Opinion
No. 05-05-00400-CR
Opinion issued March 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-02307-ST. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Pete S. Sanchez appeals the trial judge's findings following post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(c) (Vernon Supp. 2005). In two points of error, appellant contends the trial judge erred in failing to order testing of all evidence available and "summarily holding" that the DNA test results were not favorable to him. We affirm the trial court's order. Appellant was charged with the sexual assault of Margarita Sanchez. During trial, Sanchez testified she knew appellant because he dated a friend of hers. According to Sanchez, she and her boyfriend, Gerardo Veloz, were sitting in his pick-up truck late one night when four men suddenly appeared. The two men at the driver's side of the truck held Veloz down and robbed him while appellant and the fourth man sexually assaulted Sanchez. When the assault began, she asked appellant to help her but he laughed at her. Sanchez testified that appellant removed her clothes and raped her, then the fourth man raped her. Sanchez did not know if either man ejaculated inside her. Sanchez admitted that she and Veloz had sexual relations within twenty-four hours before her rape examination. Other evidence presented at trial included the testimony of Joani Whitmore, a DNA analyst for the Southwest Institute of Forensic Science ("SWIFS). Whitmore performed DNA tests using appellant's blood, Sanchez's blood, and a "vaginal swab" taken from Sanchez. Whitmore testified that fluids from more than one individual were present in the vaginal swab but could neither include or exclude appellant as being one of those individuals. After the jury found appellant guilty, the trial judge assessed punishment at forty-five years' confinement. The Eastland Court of Appeals affirmed appellant's conviction. Sanchez v. State, No. 11-97-00146-CR, 1999 WL 33743896 (Tex.App.-Eastland Feb. 18, 1999, pet. ref'd) (not designated for publication). Thereafter, appellant filed a motion for post-conviction DNA testing. On February 3, 2004, the trial judge granted appellant's motion for post-conviction DNA testing of the vaginal smear and vaginal swab in SWIFS's possession. The analysis was performed, and the results were subsequently examined by defense expert Dr. Robert Benjamin. During the January 2005 hearing on the post-conviction DNA testing, appellant conceded that his expert concurred with the laboratory results which "found that there was DNA contributions from the victim in this case, [and] the boyfriend . . . [but] could not distinguish another contributor in the case." At the conclusion of the hearing, the trial judge found the results were inconclusive and were not favorable to appellant. After the entry of the trial court's article 64.04 findings on the results of the post-conviction DNA testing, appellant filed this appeal. In his two points of error, appellant contends the trial judge erred in (i) failing to order "complete testing of all of the evidence that contains DNA samples since the evidence is readily available" and (ii) holding the DNA test results were not favorable to appellant. After reviewing the record in this case, including the record from appellant's original trial, we cannot agree. With respect to his complaint that the trial judge failed to order complete testing of all the readily available evidence, we note that, on February 3, 2004, the trial judge signed the order granting appellant's motion and ordering testing of the vaginal swab and smear because they were "the most probative pieces of evidence regarding the identity of the assailants." At that time, appellant did not object nor did he file a motion to reconsider his request for testing of all "readily available" evidence. Moreover, at the hearing after the DNA testing was completed, appellant did not object to the failure to test other evidence. As a general rule, to preserve a complaint for appellate review, a party must present to the trial judge a timely request, objection or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a)(1)(A). This informs the trial judge of the basis of the objection and affords the judge the opportunity to rule at the time the purported error or complaint arises. See Castillo v. State, 79 S.W.3d 817, 827-28 (Tex.App.-Dallas 2002, pet. ref'd) (citing Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App. 1988)). In this case, because appellant did not present his complaint first to the trial judge, we conclude he has failed to preserve this issue for appellate review. Furthermore, even if we were to assume that, in ordering the testing of the vaginal swab and smear, the trial judge implicitly denied appellant's request to test the remaining evidence, we would nevertheless conclude the judge did not err. It is unlikely that the evidence not tested-blood found on Sanchez's clothing-could establish appellant did not sexually assault Sanchez. Because DNA testing of this evidence would not establish appellant would not have been convicted, the trial judge could not have erred in denying that testing. We overrule appellant's second point of error. We now turn to appellant's remaining complaint-that the trial judge erred in holding the DNA test results were not favorable to appellant. Article 64.04 provides that, after examining the results of post-conviction DNA testing, the trial judge
shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp. 2005). As we noted in Booker v. State, the court of criminal appeals has not established the standard of review of a trial judge's finding under article 64.04. Booker v. State, 155 S.W.3d 259, 266 (Tex.App.-Dallas 2004, no pet.). Nevertheless, after considering the interpretation of the court of criminal appeals with respect to similar language in article 64.03(a)(2)(A), we concluded that a trial judge
does not err by finding a post-conviction DNA result `not favorable' if the test result fails to demonstrate a reasonable probability that the convicted person is innocent.Booker, 155 S.W.3d at 266; see Baggett v. State, 110 S.W.3d 704, 706 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We also concluded that, in reviewing the trial court's order, we apply the standard of review set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Booker, 155 S.W.3d at 266. When, as in this case, the question of whether the post-conviction DNA test results demonstrate a reasonable probability of the accused's innocence does not turn on determinations of the witness's credibility, we review de novo the trial judge's finding that the post-conviction DNA test results were "not favorable." Booker, 155 S.W.3d at 266 (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002)). Thus, we will conclude a trial judge does not err in finding post-conviction DNA test results "not favorable" if the test results fail to demonstrate a reasonable probability that appellant is innocent. See Booker, 155 S.W.3d at 266 (citing Baggett, 110 S.W.3d at 706). A review of the record in this case shows DNA testing was performed on the vaginal swab and vaginal smear slides taken from Sanchez and known blood samples from appellant, Sanchez, and Veloz. The DNA testing established that the DNA profile from the sperm fraction of the vaginal swab was consistent with Veloz's DNA profile. The DNA testing established the only male profile detected was attributable to Veloz and that appellant was excluded as a contributor to the sperm fraction of the vaginal swab. The DNA profile from the epithelial cell fraction was also consistent with a mixture from Sanchez and Veloz. Therefore, appellant did not contribute any biological material to the vaginal swab taken during Sanchez's rape examination. Nevertheless, at trial, Sanchez testified appellant raped her and that she knew appellant because he dated a friend of hers. She also testified she had sexual intercourse with Veloz within the twenty-four-hour period before her rape examination and that she did not recall if either appellant or the other man ejaculated inside her. Therefore, although the DNA testing excludes appellant as a contributor to the sperm fraction in the vaginal swab, the DNA testing results did not, in light of Sanchez's testimony at trial, establish that had the results been available during trial, it was "reasonably probable that [appellant] would not have been convicted." See Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon Supp. 2005). Because the DNA test results fail to demonstrate a reasonable probability that appellant is innocent, we cannot conclude the trial judge erred in finding the post-conviction DNA test results "not favorable" to appellant. See Booker, 155 S.W.3d at 266 (citing Baggett, 110 S.W.3d at 706). We overrule appellant's first point of error. We affirm the trial court's order.