COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00166-CR
JOHNNIE DUNNING APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 0632435D
OPINION
I. INTRODUCTION
Appellant Johnnie Dunning raises a single point challenging the “not
favorable” finding made by the trial court following post-conviction DNA testing
pursuant to chapter 64 of the Texas Code of Criminal Procedure. For the
reasons set forth below, we will sustain Dunning’s point, vacate the trial court’s
“not favorable” finding, and remand this case to the trial court for an entry of a finding that had the post-conviction DNA test results attained by Dunning been
available during the trial of the offense, it is reasonably probable that Dunning
would not have been convicted.1
II. FACTUAL BACKGROUND
The evidence and testimony presented at the chapter 64 DNA hearing
show the following factual background. In 1999 on the morning of Dunning’s jury
trial for the offense of aggravated sexual assault of a child by inserting his penis
into the complainant’s anus, after the jury had been sworn and Dunning had
entered a plea of “not guilty,” the trial court granted the State’s motion in limine to
1 The trial court’s May 17, 2017 order finds that “the post-conviction forensic DNA testing results do not cast affirmative doubt on the defendant’s guilt, and are, thus, NOT FAVORABLE, as defined by article 64.04 of the Texas Code of Criminal Procedure.” We note that article 64.04 was amended in 2003 (prior to Dunning’s 2010 motion for DNA testing and prior to the trial court’s May 17, 2017 order) to eliminate the use of the word “favorable.” See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of May 9, 2003, 78th Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16 (current version at Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2017)). Article 64.04 no longer uses this standard; under the current version of article 64.04, the convicting court “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. Thus, to the extent, if any, the trial court’s “not favorable” finding differs from a finding that had the results been available during the trial of the offense it is not reasonably probable the person would not have been convicted, because we review de novo this ultimate application-of-law-to-the-facts question not involving credibility and demeanor, we apply the current standard despite referring to the trial court’s finding as “not favorable.” See Whitfield v. State, 430 S.W.3d 405, 407 & n.1 (Tex. Crim. App. 2014) (recognizing trial court’s “unfavorable findings” equated to finding under article 64.04 that there was no reasonable probability that defendant would not have been convicted had the results been available at his trial); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (stating that this ultimate question is reviewed de novo on appeal).
2 exclude evidence of convictions by registered-sex-offender Lorne Clark and to
prevent Dunning from making any arguments or statements that Clark was the
actual assailant. Clark was the stepfather of, and lived in an apartment with, the
mentally impaired and hearing impaired twelve-year-old male complainant.
Dunning’s planned defense at trial was that Clark—not Dunning—had in fact
perpetrated the offense, and that Clark had influenced and manipulated his
stepson to identify Dunning––“the black man”—as the perpetrator in order to
steer the investigation away from himself.2 Dunning explained that his defense
2 At the chapter 64 DNA hearing, Dunning’s trial counsel, David Pearson, testified, in part, as follows:
Q. If you would, give us kind of a general -- and like I told the Judge in front of you a minute ago, I’m not asking to try this case. I just want to tell the Judge basically what the allegations were and kind of what the case was about in about 30 words or less.
[PEARSON]: Well, the young victim, and I won’t use his name, I don’t remember whether he was -- a pseudonym was in the indictment or not, but he said that in an apartment complex laundry room allegedly the black man had had sex with him, but the witness that claimed that he heard him say that was a registered sex offender living in the same apartment that had been convicted of aggravated sexual assault in another state and had moved to Texas and moved into the same family home and was also convicted in this county a month before Mr. Dunning for aggravated sexual assault of two children in the same apartment, and he was a witness.
Q. All right. Let me ask you this. Did you have a defense that you’d aligned in this case and gone over with Mr. Dunning about what y’all were going to try to defend this case with had he gone to trial?
[PEARSON]: Yes, and that was our defense.
3 would be based on the facts that: Clark had been previously convicted of first
degree sexual abuse of Clark’s stepdaughter in Arkansas; about a month after
Dunning’s arrest, Clark had been arrested for sexual assault of two other female
children who lived in the same apartment complex;3 and, a few weeks before
Q. Was that somebody else had committed the offense, had an opportunity to be around the victim and was a registered sex offender?
