                                          NO. 07-03-0368-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                     FEBRUARY 20, 2004
                               ______________________________

                                       LEOPOLDO FUENTES,

                                                                            Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

              FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                           NO. 9124; HON. TOM NEELY, PRESIDING
                            _______________________________

                                           Opinion
                              _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Appellant Leopoldo Fuentes appeals from an order of the trial court finding that the

results of post-conviction DNA testing were unfavorable to him. The finding was allegedly

erroneous because the test “establish[ed] a second party involvement in the . . . sexual

assault” for which he was convicted. We affirm the order.




        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
                                        Background

       Appellant was convicted in 1994 of aggravated sexual assault. On March 25, 2002,

he filed a motion seeking DNA testing and appointment of counsel. The trial court

thereafter appointed counsel and set the matter for hearing. A hearing was conducted on

April 16, 2003, which appellant attended. At that hearing, the State agreed that DNA

testing should take place. The court granted the motion, and the testing was conducted.

On June 16, 2003, a hearing was held on the results of the testing, during which the trial

court found that the report was unfavorable to appellant.

                                    Trial Court’s Finding

       In his sole issue, appellant contends that the trial court erred in its finding that the

DNA testing results were unfavorable to him. At the time of the hearing on this matter,

article 64.04 of the Code of Criminal Procedure provided that after examining the test

results, “the convicting court shall hold a hearing and make a finding as to whether the

results are favorable to the convicted person.” T EX . CODE CRIM . PROC . ANN . art. 64.04

(Vernon Supp. 2003). Such results are favorable “if, had the results been available before

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

been prosecuted or convicted.” Id. This language is similar to that formerly used in article

64.03 of the same code. There, the trial court was required to find before ordering DNA

testing that “a reasonable probability exists that the person would not have been

prosecuted or convicted if exculpatory results had been obtained through DNA

testing . . . .“ TEX . CODE CRIM . PROC . ANN . art. 64.03(a)(2)(A) (Vernon Supp. 2003).

Furthermore, to satisfy that threshold, it had to be shown that a reasonable probability



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existed that exculpatory DNA tests would prove the defendant’s innocence. Rivera v.

State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); Kutzner v. State, 75 S.W.3d 427, 438-39

(Tex. Crim. App. 2002).       And, that occurs when there is a probability sufficient to

undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex. App.

--Houston [14th Dist.] 2003, pet. ref’d).

       So, we resolve appellant’s attack upon the trial court’s finding at bar by assessing

whether the DNA tests which were undertaken create a probability of innocence sufficient

to undermine the confidence in the outcome of the trial. And, we not only treat that matter

as a question of law but also resolve it de novo. See Rivera v. State, 89 S.W.3d at 59

(stating that generally the question of whether a reasonable probability exists that DNA

tests would prove innocence is an application of the law that does not turn on credibility or

demeanor of a witness).

       Here, the post conviction test revealed the DNA profile from the “sperm fraction of

the semen on the [victim’s] panties [to be] consistent with a mixture of [appellant] and [the

victim].” And, though there were additional findings that another potential contributor to the

sperm fraction existed, appellant nonetheless could not be excluded “as the contributor of

the major component of the semen on the panties.” Further, the probability that someone

other than appellant contributed the major component of semen was “approximately 1 in

8.913 trillion for Caucasians, 1 in 73.05 trillion for Blacks, [and] 1 in 466.2 billion for

Hispanics.” The approximate population of the world, according to the test report, was only

6.3 billion. Given that appellant’s semen was found in the victim’s panties and that the

odds of someone other than appellant being the major contributor of that semen exceeded



                                              3
the world population, we cannot say that the test created a probability of innocence

sufficient to undermine confidence in the outcome of the trial.

      Accordingly, the order of the trial court is affirmed.



                                                 Brian Quinn
                                                   Justice



Publish.




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