Affirmed and Memorandum Opinion filed July 12, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00959-CR
Pete Perez, Appellant
v.
The State of Texas, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 757191
MEMORANDUM OPINION
On August 26, 1998, appellant Pete Perez was convicted by a jury of the offense of sexual assault and sentenced to 30 years’ confinement. This court affirmed appellant’s conviction on direct appeal on June 1, 2000. Perez v. State, 21 S.W.3d 628 (Tex. App.—Houston [14th Dist.] 2000, no pet.). On April 14, 2003, Perez filed a request for appointment of counsel for the purpose of post-conviction DNA testing. On December 31, 2008, appellant’s appointed counsel filed a motion for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The convicting court granted appellant’s requested testing and thereafter held a hearing regarding the results. Appellant now appeals from the trial court’s finding that the test results were “not favorable” to him. We affirm.
DNA Hearing
Pursuant to the trial court’s order, Jennifer Watson, a DNA analyst for the Texas Department of Public Safety Crime Laboratory, examined the shorts that the complainant, M.B., wore on the night she was sexually assaulted, as well as certain other evidence. Watson testified at the hearing on August 12, 2010, that DNA testing had established that there was blood but no semen on the shorts. The testing further revealed that some of the stains were mixtures of blood from M.B. and an individual identified as Jimmy Luna. Appellant was excluded as a contributor as to all DNA present in the evidence.
Analysis
In his sole issue, appellant contends that the trial court erred in finding that the results were not favorable to him. Appellant principally argues that the DNA test results, which excluded him as a source of the blood found on M.B’s shorts, established a reasonable probability of his innocence.
Once a trial court has ordered and received DNA test results, the court must “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. art. 64.04. The trial court specifically ruled that appellant failed to show that it was reasonably probable that he would not have been convicted if the DNA test results had been available at his trial.
We review the trial court’s decision under a bifurcated standard, providing almost total deference to the court’s determination of historical fact, and application-of-law-to-fact issues that turn on credibility or demeanor, but reviewing de novo other issues involving the application of law to facts. Johnson v. State, 183 S.W.3d 515, 519-520 (Tex. App.—Houston [14th Dist.] 2006, pet. dism’d). The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. Id. at 520.
In order to demonstrate a “reasonable probability” that he would not have been convicted, as required under article 64.04, appellant must show a reasonable probability that exculpatory DNA tests would prove his innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). A reasonable probability of innocence exists when there is a probability sufficient to undermine confidence in the outcome. Id.; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A trial court does not err in finding DNA test results “not favorable” if the post-conviction results fail to demonstrate a reasonable probability of innocence in the face of other evidence that is sufficient to establish guilt. Johnson, 183 S.W.3d at 520.
At appellant’s 1998 trial, the complainant, M.B., testified that she had met appellant several years before the sexual assault occurred. They dated for a short time but had stopped dating about three months before the offense. M.B. further stated that on May 10, 1997, she was staying at her friend Juan Pena’s apartment when appellant jumped through a window and landed on her. Appellant said, “Bitch, get up and get your clothes on.” While M.B. dressed, appellant hit Pena in the face. M.B. stated that appellant dragged her out of the apartment and down the street until they arrived at a “whole bunch of bushes.” Appellant threw her down, removed her clothes, threatened to kill her, and hit and kicked her, saying, “this is for fucking that man.” Appellant bloodied M.B.’s nose and mouth. According to M.B.’s testimony, once appellant removed her shorts, he inserted a stick inside of her and then placed his penis inside her vagina but ultimately ejaculated “all over the outside” of her vagina. Afterward, M.B. put her shorts back on. Appellant forced her to stay with him the remainder of the night.
M.B. further testified that on the next day, appellant forced her to accompany him to various places by threatening to kill her. When appellant again threatened to kill her, M.B. ran away and managed to escape. She eventually made her way to Ben Taub Hospital, where she underwent an examination in which vaginal swabs were taken. In her testimony, M.B. acknowledged that she at times either lived with friends or on the street and had been convicted for prostitution four times.
Juan Pena testified that appellant was the person who took M.B. from Pena’s apartment before the assault. Maria Gonzalez, a registered nurse at Ben Taub testified that she performed a rape kit examination of M.B. on May 12, 1997. She observed bruises on M.B.’s face, body, and vagina and described complainant’s vaginal injuries as inconsistent with consensual sex.
