Affirmed; Opinion Filed December 5, 2019.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01246-CR

                         JOHNATHAN EUGENE COOPER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                            On Appeal from the 297th District Court
                                    Tarrant County, Texas
                               Trial Court Cause No. 1031532D

                               MEMORANDUM OPINION
                        Before Justices Pedersen, III, Reichek, and Carlyle
                                    Opinion by Justice Carlyle

        Pursuant to a written plea agreement, appellant Johnathan Eugene Cooper pleaded nolo

contendere to sexual assault of a child under seventeen and was sentenced to two years’

confinement. A year later, Mr. Cooper filed a motion for post-conviction DNA testing under Texas

Code of Criminal Procedure Chapter 64, which the trial court granted. See TEX. CODE CRIM. PROC.

art. 64.01–05. Following a hearing, the trial court signed an order stating it “finds that the results

do not create a reasonable probability that the defendant would not have been convicted had they

been available during his trial.” See id. art. 64.04.
          In a single issue on appeal, Mr. Cooper challenges the trial court’s article 64.04 finding.1

We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.

I. Background

          The indictment in this case charged Mr. Cooper with sexually assaulting K.C., a child under

seventeen, in 2006. Mr. Cooper signed a June 5, 2013 plea agreement in which he stated he was

represented by counsel and his plea was “knowingly, freely, and voluntarily entered.” The plea

agreement included the following “Judicial Confession”:

          I UNDERSTAND ALL OF THE ALLEGATIONS IN THE INDICTMENT OR
          INFORMATION AND I DO NOT CONTEST THAT I COMMITTED EACH
          AND EVERY ALLEGATION IT CONTAINS, EXCEPT THOSE WAIVED BY
          THE STATE. I DO NOT CONTEST I AM GUILTY OF THE OFFENSE
          ALLEGED THEREIN AS WELL AS ALL LESSER INCLUDED OFFENSES,
          EXCEPT THOSE WAIVED BY THE STATE. . . . I SWEAR THAT ALL
          TESTIMONY I GIVE IN THE CASE WILL BE THE TRUTH, THE WHOLE
          TRUTH AND NOTHING BUT THE TRUTH, SO HELP ME GOD. . . . I
          STIPULATE THAT ALL ELEMENTS IN THE INDICTMENT WOULD BE
          PROVEN BEYOND A REASONABLE DOUBT BY THE STATE’S
          WITNESSES.

          While incarcerated for that offense, Mr. Cooper filed an October 23, 2014 pro se motion

for post-conviction DNA testing. He requested laboratory testing of biological evidence collected

during an examination of K.C. after the alleged offense, including vaginal, vulvar, and perianal

swabs. The trial court granted Mr. Cooper’s motion in February 2015 and the Texas Department

of Public Safety Crime Laboratory (DPS) conducted the requested forensic testing.

          DPS issued three reports regarding the testing. First, in a January 27, 2016 report, DPS

stated (1) “semen was detected” on K.C.’s vulvar swabs and perianal swabs, (2) “no semen was

detected” on K.C.’s vaginal swabs, and (3) further DNA analysis would be performed on “selected

samples from this case.” Second, in a September 24, 2017 report, DPS stated (1) the DNA profile



      1
        This appeal was originally filed in the Second Court of Appeals of Texas in Fort Worth. The Texas Supreme Court transferred it to this
court pursuant to a September 26, 2018 docket equalization order. See TEX. GOV’T CODE § 73.001.

                                                                    –2–
from the vaginal swabs was consistent with K.C.’s DNA profile, (2) the DNA profile from the

vulvar swabs’ “epithelial cell fraction” was consistent with K.C.’s DNA profile, (3) the DNA

profile from the perianal swabs’ “epithelial cell fraction” and the “partial DNA profile from the

sperm cell fraction from the perianal swabs” were consistent with K.C.’s DNA profile,

(4) “[i]nsufficient data is present for comparison from the sperm cell fraction from the vulvar

swabs,” and (5) “Y-STR (male-specific) DNA analysis will be performed on selected stains from

this case.” Third, in a December 13, 2017 report, DPS stated “[n]o Y-STR profiles were obtained”

from K.C.’s vaginal, vulvar, or perianal swabs. At the State’s request, DPS also provided a written

“explanation on why no Y-STR DNA profiles were obtained from the vaginal swabs, the vulvar

swabs, or the perianal swabs”:

       Essentially, there was an insufficient amount of DNA foreign to the victim present
       on these items in order to develop an interpretable Y-STR profile for comparison
       to the reference sample from Johnathan Cooper. These results are consistent with
       the Forensic Biology testing results, in that the analyst did not detect the presence
       of semen on the vaginal swabs and only observed one spermatozoon each on the
       half of the vulvar and perianal swabs screened. Upwards of 50 to 100 spermatozoa
       are necessary to yield a Y-STR profile, based on internal validation studies.

