
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-07-00308-CR


In re Morris C. Kennard





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 936455, HONORABLE BOB PERKINS, JUDGE PRESIDING



M E M O R A N D U M    O P I N I O N

Morris Kennard appeals the district court's order denying his motion for post-conviction forensic DNA testing.  We will affirm the order. 
Kennard was convicted of aggravated sexual assault and sentenced to thirty years in
prison.  The conviction was affirmed on appeal.  See Kennard v. State, No. 03-94-00258-CR
(Tex. App.--Austin May 3, 1995, pet. ref'd) (mem. op., not designated for publication).  Because
it is relevant to his request for DNA testing, we will briefly summarize the evidence at Kennard's
trial, as related in the Court's 1995 opinion. 
The complainant testified that she met Kennard at a nightclub.  After dancing and
drinking together at the club, they went to a nearby apartment to obtain crack cocaine.  The
complainant said that she was uncomfortable at this location because several men were there, and
one of the men asked her if she would exchange sex for drugs.  After purchasing some crack,
Kennard and the complainant drove to Kennard's apartment, where they smoked the cocaine, drank
beer, listened to music, and talked.  Kennard began to make sexual advances toward the complainant
and when she resisted, he pushed her onto a bed and began to rip off her clothes.  He put a belt
around her arm and tightened it until the blood circulation to her hand was cut off.  When the
complainant continued to resist, Kennard put the belt around her neck and tightened it until she
temporarily lost consciousness.  After sexually assaulting the complainant, Kennard left the
apartment.  She locked the door behind him and called the police.
Police officers who responded to the complainant's call for help testified that the
apartment was in disarray and there was evidence of a struggle.  The complainant was hysterical. 
At the hospital, the examining nurse observed ligature marks on the complainant's neck. 
Spermatozoa from two different men was found in the complainant's vagina.  Tests (not DNA tests)
showed that the source of the spermatozoa could have been Kennard and the complainant's fiancé,
who had been out of the city for four days when the assault occurred.
Both in a statement to the police and in his own trial testimony, Kennard admitted that
he had sexual intercourse with the complainant on the night in question but asserted that it was a
consensual act in exchange for crack cocaine.  Kennard also said that the complainant performed oral
sex on two men at the first apartment, William Wright and Roshaan Trappio, in exchange for
cocaine.  Trappio refused to testify at Kennard's trial; Wright was not called as a witness.  Kennard
further testified that he noticed bruises on the complainant's arm, but he did not recall seeing any
bruises on her neck.  Friends of Kennard who saw him with the complainant at the nightclub testified
that they saw bruises on the complainant's arm and that she told them that she was tired of her
fiance's abuse.
Kennard sought DNA testing of the spermatozoa recovered during the sexual assault
examination.  By implication, he also requested that a DNA sample be obtained from Trappio for
testing. (1)  Kennard does not contend that DNA tests would show that he was not one of the
contributors of the spermatozoa.  Instead, he argues that if the DNA tests showed that the second
contributor was Trappio or any man other than the complainant's fiancé, the complainant's
credibility would be undermined.  Kennard urges that if DNA testing had been available at the time
of his trial, and if such testing had shown that the complainant was lying when she denied having
sexual intercourse with any other man on the night of the alleged assault, there is at least a fifty-one
percent chance that he would not have been convicted.  See Smith v. State, 165 S.W.3d 361, 365
(Tex. Crim. App. 2005) (holding that under article 64.03(a)(2)(A) as amended in 2003, applicant
must show that preponderance of evidence, defined as fifty-one percent chance, supports claim that
he would not have been convicted); Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A)
(West Supp. 2007).
The trial court found, among other things, that:  (1) Kennard did not dispute having
sexual intercourse with the complainant; (2) Kennard's assertion in his testing motion that the
complainant "may have had" consensual sexual intercourse with two other men was speculative and
without evidentiary support; (2) and (3) evidence that the complainant engaged in consensual sexual
intercourse with other men on the night in question would undermine her credibility, but would not
negate the other evidence that she was assaulted.  The court concluded that:  (1) identity was not an
issue in the case, and (2) Kennard had not established 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)(1)(B), (2)(A) (West Supp. 2007).  Because the court's
order was based on the trial record and Kennard's testing motion and supporting documents, we
review the issues de novo.  See Smith, 165 S.W.3d at 363.

