Opinion filed May 30, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-11-00179-CR
                                   __________

                     TONY DEAN McCOY, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                              Stonewall County, Texas
                             Trial Court Cause No. 1772



                     MEMORANDUM OPINION
      Tony Dean McCoy appeals the trial court’s denial of his motion for
postconviction DNA testing pursuant to TEX. CODE CRIM. PROC. ANN. art. 64.03
(West Supp. 2012). The trial court found that the statutory requirements of
Article 64.03 were met except for one: Appellant had not established by a
preponderance of the evidence that he would not have been convicted if
exculpatory results were obtained through the DNA testing. The trial court found
that the pubic hairs that Appellant wanted tested still existed and were in a
condition for DNA testing, that they have been subjected to a sufficient chain of
custody, that identity was an issue, and that the request for testing was not made to
unreasonably delay the execution of the sentence.
      In a single issue, Appellant contends that the trial court abused its discretion
in denying his request because there is a reasonable likelihood that results from a
newer DNA testing technique would be more accurate than the tests available at
the time of his trial and that he would not have been convicted if exculpatory
results had been obtained through the DNA testing. We reverse and remand.
                                 Background Facts
      In 1999, a Stonewall County jury convicted McCoy of aggravated sexual
assault and assessed his punishment at imprisonment for twenty years. This court
affirmed his conviction on October 12, 2000. McCoy v. State, No. 11-99-00049-
CR, 2000 WL 34234870 (Tex. App.—Eastland Oct. 12, 2000, pet. ref’d) (not
designated for publication).
      Appellant is the father of the female victim, M.M.         M.M. has Down’s
syndrome and trisomy 21; she is not able to speak. M.M. and her older sister,
C.M., lived with appellant, his girlfriend (Paula Tate), and their son, T.M. On
July 22, 1998, Appellant allowed C.M., her friend, and T.M. to go to the
swimming pool. M.M. stayed at the house with Appellant. Less than an hour
later, C.M. and her friend returned to the house for C.M. to get another bathing
suit. The house was locked, which was unusual. After C.M. beat on the door,
Appellant let them in and walked to his bedroom. While C.M. was looking for her
bathing suit, her friend found M.M. naked in the girls’ bathroom with duct tape


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around her wrists and ankles. C.M. found blood on M.M.’s stomach and blood on
an item of bed covering in the girls’ room. Id. at *1.
      C.M. and her friend told Tate about the event the next day. Id. at *4. Before
Tate took M.M. to the local hospital for an examination, she questioned Appellant
about the locked door. He said he was taking a shower and did not want M.M. or
his dog to get out. After Tate confronted him with the events of July 22, Appellant
told her that he had just as well shoot himself. Id. at *2. Tate took M.M. to the
local hospital on the evening of July 23, where a nurse practitioner examined M.M.
The nurse practitioner opined that there had been a sexual assault or penetration of
M.M. As Tate and M.M. left the hospital, Tate noticed that Appellant’s company
pickup was in the parking lot and that her car was gone. Appellant had gone to
their house, taken his clothes and guns, and left the state. Appellant was later
arrested in Louisiana. Id. at *2.
      In searching the house, the officers took four pubic hairs from M.M.’s bed
covering. They also obtained pubic hair samples from Appellant and M.M. as well
as pubic hair combings from M.M. According to an analysis performed by the
Texas Department of Public Safety laboratory, M.M.’s pubic hairs did not match
the ones found on the bed covering. There was one dark brown pubic hair found in
M.M.’s pubic hair combings. The pubic hairs found on the bed covering were
visually similar to Appellant’s pubic hair sample. Three of the pubic hairs tested
did not respond to the test. One of the hairs did respond and matched neither M.M.
nor Appellant. Id. at *3.
      Appellant’s postconviction motion sought forensic DNA testing of the four
pubic hairs and bloodstain from M.M.’s bed covering. He also sought to test
blood, saliva, and pubic hair samples from five named individuals that he claimed
also had access to the victim. Appellant testified on his own behalf at trial. He