[PEARSON]: Well, and that plus the fact that the victim, it was in the report, was mentally challenged and deaf. He would have been in my opinion easy to manipulate, and you have a convicted sex offender that would be a master manipulator of children by definition, and he wasn’t used as an outcry, but he was the original witness number two that said that’s what the child said to me. I got raped. The black man raped me.
Q. Okay. Now, and ultimately this child, a victim, picked Mr. Dunning out of a photo spread; is that correct?
[PEARSON]: Correct.
Q. And so it was your defense, then, that you were trying to present to the Court essentially that someone else who was a bad person had potentially kind of steered the investigation away from himself and was a sex offender in his own right; is that correct?
[PEARSON]: Well, that, and in my opinion that plus sloppy police work. 3 Although it was suggested during the course of these proceedings that the two other female victims were the male complainant’s siblings and although neither Defendant nor the State appeared to dispute the suggestion, our review of the record leads us to believe that the two other female victims were living in the same apartment complex but were unrelated to the complainant. In either case, the record reflects that Clark was convicted of sexual assault of two other children, occurring during the same time period and at the same apartment complex as the instant sexual assault.
4 Dunning’s trial was scheduled to start, Clark had pleaded guilty to the sexual
assault of the two other female children.
In anticipation of presenting his defense at trial that Clark was the
perpetrator of the sexual assault on the complainant, Dunning had filed notice of
his intent to offer copies of Clark’s prior sexual abuse conviction in Arkansas.
When the trial court ruled that Dunning would not be able to present this
evidence, Dunning entered into a plea bargain. Dunning faced a life sentence
because of two prior credit card abuse convictions that are no longer classified
as felonies. When the State agreed to the minimum sentence of 25 years’
confinement and the trial court agreed to grant Dunning permission to appeal the
adverse ruling concerning the Lorne Clark evidence and arguments and also
permitted Dunning to make a bill of exception, Dunning entered a guilty plea
conditioned on these agreements.4
Although the State possessed a sexual assault kit containing various
swabs, as well as the complainant’s white shorts worn during and after the
assault,5 no DNA testing had been conducted on any of the items prior to trial.6
4 Dunning timely filed a motion for new trial asserting that his decision to plead guilty was an error and was done solely because the exclusion on the morning of trial of any evidence or arguments concerning Clark—the “platform” of his case—which had left him “frantically scrambling.” The trial court denied the motion. 5 The September 3, 1996 police report, also offered into evidence at the chapter 64 DNA hearing, established that the complainant did not bathe, wash his genitals, or change his clothes prior to the administration of the sexual assault kit by the Fort Worth Police Department.
5 6 Pearson testified about the significance DNA testing in this case:
Q. Was there DNA testing done in this case prior to the entry of a plea?
[PEARSON]: No.
Q. To your knowledge by the State or the Defense?
[PEARSON]: Right. Not to my knowledge, no DNA testing was done.
Q. There was some serology, but there wasn’t any actual DNA testing; is that correct?
....
Q. Have you ever tried a DNA case?
[PEARSON]: Have I tried cases involving DNA? Yes.
Q. In your opinion in a sexual assault case of a child who is alleging that he’s been anally sexually assaulted, would DNA findings on a piece of clothing the child was wearing at the time that had DNA on the back side of the pants or the underwear, if that was underwear that the child wore or was wearing, would that be relevant in the guilt or innocence of the defendant potentially?
[PEARSON]: Yes.
Q. A no result could mean something, correct?
[PEARSON]: Right.
Q. Certainly if it was the Defendant in that case’s DNA, that would be very good for the State, would it not?
6 In accordance with Dunning’s plea bargain conditioned on his right to
appeal the trial court’s ruling concerning the Lorne Clark evidence and
arguments, Dunning did appeal. Seventeen years ago, this court affirmed
Dunning’s conviction, noting that the case “presented a very close question” and
that other than the complainant’s identification of Dunning in a photographic line-
up, “[n]o other evidence linked [Dunning] to the offense.” Dunning v. State, No.
02-99-00311-CR, pp. 2, 5 (Tex. App.—Fort Worth, Feb. 22, 2001, pet. ref’d) (not
designated for publication).