Was identity an issue?
A convicting court may order DNA testing only if identity was or is an issue in the
case.  Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B).  Kennard concedes that his identity was and
is not an issue, but he argues that the identity of the second spermatozoa contributor is an issue.  The
State responds that "identity," as used in article 64.03(a)(1)(B), means only the identity of the
perpetrator of the offense.
The State's argument is supported by the plain language of the statute, which provides
that a convicting court is prohibited from finding that identity was not an issue solely because the
defendant pleaded guilty or confessed.  Tex. Code Crim. Proc. Ann. art. 64.03(b).  It is also
noteworthy that by the same act adopting chapter 64, the legislature also enacted the statute
providing for the preservation of biological material that would establish the identity of the person
who committed the offense or exclude a person from the group of persons who could have
committed the offense.  Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 1, 2001 Tex. Gen. Laws 2
(current version at Tex. Code Crim. Proc. Ann. art. 38.43 (West Supp. 2007)); see Newby v. State,
229 S.W.3d 412, 414-15 (Tex. App.--Texarkana 2007, pet. ref'd) (reading chapter 64 and article
38.43 together and holding that DNA testing was not available to determine identity of plant alleged
to be marihuana). 
Although the court of criminal appeals has not explicitly stated that "identity," as used
in article 64.03(a)(1)(B), means the identity of the perpetrator, it has suggested as much.  In
Blacklock v. State, the movant sought DNA testing to determine if he was or was not the lone
attacker in a robbery and sexual assault.  235 S.W.3d 231, 232 (Tex. Crim. App. 2007).  Noting that
test results excluding the movant as the donor of the biological material would establish his
innocence, the court observed that "this is precisely the situation in which the Legislature intended
to provide post-conviction DNA testing."  Id. at 232-33.  Citing the language and history of article
64.03(a)(1)(B), the court held that a movant "can make identity an issue by showing that exculpatory
DNA tests would prove his innocence."  Id. at 233.  The court has also held that a movant is not
entitled to DNA testing simply to show the presence of a third person at the crime scene because
such evidence, without more, is not exculpatory.  Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim.
App. 2002).
In Reger v. State, the movant admitted shooting the deceased, but he claimed that he
acted in self-defense and sought DNA testing to determine whether he or the deceased was the
original aggressor.  222 S.W.3d 510, 514 (Tex. App.--Fort Worth 2007, pet. ref'd).  The court of
appeals held that the testing motion was properly denied because there was no issue as to the identity
of the perpetrator of the offense, as required by the plain language of the statute.  Id.
In Hooks v. State, the movant did not deny driving the truck that struck and killed the
deceased, but sought testing to prove his assertion that the police, as part of a conspiracy, switched
the DNA samples gathered at the scene.  203 S.W.3d 861, 863 (Tex. App.--Texarkana 2006,
pet. ref'd).  The court of appeals held that identity was not an issue, refusing to broaden the scope
of article 64.03(a)(1)(B) in the manner urged by the movant.  Id. at 864.
In Lewis v. State, the movant admitted having sexual intercourse with the minor
complainant, but sought DNA testing to prove that the complainant was sexually promiscuous. 
191 S.W.3d 225, 228 (Tex. App.--San Antonio 2005, pet. ref'd).  The court of appeals
affirmed the trial court's denial of testing because, among other things, the movant's identity was
not an issue.  Id.
In this case, Kennard admits that he had sexual intercourse with the complainant. 
DNA tests to determine the identity of the second sperm donor would not exculpate Kennard.  The
trial court properly denied testing because there was and is no issue as to Kennard's identity as the
perpetrator of the sexual assault for which he was convicted.

Would Kennard have been convicted?
The trial court was also correct in concluding that Kennard had not established by a
preponderance of the evidence that he would not have been convicted if exculpatory results had been
obtained through DNA testing.  First, as previously discussed, proving that the second donor was
not the complainant's fiancé would not exculpate Kennard.  Further, Kennard testified that the
complainant had oral sex with the other men; he did not testify that she had sexual intercourse with
them.  Thus, DNA evidence showing that the spermatozoa was from a third man would not have
seriously undermined the complainant's claim that she did not have sexual intercourse with any other
man on the night in question.  
There was, as the trial court found, other evidence tending to corroborate the
complainant's testimony that she was physically and sexually assaulted: the condition of Kennard's
apartment when the police arrived, the complainant's emotional state, and the ligature marks on the
complainant's neck.  The jury knew that the complainant had had sexual intercourse with another
person.  Kennard has not met his burden of proving that he would not have been convicted of sexual
assault if there had been DNA evidence showing that the other person was not the
complainant's fiancé.
The order denying forensic DNA testing is affirmed.

				__________________________________________
				Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed:   April 3, 2008
Do Not Publish
1.        Documents attached to the testing motion indicate that Trappio is currently in a Texas prison. 
Chapter 64 provides for testing of evidence "that was secured in relation to the offense that is the
basis of the challenged conviction and was in the possession of the state during the trial of the
offense."  Tex. Code Crim. Proc. Ann. art. 64.01(b) (West Supp. 2007).  It is not clear whether
chapter 64 provides for the gathering of new DNA samples for testing.
2.        The court noted that in his statement to the police and in his trial testimony, Kennard said only
that the complainant engaged in oral sex with the other men.