       Following that testing, the State filed a “Motion for a No Reasonable Probability of Non-

Conviction Finding on Results of Post-Conviction DNA Testing” in which it argued (1) Mr.

Cooper “pled nolo contendere, entered a written judicial confession that he did not contest

committing this sexual assault, and stipulated that the State’s witnesses would prove this sexual

assault beyond a reasonable doubt”; (2) prior to entering his plea, “the defendant (through his

counsel) had access to . . . [a] forensic serology report indicating the absence of seminal fluid on

the vaginal and perianal swabs and of semen on the vaginal and vulvar swabs, and only the

presumption of seminal fluid on the vulvar swab”; and (3) “[i]n other words, the DPS testing results

do not provide any more forensic information than that available when the defendant made his

decision to not contest guilt; thus, these results do not cast affirmative doubt on the validity of the

                                                 –3–
defendant’s conviction.” The attachments to the State’s motion included a December 20, 2006

“forensic serology report” from the University of North Texas Health Science Center that stated

(1) a “presumptive” test for “a major constituent of seminal fluid” on the vulvar swabs was

“positive” and (2) “presumptive” tests for seminal fluid on the other swabs and for semen on all

the swabs were “negative.”

       Mr. Cooper filed a February 13, 2018 pro se motion in which he stated he was indigent and

requested appointed counsel for any DNA-testing proceedings. The trial court appointed counsel.

At the August 2018 hearing regarding the DNA test results, Mr. Cooper’s counsel argued, among

other things, that (1) trial counsel “did not do that testing at the time of the plea”; (2) “an

inconclusive result at the time when [Mr. Cooper] took the plea . . . may have influenced his

decision whether or not to take the plea”; and (3) “without the DNA when he took the plea, I think

that’s something the Court needs to consider.”

II. Appellant’s pending pro se motion in this court

       As a threshold matter, we begin by addressing a pending October 10, 2019 pre-submission

pro se motion Mr. Cooper filed in this court. The trial court appointed as appellate counsel the

same attorney who had represented Mr. Cooper in the trial court DNA-testing proceeding. Starting

in November 2018, Mr. Cooper filed several letters and pro se motions in this court complaining

of his appointed counsel’s “ineffective assistance” and requesting that new counsel be appointed

for him or, alternatively, that he be allowed to proceed pro se. At Mr. Cooper’s request, this court

abated this appeal in January 2019 and ordered the trial court to hold a hearing to determine

whether he should be appointed new counsel. Following that hearing, the trial court appointed new

appellate counsel in February 2019.

       In May 2019, Mr. Cooper sent this court a letter “objecting” to the appellate brief filed by

his new counsel and requesting that he be allowed to proceed pro se. This court again abated this

                                                 –4–
appeal. The trial court held a June 14, 2019 hearing to determine “whether appellant desires to

dismiss appointed counsel and represent himself pro se on appeal.” During that hearing, Mr.

Cooper stated to the trial court, “I will proceed with [current appointed counsel].” The trial court

provided this court with a hearing transcript and signed an order that stated Mr. Cooper “does not

desire” to dismiss appointed counsel and represent himself on appeal.

        Mr. Cooper filed a June 14, 2019 letter in this court in which he stated (1) he

“conditionally-declined to proceed pro-se” subject to an “off-the-record” agreement that current

counsel would supplement the appellate brief to include certain complaints regarding Mr. Cooper’s

former counsel, and (2) “[i]f the request to timely supplement brief is not done, my retraction to

proceed pro-se is involuntary, and re-assert my right to represent myself pro-se.” This court issued

a July 5, 2019 order stating, “If appellant desires to supplement his brief, he is ORDERED to file

the supplemental brief, through counsel, within fifteen days of the date of this order.” No

supplemental brief was filed.

        On July 9, 2019, Mr. Cooper filed a pro se motion stating he “retract[s] his statement to

proceed with counsel” and “reasserts his right to pro-se self-representation,” “due to new counsel

failure to supplement brief as agreed to.” This court denied that motion in a July 11, 2019 order

that stated in part, “After the parties have filed briefs, after the appeal was abated twice for hearings

regarding appellant’s representation, and after appellant expressly declined the opportunity to

represent himself and decided to accept counsel’s representation, we conclude appellant’s renewed

interest in pro se representation comes too late and would delay the orderly administration of

justice.” This case was set for appellate submission on October 16, 2019.