III. PROCEDURAL BACKGROUND CONCERNING POST-CONVICTION DNA TESTING
In 2010, Dunning began requesting a post-conviction DNA test pursuant to
chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.
art. 64.01 (West Supp. 2017). Ultimately, after an approximately four-year delay
for reasons not relevant here, the trial court ordered the Department of Public
Q. And if the DNA findings were some third party unknown that were not the Defendant and not the perpetrator, that could also be relevant, correct?
Q. And in that last instance is it your opinion that that could be relevant and material in a jury finding that the person was not guilty if they believed all that?
[PEARSON]: Yes. It would be relevant.
Q. It could go either way, but it would certainly be something that would be relevant; would you agree with that?
[PEARSON]: Yes, no question.
7 Safety to conduct DNA testing of the complainant’s white shorts and several
additional items in the sexual assault kit but denied Dunning’s request for
counsel at that time.7
The DPS Crime Laboratory determined the proper locations for testing and
tested portions of the white shorts but found no interpretable DNA profile. Thus,
the State moved for an entry of a not favorable finding. On June 9, 2015, the trial
court found that the lab results were inconclusive and entered a not favorable
finding. During his appeal of the June 9, 2015 not favorable finding, Dunning
was appointed counsel, and he filed a motion to dismiss his appeal, which we
granted. See Dunning v. State, No. 02-15-00222-CR, 2015 WL 5722605, at *1
(Tex. App.—Fort Worth Aug. 26, 2015, no pet.) (mem. op., not designated for
publication).
Dunning then sought to conduct his own DNA testing and the trial court
authorized the Serological Research Institute (SERI) to conduct the testing. Amy
Lee, a forensic serologist at SERI, tested items, which included the white shorts,
items in the sexual assault kit, and various swabs. The results and
interpretations of SERI’s testing are found in Lee’s July 18, 2016 report. Lee’s
report concerning SERI’s testing contains seven different conclusions, including
that Dunning was excluded as a donor of the DNA on all of the items tested
(conclusions 2–5) and that, in addition to DNA of the complainant, there was also
7 But see Tex. Code Crim. Proc. Ann. art. 64.01(c).
8 DNA from a different person on the “crotch swab” of complainant’s white shorts
(conclusion 4).8 Lee also concluded that both the complainant and Dunning were
excluded as contributors to the DNA on the waistband swab of the white shorts
(conclusion 5).
The State requested that Dr. Bruce Budowle review SERI’s testing and the
conclusions in Lee’s report. The State filed an affidavit from Dr. Bodowle in
which he agreed with all of Lee’s conclusions except for part of conclusion 5,
which excluded the complainant as a possible contributor of the DNA located on
the white shorts waistband swab. Dr. Budowle stated, “While I agree that
Johnnie Dunning can be excluded as a possible contributor of the major portion
of the mixture, the victim . . . cannot be excluded as a possible contributor . . . .”
Thus, even in his disagreement about part of conclusion 5, Dr. Budowle still
agreed with Lee that none of Dunning’s DNA was found on any of the items
tested.
On February 28, 2017, the trial court conducted a chapter 64 DNA hearing
and received testimony from Dunning’s trial counsel, Amy Lee, Dr. Budowle, and
Dunning. As set forth in the footnoted quotations from Dunning’s trial counsel’s
testimony at the chapter 64 DNA hearing, Dunning’s planned trial defense was to
suggest that Clark––who was a registered sex offender, who had been convicted
in Arkansas of sexual abuse of his stepdaughter, who had been convicted of
8 It was suggested at oral argument that this third-party DNA was specifically male DNA.
9 sexual assault of two other children who lived in complainant’s apartment
complex, and who had helped the complainant report the offense and identify
Dunning as the assailant––was actually the perpetrator. The trial court’s
morning-of-trial ruling excluding this evidence after Dunning had pleaded not
guilty led to the plea bargain and Dunning’s guilty plea. Dunning’s trial counsel
opined that DNA findings on the complainant’s clothing including a third person,
not the victim and not Dunning, and excluding Dunning as a contributor to all
DNA tested, would have been material and relevant to Dunning’s guilt or
innocence but that there was no DNA testing done prior to Dunning’s guilty plea.