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related that friends came by for visits after C.M., her friend, and T.M. left to go
swimming, and he denied sexually assaulting M.M.
      At the hearing on his motion for postconviction DNA testing, Appellant
testified that short tandem repeat DNA testing (STR) had been developed as a
forensic DNA testing technique subsequent to his trial. Appellant said that the
people named in his motion as possible suspects were “in and out of that house at
the time of that incident” and were not just chosen at random. He theorized that
the pubic hairs that could not be tested in 1999 might be tied to one of those
individuals. Appellant argued that, if the DNA test showed that one of those
people had lost a pubic hair in the victim’s bed, where they had no reason to be,
and if that evidence had been presented to the jury, he would not have been
convicted.
      Appellant pointed out to the trial court that the identity of the perpetrator had
been at issue in his trial; that there had been no forensic evidence, DNA or
otherwise, linking him to the crime; that the victim could not testify against her
attacker; and that the State’s case had been entirely circumstantial. The State’s
expert testified that the pubic hairs were “visually similar” to Appellant’s, and the
State emphasized that testimony in closing argument. That testimony and the
State’s argument were key in persuading the jury of Appellant’s guilt.
                                Standard of Review
      In reviewing the trial court’s Chapter 64 rulings, an appellate court usually
gives almost total deference to the trial court’s findings of historical fact and
application-of-law-to-fact issues that turn on witness credibility and demeanor.
Gutierrez v. State, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011); Routier v. State,
273 S.W.3d 241, 246 (Tex. Crim. App. 2008). But the reviewing court reviews de
novo all other issues applying law to fact. Id. The de novo review usually
includes the issue of whether the convicted person has established by a
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preponderance of the evidence that he or she would not have been convicted if
exculpatory results had been obtained through DNA testing. CRIM. PROC.
art. 64.03(a)(2); see Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
                                       Analysis
      The DNA testing at trial showed that one pubic hair belonged to someone
other than Appellant or M.M. Because there was evidence at trial that one hair did
not belong to Appellant, the trial court concluded that, even if the other hairs also
did not belong to Appellant, the jury probably would have convicted Appellant.
We disagree with that inference. It ignores weight that the jury no doubt gave to
the expert’s testimony that the other three pubic hairs were “visually similar” to
Appellant’s. The State alluded to the existence of the pubic hairs in opening
argument. 2000 WL 34234870 at *8. In closing argument, the State argued that
the three pubic hairs that could not be tested for DNA evidence were, nevertheless,
“visually similar” to Appellant’s pubic hair.
      The State emphasizes the statement in our opinion, “The testimony reveals
that appellant was the only one with access to M.M. at the time of the alleged
offense.” 2000 WL 34234870 at *5. C.M. and her friend provided that testimony.
Appellant, C.M., C.M.’s friend, and Tate all testified that C.M. disliked Tate and
wanted to move to Breckenridge to be with her mother and a boyfriend. Appellant
testified that he would not allow C.M. to move because C.M. had two boyfriends
there “and they are thugs.” Id. at *7. There was testimony that C.M. had allegedly
said that she had a plan to get back to Breckenridge. Id. at *1. It was also C.M.
and her friend who testified that they found M.M. taped with duct tape in the girls’
bathroom; C.M. said she removed the duct tape and threw it into the kitchen trash.
The officers searched each trash can in the house, as well as the dumpster outside,
but did not find the discarded duct tape. Id. at *3.


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      The evidence against Appellant was entirely circumstantial. Both nurses
who examined M.M. testified that M.M. had been the victim of sexual assault or
penetration. The nurse practitioner at the local hospital testified that she found a
tear about one centimeter in size and two small hematomas in the vaginal area, but
she found no bleeding. The sexual assault examiner testified that her examination
suggested that there had been chronic penetration that had worn down the wall of
the hymen and that the penetrations “had occurred sometime in the past, but [the
injuries] were healed now.” 2000 WL 34234870, at *3. Because the expert
examiner did not see M.M. within twenty-four hours after the alleged event, she
did not see acute changes to the hymen, only chronic changes. However, she
pointed out that the absence of physical findings did not mean that an assault did
not occur because “a lot can heal up in twenty-four hours.” Id. at *3. According to
both the nurse practitioner and the sexual assault examiner, there was no doubt that
M.M. had been penetrated on more than one occasion, but they were unable to
point to physical evidence that a penetration had occurred on July 22.
      Appellant argues that new DNA testing techniques such as STR might
identify the donor of the one pubic hair that was not linked to Appellant or the
victim and might also determine the source of the other three pubic hairs that were
unresponsive to the testing techniques at the time of trial. But the more important
point in Appellant’s argument is that, if the new testing excludes Appellant as a
donor of the three pubic hairs, the prejudice introduced into the case by the
expert’s testimony and the State’s final argument linking Appellant to the assault
on the basis of “visual similarity” of the pubic hairs to him would be eliminated.
      In Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009), the court
found that the defendant had established that he would not have been convicted if
DNA testing yielded exculpatory results despite eye-witness identification of him
as the one who committed the aggravated sexual assault; the eye-witness
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identification of the defendant was of “no consequence” in determining that issue.
In Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App. 2007), the Court of
Criminal Appeals reversed the decision of the court of appeals (which denied the
requested DNA testing) despite the fact that the victim knew the defendant and
identified him at trial as the one who robbed and sexually assaulted her. The
Blacklock court held that, under the facts, the defendant had reasonably shown by a
preponderance of the evidence “that the victim’s lone attacker was the donor of the
material for which [the defendant] seeks DNA testing.” 235 S.W.3d at 232. In
Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005), Smith filed a Chapter 64
motion for DNA testing fourteen years after his conviction of aggravated rape. At
trial, the State used the presence of seminal fluid to establish the rape. The Smith
court recognized that, if Smith’s DNA did not match the seminal fluid obtained
during the victim’s rape exam, which was conducted eight hours after she was
attacked, the results would be exculpatory.
      Although the three cases can arguably be distinguished from this case, we
believe the reasoning in the cases supports our conclusion that Appellant has
shown that there is at least a 51% chance that he would not have been convicted if
DNA testing had shown that none of the pubic hairs were his. See Prible v. State,
245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008) (requiring that there must be
greater than a 50% chance that the defendant would not have been convicted if
DNA testing provided exculpatory results).
      We sustain Appellant’s issue to the extent that he is entitled to
postconviction DNA testing of the pubic hairs and blood samples in the custody of
the State. His request for DNA samples from individuals named in his motion was
not addressed at the hearing on his motion, and we do not address that request here.




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                                   This Court’s Ruling
      We reverse the trial court’s decision and remand for further proceedings in
accordance with this opinion.




                                                     TERRY McCALL
                                                     JUSTICE


May 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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