Issued August 30, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00043-CR
____________
EDWARD ESPARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 9406505
DISSENTING OPINION
Had the trial court ordered DNA testing in this case pursuant to Article 64.03, it is doubtful that the results of the test would do anything other than further inculpate appellant as the assailant--and, had this case been tried when such testing was widely available, it might have been done in preparation for the trial. But Article 64.03 requires that we assume that "exculpatory results" would be obtained for the purpose of considering whether to order a test to be conducted--that is, the statute requires a defendant to establish "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)(2)(A) (Vernon 2006). Whether that assumption turns out to be true or false is the subject of a different proceeding--in which appellant would bear the burden of proving by clear and convincing evidence that the test results are, indeed, exculpatory, and that with them in hand he would not have been convicted. The trial court here did not allow the test, though the State concedes both that testable evidence exists and that identity was contested at trial, with appellant calling several alibi witnesses and pointing out that the complaining witness was unable to identify him (though her aunt and sister both emphatically did).
Our court affirms the trial court's decision, concluding that it could not be possible for the DNA results in this case to be exculpatory because it is possible that the complaining witness had sex two days before the incident. In my view, the Court of Criminal Appeals' decision in Smith v. State rejects such a conclusion in the circumstances presented by this case. See 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2005) ("The evidence that the attacker did leave seminal fluid at the time of the attack, combined with the lack of any evidence that the victim had intercourse with anyone other than her attacker during the 24 hours preceding the exam indicates that the seminal fluid belongs to the attacker."). The assertion that a complaining witness possibly had sex two days before the incident does not render DNA test results so void of evidentiary weight so as not to order the test, as the plain language of the statute requires, given that the semen samples in this case were taken immediately after the offense.
The State relies upon a bench conference at appellant's trial, during which appellant's trial counsel refers to an offense report that stated that the complainant had sexual relations two days before the sexual assault offense. In its response to the motion for DNA testing, the State supported the bench conference colloquy with an affidavit from a prosecutor that his review of that offense report reflects that the complainant reported that she had sex two days before the offense. It is undisputed that no witness testified about any prior sexual activity of the complaining witness, nor has the State ever admitted the offense report as an exhibit. Relying on the bench conference and the State's affidavit, the State contends, and the majority agrees, assuming that another unknown male's DNA was found in the seminal fluid, and not appellant's, such "seemingly favorable test results would not constitute exculpatory evidence" because "[a]ny DNA not contributed by [appellant] could be attributed to the person with whom the complainant had sex prior to the [instant] offense."
This case is similar to Smith in that: (1) no evidence exists in the convicting court record or this record that the complaining witness had sex with anyone else in the 24 hours before she was assaulted; (2) the complaining witness testified that the seminal fluid of her attacker was present after the rape; and (3) a rape kit done almost immediately after the assault recovered seminal fluid. See 165 S.W.3d at 364-65 (holding that trial court erred in not ordering DNA testing where above facts were present). Assuming that the fluid does not match appellant's DNA (as we must for purposes of considering whether to order the test), it is likely to carry exculpatory weight. See id. at 365 (noting that there was "at least a 51% chance" that the defendant would not have been convicted if DNA test results did not match the defendant). The majority's holding disallows DNA testing based on an assertion that the complaining witness had sex two days earlier. As in Smith, such an assertion raises no more than a possibility that the DNA test results would not be exculpatory. Id. It is not a basis to deny the test in the first instance. The assertion of possible prior sexual activity in this case is too remote from the offense to conclude that DNA test results from evidence obtained after the offense would carry no evidentiary value-- rather, like in Smith, the DNA recovered after the attack in this case is more likely than not to belong to the attacker.
Because the majority's opinion presumes that the possibility of remote sexual activity (two days earlier, according to the prosecutor's accounting of the police report) negates any evidentiary weight of DNA test results performed on evidence retrieved immediately following the offense, inconsistent with the Court of Criminal Appeals' decision in Smith v. State, I respectfully dissent.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Justice Bland, dissenting.
Publish. Tex. R. App. P. 47.2(b)