AFFIRMED and Opinion Filed July 26, 2019




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01273-CR

                          ANTONIO RODRIGUEZ, JR., Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                           On Appeal from the 331st District Court
                                    Travis County, Texas
                           Trial Court Cause No. D-1-DC-84-075577

                             MEMORANDUM OPINION
                  Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                  Opinion by Justice Whitehill
       This is an appeal of the trial court’s finding that the results of post-conviction DNA testing

were unfavorable to the appellant. See TEX. CODE CRIM. PROC. art. 64.05. We affirm the trial

court’s finding because appellant did not satisfy his article 64 burden to establish a reasonable

probability that he would not have been convicted had the DNA results been available at trial.

                                        I. BACKGROUND

       In 1985, appellant was convicted of aggravated sexual assault and sentenced to ninety-nine

years imprisonment. The conviction was affirmed on appeal.

       In 2010, appellant moved for post-conviction DNA testing and requested the appointment

of counsel and the motion was granted. The sexual assault victim’s DNA profile was the only

profile the testing developed based on hair found in the trace evidence collection.
       In 2015, appellant requested a hearing on the test results, arguing that none of the evidence

tested linked him to the crime scene. The trial court held a hearing in 2018, and made findings of

fact and conclusions of law, including a finding that it is reasonably probable that appellant would

have been convicted had the DNA results obtained in the testing been available at trial. That

finding forms the basis for this appeal.

                                           II. ANALYSIS

A.     Standard of Review and Applicable Law

       To be entitled to post-conviction DNA testing, a convicted person must satisfy the

requirements of Chapter 64 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art.

64.03. One of those requirements is that “the convicted person establishes by a preponderance of

the evidence that . . . the person would not have been convicted if exculpatory results had been

obtained through DNA testing.” Id. 64.03(a)(2)(A). This means that a convicted person must show

a greater than 50% chance that he would not have been convicted if exculpatory results from the

requested DNA testing had been available at trial. Reed v. State, 541 S.W.3d 759, 774 (Tex. Crim.

App. 2017).

       If the court orders testing, it must hold a hearing and make a finding as to whether, had the

results been available at trial, it is “reasonably probable that the person would not have been

convicted.” See TEX. CODE CRIM. PROC. art. 64.04.

       When reviewing the trial court’s decision, we apply a bifurcated standard of review,

affording almost total deference to a trial court’s resolution of historical fact issues and mixed

questions that turn on credibility and demeanor, but we review de novo mixed questions that do

not turn on credibility and demeanor and questions of law. Dunning v. State, 572 S.W.3d 685, 692

(Tex. Crim. App. 2019). The ultimate question of whether a reasonable probability exists that a

person would not have been convicted had the DNA results been available at trial is a question of

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law that we review de novo. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). A trial

court does not err by finding DNA test results unfavorable if the test results fail to demonstrate a

reasonable probability that the test results would change the outcome at trial. See id.

B.     The Evidence

       During the 1985 trial, the victim, CC, testified that appellant attacked her one night after

she stopped at a grocery store to use a pay phone. After CC used the phone and returned to her

car, appellant reached through the car window, strangled her, and pushed her to the passenger seat.

       Appellant then drove CC’s car for two to three minutes before pulling over to the side of

the road. He removed CC’s clothes, told her he had a knife, and threatened to kill her. Then,

appellant put his penis in CC’s vagina and bit her “all over.”

       In an effort to escape, CC convinced appellant to go to her apartment. When they reached

the apartment, CC escaped, drove to a pay phone, and called the police.

       A week later, CC saw appellant as she was driving down the street and recognized him

immediately. She drove to a store and called the police. She also told a man at the store whom

she knew that the person who had beaten and raped her was walking down the street, and the man

offered to detain appellant. CC and the man then drove back down the street, and the man detained

appellant until the police arrived.

       CC identified appellant in court. A comparison of a fingerprint taken from the doorframe

of her car showed the print to be appellant’s. A small seminal stain was found on a towel in CC’s

car, but the sample was too small to be further analyzed or connected to a particular individual.

CC identified the towel as one she kept in her car, but did not identify it as having any part in her

sexual assault. In addition, a hair was identified in CC’s pubic combing that a DPS chemist

testified had characteristics consistent with appellant’s hair.




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       The 2010 post-conviction DNA testing resulted in a partial profile obtained from hair found

in a trace evidence collection of the towel, panties, and pantyhose collected from CC’s car.

Initially, the profile was described as consistent with an “unknown female,” but on further analysis,

the profile was deemed consistent with CC’s DNA profile. The trial court noted these results in

its findings and also found that no other DNA profiles were obtained from the evidence tested.