The trial court also heard testimony from Amy Lee and Dr. Budowle. Both
Lee and Dr. Budowle agreed that Dunning’s DNA was not found present on any
of the items tested.9 Lee was asked about her conclusions, and in particular, her
findings about the complainant’s white shorts:
9 The State conceded that the post-conviction DNA testing excluded Dunning as a contributor of any DNA found on any of the items tested:
[PROSECUTOR]: I don’t think -- I don’t think anybody is disputing that Mr. Dunning’s DNA is not on any of these items. I think Ms. Lee said that; I think Dr. Budowle said that.
[DEFENSE COUNSEL]: He’s [Dunning] excluded in more than one place, and that’s not in dispute. I mean he is absolutely excluded as being the contributor to the DNA anywhere in this case.
THE COURT: And that’s -- you do agree with that, [Prosecutor]?
10 Q. So what you’re saying in summary is the DNA on the victim’s shorts, and this is -- if we go back and look, these are shorts that the swab actually came from -- where was the swab? What part of the underwear did the swab touch? It’s the rear area of the pants; is that right?
A. I believe it was described as ‘crotch.’
Q. And that sample there has two people’s DNA, right?
A. At least, yes.
Q. One of them belongs to the victim, right?
A. Correct.
Q. And the other one does not belong to Johnnie Dunning; is that right?
A. That’s correct.
Thus, Lee’s testimony confirmed that DNA existed on the complainant’s white
shorts that was not attributable to Dunning or to the complainant.10
[PROSECUTOR]: Yes, I do agree with that. 10 Conclusions 4 and 5 set forth in Lee’s report provide:
4. A mixture of at least two individuals was obtained from the shorts crotch swab (02-01-AB, item 4-4) and the shorts crotch extract (02- 01 AB, item 5-2). Victim RFF is included as the major contributor to both mixtures and the chance that another random person unrelated to him could be similarly included is approximately one in one billion for items 4-4 and 5-2. Johnnie Dunning is excluded as a possible contributor to both mixtures.
5. A mixture of a least two individuals was obtained from the shorts waistband swab (02-01-AA, item 4-3). Victim RRF and Johnnie Dunning are both excluded as possible contributors to the major portion of this mixture. There is insufficient information in the minor component of this mixture for any conclusions to be made.
11 With only slight variances, Dr. Budowle’s live testimony reaffirmed his
affidavit, which provided that he was in agreement with SERI’s conclusions
except for part of conclusion 5. Dr. Budowle testified live that he was “cautious”
concerning SERI’s conclusion 4 although he did not disagree outright with it. Dr.
Budowle also expressed some disagreement on how SERI performed its
statistical analysis, but stopped short of any type of reliability challenge to the
protocols utilized by SERI in obtaining statistical data. Ultimately, Dr. Budowle
testified on cross-examination:
[DEFENSE COUNSEL]: Q. But the fact of the matter is you don’t have any dispute that this little boy’s underwear has got his DNA on it and got somebody else’s DNA on it, right?
A. I don’t dispute that, no.
[DEFENSE COUNSEL]: Q. And that somebody else’s DNA is not Johnnie Dunning’s?
Dunning testified that identity was an issue at the trial.
After hearing and considering all of the above evidence, the trial court
entered a “not favorable” finding under article 64.04 after finding that the post-
conviction DNA testing results did “not cast affirmative doubt on the defendant’s
guilt[.]” The trial court did not enter separate findings.
IV. STANDARD OF REVIEW
When reviewing a trial court’s finding in a chapter 64 post-conviction-DNA-
test proceeding as to whether, had the results been available during the trial of
12 the offense, it is reasonably probable that the person would not have been
convicted, we apply the same standard of review applied to review a trial court’s
ruling granting or denying DNA testing under article 64.03. See Tex. Code Crim.
Proc. Ann. arts. 64.03, 64.04 (West Supp. 2017); Asberry v. State, 507 S.W.3d
227, 228–29 (Tex. Crim. App. 2016) (explaining that “we do not see any reason
to treat a review of a ruling pursuant to Article 64.04 differently than a ruling
pursuant to Article 64.03”). That is, we use the familiar bifurcated standard of
review articulated in Guzman v. State: we give almost total deference to the
judge’s resolution of historical fact issues supported by the record and
applications-of-law-to-fact issues turning on witness credibility and demeanor and
we review de novo all other application-of-law-to-fact questions. 955 S.W.2d 85,
89 (Tex. Crim. App. 1997); see also Reed v. State, No. AP-77,054, 2017 WL
1337661, at *6 (Tex. Crim. App. Apr. 12, 2017), petition for cert. filed, (U.S. Feb.