        On July 31, 2019, Mr. Cooper filed a letter in this court in which he reasserted his request

to represent himself and stated he requests new counsel based on “conflicts” regarding

supplementing his appellate brief. Also, he filed an August 15, 2019 pro se “objection” to this case

                                                  –5–
being submitted in this court, requesting abatement on the same bases described in his July letter,

and an October 10, 2019 pro se “Emergency-Interest of Justice Reconsideration Motion to Address

and Follow U.S. Supreme & Court Case Law Rules” both of which were carried with the case.

       In Mr. Cooper’s October 10, 2019 reconsideration motion, he asks this court to

“reconsider/re-evaluate abatement to trial court for proper procedure of appellant timely re-

asserted pro-se self representation right or to determine if substitute counsel is warranted for good

cause.” As to his first abatement ground, Mr. Cooper contends this court’s July 11, 2019

conclusion that his “renewed interest in pro se representation comes too late and would delay the

orderly administration of justice” is “not supported by the record.” For the same reasons articulated

in this court’s July 11, 2019 order, we decline to order further abatement regarding pro se

representation.

       As to Mr. Cooper’s request to again substitute counsel, his motion (1) cites case law

regarding substitution of appointed counsel when a “conflict of interest” is shown and (2) argues

“[c]ounsel refusal to raise the agreed claims in order to get appellant to forgo his right to self-

representation caused a conflict” and thus obligated this court to order a hearing for further inquiry

or to appoint new counsel. “A criminal defendant is not entitled to appointed counsel of choice.”

Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). A court has no duty to search for

counsel who is agreeable to the defendant, and the right to counsel cannot be insisted upon in such

a way as to obstruct the orderly administration of justice. Anderson v. State, No. 02-17-00044-CR,

2018 WL 359635, at *6 (Tex. App.—Fort Worth Jan. 11, 2018, no pet.) (mem. op., not designated

for publication) (citing Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976)).

       The defendant carries the burden of proving he is entitled to new counsel. Id. “An ‘actual

conflict of interest’ exists if counsel is required to make a choice between advancing his client’s

interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his

                                                 –6–
client’s interest.” Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). If a timely

request to substitute counsel based on an alleged conflict of interest is made, courts are required to

investigate such requests. Holloway v. Arkansas, 435 U.S. 475, 484 (1978). But it is not always

necessary for the court to hold a hearing concerning an alleged conflict when a substitution motion

does not advance a valid basis for the asserted conflict. See, e.g., Calloway v. State, 699 S.W.2d

824, 830–31 (Tex. Crim. App. 1985) (declining to find trial court neglected duty to hold hearing

when substitution motion did not advance valid basis for asserted conflict). Generally, conclusory

allegations of conflicts of interest, disagreements on trial strategy, and personality conflicts are

insufficient to satisfy the defendant’s burden. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim.

App. 2000); Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d).

           Here, although Mr. Cooper requests new counsel based on an alleged “conflict,” his

allegations are conclusory and his complaints describe a disagreement on strategy. Further, like

his abatement request regarding pro se representation, his request for further abatement for

substitution-of-counsel proceedings after the parties have filed briefs, the appeal was abated twice

for hearings as to his representation, and he expressly decided to accept counsel’s representation,

“comes too late and would delay the orderly administration of justice.” See Anderson, 2018 WL

359635, at *6. We deny Mr. Cooper’s October 10, 2019 reconsideration motion.2

III. Appellant’s challenge to trial court’s Chapter 64 finding

           If the convicting court orders DNA testing under Chapter 64 of the Texas Code of Criminal

Procedure, article 64.04 requires the court, after examining the results of testing, to “hold a hearing

and make a finding as to whether, had the results been available during the trial of the offense, it



      2
        Also, to the extent Mr. Cooper’s August 15, 2019 “objection” has not become moot upon this case’s submission, we overrule that objection
for the same reasons.

                                                                     –7–
is reasonably probable that the person would not have been convicted.” CRIM. PROC. art. 64.04. A

“reasonable probability” exists when there is a probability sufficient to undermine confidence in

the outcome of the trial. Baggett v. State, 110 S.W.3d 704, 706 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d).