James Bolding, a DNA analyst from the Houston Police Department Crime Laboratory, testified at the 1998 trial that he examined evidence taken as part of M.B.’s rape kit. He analyzed the vaginal swabs and smears and found no evidence of male secretions on these items. He also found no semen on M.B.’s jean shorts and black t-shirt but did find blood on the shorts. No DNA evidence was introduced during the trial.
Appellant contends the post-conviction DNA test results establish a reasonable probability that he would not have been convicted if such results had been available at his trial because the test results revealed: (1) there was no semen on M.B.’s shorts, which contradicts M.B.’s testimony that she “pulled on her shorts immediately after the appellant ejaculated onto her vaginal area,” and (2) appellant’s DNA was not found in the blood stains on the shorts while the DNA of a man identified as Jimmy Luna was contained in the blood stains.
Regarding appellant’s first assertion, evidence of the absence of semen on M.B.’s shorts does not create a reasonable probability that he would not have been convicted because similar evidence was presented at his trial in 1998. Bolding testified that there was no semen on the vaginal swabs and smears that were collected from M.B. at the hospital. He also found no semen on M.B.’s jean shorts and black t-shirt. See Cate v. State, 326 S.W.3d 388 (Tex. App.—Amarillo 2010, pet. ref’d) (finding that defendant failed to satisfy his article 64.04 burden when his theory to attack his conviction, predicated on the post-conviction DNA test results, was the same theory of attack proffered to his convicting jury); Frank v. State, 190 S.W.3d 136 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (finding defendant failed to prove that he would not have been convicted had the post-conviction test results been available during his trial because the post-conviction DNA test results were identical to the DNA results before trial).
Appellant’s second assertion is that the absence of his DNA and the presence of another man’s DNA in the blood stain on M.B.’s shorts establish a reasonable probability that appellant would not have been convicted if this evidence was presented at his trial. Although this evidence is to some degree potentially exculpatory in nature, we cannot consider it in a vacuum; instead, we must evaluate it in the context of the other relevant evidence. See Johnson, 183 S.W.3d at 520.
Although there was evidence at the 1998 trial that M.B. bled on her shorts after appellant beat her, there was no evidence suggesting that the person who sexually assaulted her bled during the commission of the offense. Indeed, there was no evidence indicating that the additional source of the blood stain was connected to the sexual assault in any way.
Furthermore, there was no evidence indicating when Luna’s blood may have been placed on M.B.’s shorts. M.B. was sometimes homeless and frequently worked as a prostitute, so the blood on her shorts could have been deposited on them at a different time than during the sexual assault. Cf. id. (finding fact that DNA test results showing DNA in semen stain on rape victim’s underwear did not match defendant’s DNA did not favor defendant since the victim was sexually active during the period of time the sexual assault occurred).
The trial court’s conclusion is further supported by the evidence at trial of appellant’s guilt. See id. M.B. identified appellant as her attacker, and her testimony was corroborated by a witness who saw appellant with M.B. immediately before the assault. See id. at 521. M.B. testified that at the time of the sexual assault, she had known appellant for several years and had dated him for several months. Given her familiarity with appellant, there was less likelihood of a misidentification of her attacker. See Cate, 326 S.W.3d at 390 (finding evidence in the form of rape victim’s quite certain identification of appellant as her attacker was sufficient, independent of the DNA evidence, to support that a reasonable probability of innocence did not exist). Furthermore, M.B.’s testimony was corroborated by Juan Pena, who identified appellant, a person he reportedly saw on a daily basis, as the person who took M.B. from Pena’s apartment right before the sexual assault occurred. Finally, M.B.’s testimony about the manner of the sexual assault was corroborated by the hospital nurse who observed bruises on M.B.’s face, body, and vagina, and who described M.B.’s vaginal injuries as inconsistent with consensual sex.
The evidence therefore supports the trial court’s conclusion that there was not a reasonable probability that appellant would not have been convicted if the post-conviction DNA results had been available at his trial. Consequently, the trial court did not err in finding that the results were not favorable to appellant. We overrule appellant’s sole issue.
We affirm the trial court’s order.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Frost, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).