1, 2018) (No. 17-1093); Rivera, 89 S.W.3d at 59. We review the entire record,
that is, all of the evidence that was available to, and considered by, the trial court
in making its ruling, including testimony from the original trial. Asberry, 507
S.W.3d at 228. The ultimate question of whether a reasonable probability exists
that exculpatory DNA tests would have caused the appellant to not be convicted
“is an application-of-the-law-to-fact question that does not turn on credibility and
demeanor and is therefore reviewed de novo.” See Rivera, 89 S.W.3d at 59.
13 V. THE LAW CONCERNING FINDINGS ON POST-CONVICTION DNA TESTING
The purpose of post-conviction DNA testing is to provide a means through
which a defendant may establish his innocence by excluding himself as the
perpetrator of the offense of which he was convicted. See Blacklock v. State,
235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007). Chapter 64 of the code of
criminal procedure provides that a convicted person may submit a motion to the
convicting court to obtain post-conviction DNA testing. Tex. Code Crim. Proc.
Ann. art. 64.01; Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011).
If such DNA testing is conducted, the convicting court 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; see also Solomon v. State,
No. 02-13-00593-CR, 2015 WL 601877, at *4 (Tex. App.—Fort Worth Feb. 12,
2015, no pet.) (mem. op., not designated for publication). The defendant may
appeal a trial court’s finding that even if DNA testing results had been available
during the trial of the offense, it is not reasonably probable that the person would
not have been convicted. See Tex. Code Crim. Proc. Ann. art. 64.05 (West
2006); Whitfield, 430 S.W.3d at 409.
To be entitled to a finding that, had the results been available during the
trial of the offense, it is reasonably probable that the person would not have been
convicted, “[t]he defendant must prove that, had the results of the DNA test been
available at trial, there is a 51% chance that the defendant would not have been
14 convicted.” Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d); Medford v. State, No. 02-15-00055-CR, 2015 WL
7008030, at *3 (Tex. App.—Fort Worth Nov. 12, 2015, pet. ref’d) (mem. op., not
designated for publication). A defendant is not required to establish actual
innocence to be entitled to a favorable finding. See Glover, 445 S.W.3d at 862.
VI. ANALYSIS
On appeal, the State argues that the lack of Dunning’s DNA on any of the
items tested does not establish Dunning’s innocence and that even if the DNA
test results are exculpatory, Dunning’s judicial admission and the complainant’s
identification of Dunning from a photographic line-up are sufficient evidence of
Dunning’s guilt to preclude a finding that had the results of the DNA test been
available at trial, there is a 51% chance that the defendant would not have been
convicted. Concerning the results of the DNA tests, the State does not mention
or address the DNA testing of the “shorts crotch swab” or the “shorts crotch
extract” test results set forth in Lee’s conclusion 4––that a mixture of at least two
individuals’ DNA was found on both the “shorts crotch swab” and the “shorts
crotch extract” and that although the complainant was the major contributor to
both mixtures, Dunning was excluded as a contributor to both mixtures. Instead,
the State focuses its arguments on the “waistband swab” DNA test results set
forth in Lee’s conclusion 5 to argue that “it can be presumed that the trial court
agreed that [the complainant] could not be excluded as a potential contributor to
15 the DNA profile obtained from the waistband swab, and that the presence of
minor DNA profiles did not establish an alternate perpetrator.”
Dunning, on the other hand, focuses his arguments on the “shorts crotch
swab” and the “shorts crotch extract[,]” Lee’s conclusion 4, and Dr. Budowle’s
agreement with Lee’s conclusion 4 that the “shorts crotch swab” contained a
mixture of the complainant’s DNA and the DNA of another person who was not
Johnnie Dunning. Dunning argues that—because the complainant was still
wearing the white shorts when he was taken to the hospital; because police
seized the shorts from the hospital; because the police report documents that the
complainant did not bathe, wash his genitals, or change his clothes, or otherwise
interrupt the “chain of custody” of the items tested; and because Lee and Dr.
Budowle agree that a third person’s DNA was found in the “shorts crotch swab”
and the “shorts crotch swab extract”—if this exculpatory DNA evidence had been
available during the trial of the offense, it is reasonably probable that Dunning
would not have been convicted.