       Appellant argues that the DNA testing (i) proves that the semen originally identified on the

towel is not his and (ii) refutes “misleading hair comparison evidence” presented at trial.

According to appellant, the trial court concluded that “the DNA testing conclusively proved that

the hair and semen found at the scenes and later discussed at the original trial” are not appellant’s.

We are not persuaded by these arguments.

       Significantly, appellant’s hair comparison argument is based on the false premise that the

hair discussed at trial was the same hair that was tested. It was not.

       At trial, a DPS chemist testified that a hair found in CC’s pubic combing was

microscopically consistent with appellant’s hair. No DNA profile was developed for this hair.

The hair that was subsequently tested in 2010 was found in the trace evidence collection from the

towel, panties, and pantyhose. This hair revealed a partial DNA profile consistent with CC’s

profile. The hair found in the trace evidence was not discussed by the chemist at trial. Thus, the

record reflects that the hair that was examined and about which there was testimony at trial is not

the same hair that later yielded CC’s profile. Thus, contrary to appellant’s assertion that “the

testimony of [the chemist] has been scientifically and irrefutably proven to be untrue,” the

chemist’s trial testimony is not impeached by the post-conviction DNA testing. A DNA test result

identifying the victim’s DNA does not compel a finding in appellant’s favor because it does not

make it more likely that the sexual assault did not take place or that appellant was not the attacker.




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See Ewere v. State, No. 05-17-00125-CR, 2017 WL 5559585, at *3 (Tex. App.—Dallas Nov. 16,

2017, no pet.) (mem. op., not designated for publication).

       Likewise, the absence of appellant’s DNA on the towel does not compel a favorable

finding. Appellant claims CC testified that she used the towel to clean herself immediately after

the attack, but we find no record support for this assertion. Rather, the record reflects that CC

testified that she kept the towel in her car to use when she washed the car.

       A forensic analyst testified at trial that a small stain with identifiable spermatozoa had been

found on the towel, but additional analysis was impossible because there was a “very small

quantity.” The State argued it was possible that appellant could have wiped himself on the towel.

The defense argued that the sperm on the towel had no connection to the offense. Post-conviction,

no DNA profile was obtained from the towel.

       Appellant insists that the DNA testing proves that the semen originally identified on the

towel is not his. But the absence of a defendant’s DNA does not compel a trial court to issue a

favorable finding. See Rivera, 89 S.W.3d at 60, n.20; see also Glover v. State, 445 S.W.3d 858,

862 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (DNA test results not in conflict with results

on towel presented at trial). The inability to obtain a profile does not exclude appellant as the

possible source of the sperm identified but not tested twenty nine years before. Both before and

after the DNA testing, the information was the same; the perpetrator left behind no testable

biological material.

       Appellant’s remaining arguments attempt to relitigate the admission, reliability, and

credibility of the remaining evidence admitted at trial, including hair comparison evidence and

eyewitness identification. These issues, however, are not relevant to the inquiry at hand. Indeed,

“Chapter 64 is not an invitation to review every potential error in the underlying trial proceedings”

and does not “confer jurisdiction on appellate courts to consider collateral attacks on the trial

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court’s judgment or to review, under the guise of a DNA testing appeal, anything beyond the scope

of those articles.” Reger v. State, 222 S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. ref’d).

       After carefully reviewing the record and after considering the probable impact that the

DNA test results would have when combined with the incriminating evidence presented at trial,

we cannot conclude there is a reasonable probability that appellant would not have been convicted

had the DNA results been available in 1985. Therefore, we hold that the trial court did not err by

finding that the test results were unfavorable to appellant and resolve his sole issue against him.

                                        III. CONCLUSION

       Having resolved appellant’s sole issue against him, we affirm the trial court’s August 25,

2018 finding on the results of the DNA testing.




                                                   /Bill Whitehill/
                                                   BILL WHITEHILL
                                                   JUSTICE




Do Not Publish
TEX. R. APP. P. 47
181273F.U05




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 ANTONIO RODRIGUEZ, JR., Appellant                   On Appeal from the 331st District Court,
                                                     Travis County, Texas
 No. 05-18-01273-CR          V.                      Trial Court Cause No. D-1-DC-84-075577.
                                                     Opinion delivered by Justice Whitehill.
 THE STATE OF TEXAS, Appellee                        Justices Partida-Kipness and Pedersen, III
                                                     participating.

        Based on the Court’s opinion of this date, the trial court’s August 25, 2018 finding on the
results of DNA testing is AFFIRMED.


Judgment entered July 26, 2019




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