       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00109-CR




                                 In re Clarence Bob Hamilton




       FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
           NO. 33,236, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Clarence Bob Hamilton is serving the life sentence imposed in 1984 following his

conviction for aggravated sexual assault.1 In September 2005, he filed a pro se motion for forensic

DNA testing, and an attorney was appointed to represent him. See Tex. Code Crim. Proc. Ann. art.

64.01 (West Supp. 2005). On February 7, 2006, after considering the State’s response to the motion

and Hamilton’s reply to the State’s response, the district court overruled the motion. This appeal

followed.

               There is no dispute regarding the underlying facts, which we discussed in our 1986

opinion. Two black men wearing gloves and masks, one armed with a screwdriver, entered the

complainant’s house at about 3:00 a.m. The intruders beat the complainant into unconsciousness.

She regained consciousness at about 7:45 a.m. and made her way to a neighbor’s house. During



   1
    The conviction was affirmed by this Court. Hamilton v. State, No. 03-84-00331-CR (Tex.
App.—Austin Jan. 22, 1986, no pet.) (not designated for publication).
treatment at the hospital emergency room, it was discovered that the complainant had been sexually

assaulted. Tests of seminal fluid recovered from the complainant’s body showed that it had been

deposited by a person having type B blood. Fifteen percent of the black population, including

Hamilton, have this blood type. Later that same day, Hamilton sold two items of furniture taken

from the complainant’s house. A locket also stolen by the intruders was found in Hamilton’s

residence following his arrest. The trial court authorized Hamilton’s conviction for sexual assault

as either the primary actor or as a party, and this Court found the evidence to be legally sufficient to

sustain the jury’s finding of guilt. The second intruder was never identified.

                According to the State’s response, six items of evidence containing biological

material, including the rape kit, remain in the State’s possession, and it is possible that DNA tests

can be successfully performed even after twenty-two years. In its order denying testing, the trial

court found that Hamilton failed to establish by a preponderance of the evidence that he would not

have been convicted if exculpatory results were obtained through DNA testing. See id. art.

64.03(a)(2)(A); see also Smith v. State, 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2004) (DNA

testing applicant must prove there is 51 percent chance that he would not have been convicted if test

results were favorable). Hamilton’s sole point of error challenges this conclusion. Because this is

a mixed question of law and fact that does not turn on credibility, we conduct a de novo review.

Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

                Hamilton argues that an exculpatory DNA test result would conclusively establish

that he was not the person who sexually assaulted the complainant, and that he could not be

convicted as a party to the offense in the absence of direct evidence that he encouraged, directed, or



                                                   2
aided the assailant. See Tex. Pen. Code Ann. § 7.02 (West 2003). But as this Court held on original

submission, the only reasonable inference that can be drawn from the evidence is that the

complainant was sexually assaulted by one of the burglars.           Hamilton’s possession of the

complainant’s property supports an inference that he was one of the burglars, and his various efforts

to explain away his possession of the stolen property were shown to be false. An item of stolen

property was retrieved from his residence. Contrary to Hamilton’s argument, the evidence would

support his conviction as a party to the sexual assault even if the DNA tests were exculpatory. In

light of the competent evidence supporting a finding of Hamilton’s guilt as a party to the offense,

he did not establish by a preponderance of the evidence that he would not have been convicted if

exculpatory results were obtained through DNA testing.

               The point of error is overruled, and the district court’s order is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: September 19, 2006

Do Not Publish




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