First, we agree with Dunning that the post-conviction DNA test results in
this case excluding him as a contributor to any DNA found on any item tested
and establishing the existence of another DNA contributor––that is not Dunning
and is not the complainant––to a mixture of DNA on the complainant’s shorts in
the “shorts crotch swab” and the “shorts crotch extract” is exculpatory. See, e.g.,
Reed, 2017 WL 1337661, at *6 (explaining that exculpatory results are
necessarily results excluding the convicted person as the donor of the material).
16 This is not a case, like those relied upon by the State, where DNA evidence of
the convicted defendant is simply absent or where the DNA evidence is
inconclusive as to whether the convicted defendant was a contributor. See, e.g.,
Booker v. State, 155 S.W.3d 259, 266–67 (Tex. App.—Dallas 2004, no pet.)
(upholding trial court’s negative finding because DNA testing did not exclude
appellant as the assailant); Fuentes v. State, 128 S.W.3d 786, 787 (Tex. App.—
Amarillo 2004, pet. ref’d) (upholding trial court’s negative finding when post-
conviction DNA testing revealed DNA profile from the sperm fraction of the
semen on the victim’s panties to be consistent with a mixture of the convicted
defendant and the victim). Nor is this a case where the effect of exculpatory
DNA evidence is to merely muddy the waters. LaRue v. State, 518 S.W.3d 439,
446 (Tex. Crim. App. 2017) (“The required showing [for DNA testing] has not
been made if exculpatory test results would ‘merely muddy the waters.’”) (quoting
Rivera, 89 S.W.3d at 59). In this case, the post-conviction DNA test results do
more than merely exclude Dunning as a contributor; there is additional DNA
evidence. Both the State’s expert Dr. Budowle and the defense expert Amy Lee
agree that another person contributed DNA to the “shorts crotch swab” and the
“shorts crotch extract” and agreed that this other person was not the complainant
or Dunning.
Concerning Dunning’s judicial confession, we note that chapter 64
expressly contemplates and authorizes post-conviction DNA testing even after a
guilty plea. Tex. Code Crim. Proc. Ann. art. 64.03(b). Based on the clear
17 language in article 64.03, the court of criminal appeals has recognized that “[a]n
appellant who entered a guilty plea is no more, or less, entitled to a favorable
ruling on his Chapter 64 motion [for DNA testing] than one who plead[s] not
guilty.” Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Thus, the
mere fact that Dunning pleaded guilty cannot automatically render it not
reasonably probable that had the DNA results been available during trial he
would not have been convicted, or else there would be no reason to permit post-
conviction DNA testing after guilty pleas. Accord Blacklock, 235 S.W.3d at 232
(reversing trial court’s denial of post-conviction DNA testing despite defendant’s
guilty plea because “exculpatory DNA test results, excluding appellant as the
donor of this material, would establish appellant’s innocence”). And here,
Dunning’s judicial confession must be viewed in the context of the record before
us showing the posture of his case when he made it. See Asberry, 507 S.W.3d
at 228 (instructing appellate courts that in reviewing a trial court’s article 64.04
finding, we review the entire record to determine whether appellant established
that he would not have been convicted). That posture is that the day before his
guilty plea, Dunning had entered a plea not guilty. He was prepared for a jury
trial, but on the morning of trial, any evidence of Clark’s prior convictions for
sexual abuse of his stepdaughter in Arkansas and argument concerning the
“platform” of his defense—that Clark was the actual assailant—was excluded
when the trial court granted the State’s motion in limine. So, Dunning changed
his plea to guilty and made a judicial confession to attain a plea-bargained
18 sentence of the 25-year minimum because his indictment alleged two prior felony
convictions for credit card abuse and because he faced a life sentence.
Concerning the inculpatory evidence against Dunning consisting of the
complainant’s identification of him from a photographic line-up, again, the court of
criminal appeals has recognized in the context of chapter 64 motions for post-
conviction DNA testing, following a sexual assault conviction,
eye-witness identification of [appellant] is of no consequence in considering whether [appellant] has established that, by a preponderance of the evidence, exculpatory DNA tests would prove his innocence. In sexual assault cases like this, any overwhelming eye-witness identification and strong circumstantial evidence . . . supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exculpatory DNA evidence would prove his innocence under Article 64.03(a)(2)(A).
Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (emphasis
added). Thus, again, the mere fact that the complainant identified Dunning in a
photographic line-up cannot automatically render it not reasonably probable that
had the DNA results been available during trial he would not have been
convicted, or else there would be no reason to permit post-conviction DNA
testing if a complainant identifies the alleged defendant. We must consider the
complainant’s identification of Dunning along with the undisputed facts that the
complainant was twelve years old, was mentally impaired and hearing impaired,
lived with Clark, and according to Dunning’s trial counsel, could have been easily
manipulated by Clark to deflect suspicion away from himself, and that Clark had
19 spoken to police and reported that the complainant had said that “a black man
raped me.”
In summary, examining the entire record, giving almost total deference to
the trial court’s resolution of disputed historical fact issues supported by the
record and applications-of-law-to-fact issues turning on witness credibility and
demeanor, the record before us reflects: that Dunning had pleaded not guilty;
that Dunning was prepared to begin trial before a jury, that Dunning signed a
judicial confession the morning of trial only after the trial court ruled he could not
present Clark’s Arkansas conviction to the jury or mention or present arguments
concerning Clark; that Dunning faced up to a life sentence and that, in exchange
for his guilty plea and judicial confession, the State agreed to the minimum 25-
year sentence; that within three weeks of his guilty plea Dunning filed a pro se
motion for new trial explaining that his decision to plead guilty was an error and
was made based on the exclusion on the morning of trial of any evidence or
arguments concerning Clark—the “platform” of his case—which had left him
“frantically scrambling”; that identity was an issue––in fact, the only issue; that
the DNA test results established the absence of Dunning’s DNA on all tested
items––including the crotch of complainant’s shorts worn during the sexual
assault and not removed until the complainant reached the hospital; that the DNA
test results established that not only was Dunning’s DNA not present in the
“shorts crotch swab,” but that another person’s DNA was present there along
with the complainant’s DNA; and that Dunning’s and the State’s experts both
20 agreed that another person––who was not Dunning and not the complainant––
had contributed DNA to the “shorts crotch swab” tested and to the “shorts crotch
extract” tested. In light of all of these facts—including Dunning’s judicial
confession and the complainant’s identification of Dunning from a photographic
lineup—applying a de novo standard of review to the application-of-the-law-to-
the-fact-issue of whether Dunning has proved that had the post-conviction DNA
test results we now have been available during the trial of the offense it is
reasonably probable that he would not have been convicted, we hold that he has
so proven by a preponderance of the evidence; that is, there is a 51% chance
that a reasonable juror would have had a reasonable doubt about Dunning’s guilt
had the current post-conviction DNA test results been available at the time of
trial. See Tex. Code Crim. Proc. Ann. art. 64.04; Glover, 445 S.W.3d at 861;
accord Routier v. State, 273 S.W.3d 241, 259 (Tex. Crim. App. 2008) (reversing
order denying DNA testing of certain items because such testing could add DNA
evidence “to the evidentiary mix” that would have corroborated appellant’s theory
of an alternate assailant and “could readily have tipped the jury’s verdict in
appellant’s favor”); State v. Long, No. 10-14-00330-CR, 2015 WL 2353017, at *3
(Tex. App.—Waco May 14, 2015, no pet.) (mem. op., not designated for
publication) (affirming a trial court’s “favorable” finding when “there was no DNA
evidence found on any evidence that matched the profile of [appellee]”);
Solomon, 2015 WL 601877, at *5 (affirming a trial court’s not favorable finding
because even though “the test results did not add any further corroboration for
21 appellant’s guilt, they also did not affirmatively link someone else to the crime or
conclusively exclude appellant's commission of it”) (emphasis added).
We sustain Dunning’s sole point.
VII. CONCLUSION
Having held that Dunning established a reasonable probability that he
would not likely have been convicted had the post-conviction DNA testing been
available at the time of trial, we sustain Dunning’s sole point of error, vacate the
trial court’s May 17, 2017 “not favorable” finding, and remand this case to the trial
court for an entry of a finding that had the post-conviction DNA test results
attained by Dunning been available during the trial of the offense, it is reasonably
probable that Dunning would not have been convicted.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: WALKER, MEIER, and KERR, JJ.
PUBLISH
DELIVERED: March 1, 2018