliability of the earlier test.
7.   Moreover, it is simply commonsensical that the hairs recovered from the undercarriage
of the Cougar belonged to Maggie, as tire-print evidence firmly established that she was run over
by the Cougar.  The same logical conclusion can be drawn about the tissue found underneath the
car that appellant wants tested.  Because it was firmly established that the Cougar ran over
Maggie's body, it would be ludicrous to test the tissue sample evidence.  That is, due to the other
evidence firmly establishing appellant's guilt, appellant cannot show that he would not have been
convicted if the testing on the hair and tissue samples produced exculpatory results.  See Tex.
Code Crim. Proc. Ann. 64.03(a)(2)(A)(Vernon Supp. 2005). 
