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



