AFFIRM; and Opinion Filed August 8, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01147-CR
VAN LEE BREWER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F89-97479-U
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Brown
Van Lee Brewer appeals from the trial court’s determination that the results of post-
conviction DNA testing ordered pursuant to Chapter 64 of the Texas Code of Criminal Procedure
were not favorable. In two issues, appellant contends: (1) the results of the testing showed the
State relied on false evidence to convict him at his trial; and (2) the results were based on a
flawed methodology. For the following reasons, we affirm.
In September 1989, appellant was convicted of sexual assault. At his trial, the victim
identified appellant as her attacker. She also testified that, after appellant sexually assaulted her,
he ejaculated on her thigh. The Southwest Institute of Forensic Sciences (“SWIFS”) conducted
testing on the skirt the victim was wearing at the time of the offense. SWIFS detected the
presence of spermatozoa on the skirt. A report reflecting these findings was admitted into
evidence at appellant’s trial. The report identified the name of the victim, but it was spelled
incorrectly.
In 2001, the trial court granted appellant’s request for post-conviction DNA testing and
ordered the Texas Department of Public Safety (“DPS”) to conduct the testing. SWIFS
subsequently submitted stains it had retained from the victim’s skirt to DPS. DPS recovered a
DNA profile from sperm cells on the stains and compared it to appellant’s DNA. DPS
determined appellant could not be excluded as a contributor to the DNA recovered from the stain
and that the probability of selecting a person at random who could be a contributor was
approximately one in 152.5 trillion for Caucasians, one in 1.133 trillion for Blacks, and 1 in
46.23 trillion for Hispanics.
DPS filed a report containing the results of its testing with the trial court. DPS’s report
contained the same misspelling of the victim’s name as the 1989 SWIFS report had. Following
a hearing, the trial court determined there was no reasonable probability appellant would not
have been convicted had the results of the DNA testing been available during his trial.
Appellant appealed to this Court and we affirmed. See Brewer v. State, 05-02-00136-CR, 2002
WL 31445286, at *1 (Tex. App.—Dallas Nov. 4, 2002, no pet.).
In 2015, after appellant requested additional DNA testing, the State agreed to Y-STR
DNA testing on the DNA that had previously been extracted from the victim’s skirt. 1 The trial
court ordered DPS to conduct that testing. DPS filed a report containing the results of the Y-
STR DNA testing. They showed that the Y-STR profile from the sperm cell fraction extracted
from the victim’s skirt was consistent with the Y-STR profile of appellant and that the selected
1
Y-STR testing can provide more accurate results when analyzing DNA samples containing mixed male DNA. See Wynne v. State, 06-10-
00226-CR, 2011 WL 5865710, at *4 (Tex. App.—Texarkana Nov. 23, 2011, pet. ref'd)(explaining Y-STR testing).
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profile is found in 0 of 25,643 total individuals within the database. In addition, appellant’s
male relatives could not be excluded as being a contributor to the male DNA profile.
Again, DPS misspelled the victim’s name on its report. Following a hearing, the trial
court determined there was no reasonable probability that appellant would not have been
convicted had the DNA results been available during his trial. Appellant brings this appeal.
In his first issue, appellant argues DPS’s report contained exculpatory information
because it showed biological evidence that was used against him at his trial came from the skirt
of another victim. The sole basis for appellant’s argument is that the victim’s name was
misspelled on the DNA reports.
Under Article 64.04, after post-conviction DNA results are filed with the trial court, the
trial court must examine those results and then conduct a hearing and make a finding as to
whether, had the results been available during trial, it is reasonably probable the person would
not have been convicted. TEX. CODE CRIM. PRO. ANN. 64.04 (West. Supp. 2016). A convicted
person is entitled to appeal the trial court’s determination. See Whitfield v. State, 430 S.W.3d
405, 406-07 (Tex. Crim. App. 2014); Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App.
2008).
Here, appellant does not dispute the results of the DNA testing were not favorable. In
fact, at the article 64.04 hearing, appellant acknowledged, “the DNA testing is saying its me.”
Instead, according to appellant, regardless of what the actual DNA results were, the report that
communicated those results to the trial court showed the biological matter came from the skirt of
a different victim. He argues because the State presented evidence at his trial that the same
biological matter contained spermatozoa, the State used false evidence to convict him. Thus, he
concludes, the results cast doubt on his guilt. Appellant’s issue is without merit for several
reasons.
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First, the difference between the spelling of the victim’s name in the lab report and the
actual spelling of the victim’s name does not show the lab report was referring to a different
victim. Cf. Byrd v. State, 336 S.W.3d 242, 249 (Tex. Crim. App. 2011) (variance between
victim’s name alleged in indictment and proven at trial not fatal to conviction). Further, the
name of the victim in the report was not part of the results of DPS’s scientific DNA testing.
Finally, and not least significantly, the record shows that the victim’s name was also misspelled
on the 1989 SWIFS lab report. Thus, the very evidence that appellant claims casts doubt on the
validity of his conviction was available to him during his trial. In any event, we conclude
appellant failed to show that, had the results of the DNA testing been available at the time of his
trial, it is reasonably probable that he would not have been convicted. See Pruett v. State, AP-
77,037, 2014 WL 5422573, at *2 (Tex. Crim. App. Oct. 22, 2014) (no reasonable probability
shown when DNA results did not exclude appellant as possible contributor to DNA evidence).
We resolve the first issue against appellant.
In his second issue, appellant asserts the methodology used to extract the DNA profile
from the semen on the victim’s skirt was flawed and, therefore, the results of the DNA testing
are invalid. Appellant did not object to admission of the results at the hearing. To the contrary,
appellant himself offered the results into evidence. To preserve a complaint for appellate review,
an appellant must make a timely specific objection and obtain a ruling on that objection. See
TEX. R. APP. P. 33.1(a). We conclude appellant waived this complaint. See id; Hill v. State, 05-
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09-01398-CR, 2011 WL 635230, at *1 (Tex. App.—Dallas Feb. 23, 2011, no pet.). We resolve
this issue against appellant and affirm the trial court’s article 64.04 determination.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
161147F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VAN LEE BREWER, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-16-01147-CR V. Trial Court Cause No. F-89-97479-U.
Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee Francis and Schenck participating.
Based on the Court’s opinion of this date, the trial court’s determination is AFFIRMED.
Judgment entered this 8th day of August, 2017.
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