        When reviewing an article 64.04 finding, we apply a bifurcated standard. Dunning v. State,

572 S.W.3d 685, 692 (Tex. Crim. App. 2019). We afford almost total deference to a trial court’s

resolution of historical facts and mixed questions that turn on credibility and demeanor, but review

de novo mixed questions that do not turn on credibility and demeanor and questions of law. Id.;

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

        Under article 64.04, “the question is whether the inculpatory evidence—including

Appellant’s guilty plea, judicial confession, his testimonial confession, and other inculpatory

evidence adduced at the Chapter 64 hearing—is so undermined by the test results that it is

reasonably probable that a fact-finder would not have convicted Appellant had the tests been

available at trial despite the inculpatory evidence.” Dunning, 572 S.W.3d at 694; see also Rivera,

89 S.W.3d at 59 (“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 law that

we review de novo.”). “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 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). When the trial court does not enter separate findings, we imply

findings necessary to support the ruling so long as they are reasonably supported by the record.

Dunning, 572 S.W.3d at 692.




                                                –8–
        A guilty plea is typically strong evidence supporting a non-favorable article 64.04 finding

because “[c]onvicting courts should . . . give great respect to knowing, voluntary, and intelligent

pleas of guilty.” Id. at 694. While a guilty plea does not preclude a favorable finding under article

64.04, if there is no reason to believe that a defendant’s plea was inaccurate or unreliable, that plea

should be given great weight. Id. at 694–95.

        In his sole issue, Mr. Cooper contends the trial court erred by finding that the DNA test

results did not create a reasonable probability that he would not have been convicted had they been

available during his trial. According to Mr. Cooper, the DNA test results are “inconsistent with the

[trial court’s] ruling on the issue that, it is likely the Appellant is the perpetrator.”

        The record shows Mr. Cooper entered his nolo contendere plea “knowingly, freely, and

voluntarily” while represented by counsel. At that time, forensic testing performed in 2006 showed

that a “presumptive” test for “a major constituent of seminal fluid” on the vulvar swabs was

“positive” and all other “presumptive” tests for seminal fluid and semen were “negative. DPS’s

subsequent DNA testing showed DNA profiles consistent with K.C.’s, but “there was an

insufficient amount of DNA foreign to the victim present on these items in order to develop an

interpretable Y-STR profile for comparison to the reference sample from Johnathan Cooper.” No

test established the presence of a male’s DNA that did not match Mr. Cooper’s DNA. “Thus, while

the test results did not add any further corroboration for appellant’s guilt, they also did not

affirmatively link someone else to the crime or conclusively exclude appellant’s commission of

it.” See Solomon v. State, No. 02-13-00593-CR, 2015 WL 601877, at *5 (Tex. App.—Fort Worth

Feb. 12, 2015, no pet.) (mem. op., not designated for publication). The question we must address

is “whether the inculpatory evidence—including Appellant’s guilty plea, judicial confession, his

testimonial confession, and other inculpatory evidence adduced at the Chapter 64 hearing—is so

undermined by the test results that it is reasonably probable that a fact-finder would not have

                                                   –9–
convicted Appellant had the tests been available at trial despite the inculpatory evidence.”

Dunning, 572 S.W.3d at 694. In light of the DPS test results’ inconclusiveness, we conclude Mr.

Cooper’s judicial confession is not so undermined by those results that it is reasonably probable

that a fact-finder would not have convicted him had the results been available when he entered his

plea. See id. We decide Mr. Cooper’s issue against him and affirm the trial court’s order.3


                                                                               /Cory L. Carlyle/
                                                                               CORY L. CARLYLE
                                                                               JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181246F.U05




     3
        To the extent Mr. Cooper seeks to complain of ineffective assistance of trial counsel, Chapter 64 does not “confer jurisdiction on appellate
courts to consider collateral attacks on the trial court’s judgment or to review, under the guise of a DNA testing appeal, anything beyond the scope
of those articles.” Reger, 222 S.W.3d at 513; cf. Ex parte Munoz, No. WR-28,195-06, 2015 WL 375925, at *1 (Tex. Crim. App. Jan. 28, 2015)
(order per curiam) (stating that if counsel misled defendant about DNA evidence in his case, that would warrant habeas relief).

                                                                      –10–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 JOHNATHAN EUGENE COOPER,                          On Appeal from the 297th District Court,
 Appellant                                         Tarrant County, Texas
                                                   Trial Court Cause No. 1031532D.
 No. 05-18-01246-CR        V.                      Opinion delivered by Justice Carlyle.
                                                   Justices Pedersen, III and Reichek
 THE STATE OF TEXAS, Appellee                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of December, 2019.




                                            –11–
