                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-339-CR


JOHN CHARLES SPURLOCK                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION 1

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      This appeal is from the trial court’s denial of appellant’s second motion

for DNA testing. In a single issue, appellant challenges the denial, contending

that the law has changed since the trial court considered his first motion for

DNA testing. We affirm.




      1
          … See Tex. R. App. P. 47.4.
      Appellant pled guilty to aggravated sexual assault of his daughter.

Spurlock v. State, No. 02-03-00269-CR, 2004 WL 102351, at *1 (Tex.

App.—Fort Worth Jan. 22, 2004, pet. ref’d) (mem. op., not designated for

publication). He filed a motion for postconviction DNA testing in 2003, which

the trial court denied. Id. This court affirmed the denial on the ground that

identity was not at issue because the State presented a statement from

appellant’s daughter indicating that appellant had sexually assaulted her

beginning when she was four and continuing until she was eleven. Id.

      Appellant filed a second motion for postconviction DNA testing in

November 2007, contending that the law about identity being at issue had

changed and that under the new law, he was entitled to testing. The trial court

denied the second motion. The trial court filed the following pertinent findings

of fact and conclusions of law regarding his 2007 motion:

                             FINDINGS OF FACT

            ....

      7.    The Defendant testified that he had read the victim’s diary
            and that she had said that she believed she was pregnant.
            The Defendant testified that his wife had informed him of a
            relationship that the victim was having with a person who
            was then the victim’s boyfriend and was the victim’s
            husband at the time of the hearing. The Defendant testified
            that he tried to put a stop to the relationship. The Defendant
            testified that the boyfriend had been having sex with the
            victim on a regular basis before the victim got mad at the

                                       2
           Defendant. The Defendant testified that DNA testing would
           be important and would show that he was not the
           perpetrator and that there was another person involved who
           was being protected at the time.

     8.    The Defendant testified that his defense in a new trial would
           be that he did not do “this act” and that the victim’s
           boyfriend who was being protected by the victim did “this
           act.” The Defendant testified that he pled guilty and that the
           issue in his case is whether or not the Defendant did what
           the victim said the Defendant did.

           ....

                          CONCLUSIONS OF LAW

     1.    Identity was not and is not an issue in the Defendant’s case.

     2.    On June 17, 2003, after an evidentiary hearing, this Court
           found that identity was not or is not an issue in the
           Defendant’s case.

     3.    This Court’s previous finding that identity was not and is not
           an issue in this case was appealed to the Court of Appeals,
           Second District of Texas. That Court affirmed this Court’s
           judgment. . . .

           ....

     5.    Even if exculpatory results had been obtained through DNA
           testing, the Defendant would have been convicted.


     On appeal, appellant challenges the trial court’s denial of both his 2003

and 2007 motions for postconviction DNA testing.        Appellant has already

exhausted all appeals from the trial court’s ruling on the 2003 motion (under



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the law applicable to that motion) and failed to obtain relief; he cannot complain

about that ruling in this proceeding. See Ex parte Reyes, 209 S.W.3d 126,

126–27 (Tex. Crim. App. 2006). Accordingly, we review only the trial court’s

ruling on the 2007 motion. Under the version of article 64.03 applicable to his

2007 motion, appellant was entitled to DNA testing if identity was or is an

issue and a reasonable probability exists that he would not have been convicted

if exculpatory results had been obtained through DNA testing. Tex. Code Crim.

Proc. Ann. art. 64.03(a)(1)(B), (2)(A) (Vernon Supp. 2008).

      That the victim knew the perpetrator is not conclusive of whether identity

is at issue. The court of criminal appeals has held that

      [t]he language and legislative history of Article 64.03(a)(1)(B) make
      it very clear that a defendant, who requests DNA testing, can make
      identity an issue by showing that exculpatory DNA tests would
      prove his innocence. This applies even when a defendant has pled
      guilty, thereby conceding the issue of identity at trial.

Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007). But that

court has also made it equally clear that the presence of a third person’s DNA

is not always exculpatory, depending on the other evidence in the case. Prible

v. State, 245 S.W.3d 466, 470 (Tex. Crim. App.) (“[I]f DNA testing would not

determine the identity of the person who committed the offense or would not

exculpate the accused, then the requirement of Article 64.03(a)(2)(A) has not

been met.”), cert. denied, 129 S. Ct. 54 (2008). Thus, when the complainant

                                        4
knows an accused, that accused can make identity an issue if the presence of

third-party DNA would actually exonerate the accused. Prible, 245 S.W.3d at

470; Blacklock, 235 S.W.3d at 233.

      Appellant’s implication in his DNA motions is that the complainant made

up her story because she was mad at him for trying to put a stop to her

relationship with her boyfriend. But even if DNA testing showed the presence

of the boyfriend’s semen (thus, proving that the complainant was indeed having

sex with him), that evidence does not necessarily prove that the complainant

was lying when she told the police that appellant had sexually assaulted her for

seven years when she was between four and eleven. This is not a one-time

assault by a lone attacker as in Blacklock.     235 S.W.3d at 231–32.         The

presence of the complainant’s boyfriend’s DNA on the testable evidence would

merely raise an issue of the complainant’s credibility, which is for resolution by

the factfinder; it would not show a reasonable probability that appellant would

not have been convicted. Cf. In re Kennard, No. 03-07-00308-CR, 2008 WL

899606, at *2 (Tex. App.—Austin Apr. 3, 2008, no pet.) (mem. op., not

designated for publication) (holding that trial court did not err by denying DNA

testing when defendant admitted having sex with complainant but sought DNA

testing to determine identity of second man whose semen was found to

undermine complainant’s testimony that sex was not consensual); Lewis v.

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State, 191 S.W.3d 225, 228 (Tex. App.—San Antonio 2005, pet. ref’d)

(holding that trial court did not err by denying DNA testing for defendant who

admitted having sex with minor but sought testing to prove minor was

promiscuous). Accordingly, we conclude and hold that the trial court did not

err by denying appellant’s motions for DNA testing. We overrule his issue on

appeal.2

      Having overruled appellant’s sole issue, we affirm the trial court’s order

denying DNA testing.




                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: LIVINGSTON, GARDNER and WALKER, JJ.

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

DELIVERED: June 4, 2009




      2
       … We strike appellant’s pro se “1st Motion To Supplementation &
Amendment To Brief Of Appellant John Charles Spurlock, Pursuant To TRAP
Rule 38.7.” See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981);
Berry v. State, 278 S.W.3d 492, 495 (Tex. App.—Austin 2009, pet. filed).
Regardless, it does not raise any matters that would change the outcome of this
appeal.

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