                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00562-CR


JAVIER GONZALEZ                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                 I. INTRODUCTION

      In a single point, Appellant Javier Gonzalez appeals the denial of his post-

conviction request for forensic DNA testing. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On May 4, 2001, Gonzalez entered an open plea of guilty to aggravated

sexual assault of a child under fourteen years of age, and the trial court assessed

      1
       See Tex. R. App. P. 47.4.
his punishment at thirty-five years‟ imprisonment. On August 15, 2002, this court

affirmed his conviction. See Gonzalez v. State, No. 02-01-00216-CR, slip op. at

5 (Tex. App.—Fort Worth Aug. 15, 2002, pet. struck) (mem. op, not designated

for publication).

         On May 16, 2005, Gonzalez filed a motion for appointment of counsel for

DNA testing. An attorney was appointed to represent Gonzalez, and Gonzalez

filed his request for DNA testing on October 8, 2010. The State filed a response

and proposed findings of fact and conclusions of law. On November 29, 2010,

without a hearing, the trial court adopted the State‟s proposed findings and

conclusions and denied Gonzalez‟s request for DNA testing. The findings of fact

state:

         Facts of the Case

         4.    Defendant sexually assaulted nine-year-old C.P. (“the child
               victim”) on or about October 22, 2000 by penetrating her
               vagina with his finger, touching her genitals, and exposing his
               genitals to her.

         5.    The victim‟s mother, R.P. (“the victim‟s mother”), witnessed
               Defendant expose his genitals to the child victim on October
               23, 2000.

         6.    After the victim‟s mother called the police, the child victim
               advised Officer Castillo that Defendant attempted to put her
               had [sic] on his genitals that morning and that Defendant put
               “his finger inside of [her] everyday.”

         7.    A sexual assault kit and vaginal swabs were taken from the
               child victim.

               ....



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Evidence Exists

10.   Evidence exists that might contain biological material.

11.   The vaginal swabs of the child victim, the sexual assault kit,
      and clothing are currently in a condition making DNA testing
      possible.

Exculpatory Results

12.   There is no evidence, or allegation, that finger penetration
      would leave biological material sufficient for DNA testing.

13.   The absence of Defendant‟s DNA in the sexual assault kit
      would not prove his innocence because there is no evidence
      that finger penetration would leave biological material
      sufficient for DNA testing.

14.   Defendant has failed to show that “there is a 51% chance that”
      he would not have been convicted had exculpatory results
      been obtained through DNA testing of the sexual assault kit.

15.   The absence of Defendant‟s DNA in the vaginal swabs would
      not prove his innocence because there is no evidence that
      finger penetration would leave biological material sufficient for
      DNA testing.

16.   Defendant has failed to show that “there is a 51% chance that”
      he would not have been convicted had exculpatory results
      been obtained through DNA testing of the vaginal swab.

17.   The absence of Defendant‟s DNA on the clothing would not
      prove his innocence because there is no evidence that the
      perpetrator ejaculated while sexually assault[ing] the victim.

18.   Defendant has failed to show that “there is a 51% chance that”
      he would not have been convicted had exculpatory results
      been obtained through DNA testing of the bag of clothing.

19.   Defendant has failed to show that “there is a 51% chance that”
      he would not have been convicted had exculpatory results
      been obtained through DNA testing.



                                  3
[Internal citations omitted.] The conclusions of law adopted by the trial court

state that Gonzalez “has failed to prove, by a preponderance of the evidence,

that he would not have been convicted had exculpatory results been obtained

through DNA testing of” the sexual assault kit, the vaginal swabs, and the bag of

clothing, and that Gonzalez “has failed to show that „there is a 51% chance that‟

he would not have been convicted had exculpatory results been obtained through

DNA testing.”

                      III. DNA TESTING UNDER CHAPTER 64

      The trial court may order DNA testing only if statutory preconditions are

met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002); see Tex. Code

Crim. Proc. Ann. art. 64.03 (West Supp. 2010). When, as here, the trial court

denies a motion for post-conviction DNA testing without conducting a hearing, we

review the ruling de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim.

App. 2005).

      A convicted person who moves for post-conviction DNA testing bears the

burden of satisfying the requirements of chapter 64 of the code of criminal

procedure. See Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006)

(op. on reh‟g). Under that chapter, a convicted person must establish “by a

preponderance of the evidence that . . . the person would not have been

convicted if exculpatory results had been obtained through DNA testing.” Tex.

Code Crim. Proc. Ann. art. 64.03(a)(2)(A). The court of criminal appeals has

interpreted this phrase to mean a “greater than a 50% chance that [the


                                       4
defendant] would not have been convicted if DNA testing provided exculpatory

results.” Prible v. State, 245 S.W.3d 466, 467 (Tex. Crim. App.), cert. denied,

129 S. Ct. 54 (2008); see Smith, 165 S.W.3d at 364. That showing has not been

made if exculpatory test results would “„merely muddy the waters.‟” Rivera v.

State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (quoting Kutzner v. State, 75

S.W.3d 427, 439 (Tex. Crim. App. 2002)).

              IV. NO ERROR IN DENIAL OF MOTION FOR DNA TESTING

      Gonzales was convicted of aggravated sexual assault by inserting his

finger into the female sexual organ of a child. As the State points out, there is no

evidence that digital penetration would leave biological material sufficient for

DNA testing. Thus, even if DNA testing of the sexual assault kit, the vaginal

swabs, or the bag of clothing revealed that the items do not contain Gonzalez‟s

DNA, or contain another person‟s DNA, DNA testing of these items would, at

best, “muddy the waters.” Rivera, 89 S.W.3d at 59. In other words, Gonzalez

has failed to establish that there is “greater than a 50% chance” that he would not

have been convicted if DNA testing provided exculpatory results. Prible, 245

S.W.3d at 470; see Smith, 165 S.W.3d at 364; see also Tex. Code Crim. Proc.

Ann. art. 64.03(a)(2)(A). Consequently, we overrule Gonzalez‟s sole point.




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                             V. CONCLUSION

      Having overruled Gonzalez‟s sole point, we affirm the trial court's

order denying DNA testing.



                                                SUE WALKER
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 18, 2011




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