Opinion issued October 19, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00175-CR
———————————
EARNEST JAMES DUDLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 917568
MEMORANDUM OPINION
This is an appeal of the trial court’s finding that the results of post-conviction
DNA testing were unfavorable to appellant, Earnest James Dudley. See TEX. CODE.
CRIM. PROC. art. 64.05. In his sole issue on appeal, appellant contends that the trial
court erred in finding that the DNA results were unfavorable because he established
that, had the results been available at trial, there was a reasonable probability that he
would not have been convicted. We affirm.
BACKGROUND
In 2003, a jury found appellant guilty of aggravated sexual assault and
assessed his punishment at confinement for life. See Dudley v. State, 01-03-00528-
CR, 2004 WL 584919 (Tex. App.—Houston [1st Dist.] Mar. 25, 2004, pet. ref’d)
(mem op., not designated for publication). This Court affirmed appellant’s
conviction, and the Texas Court of Criminal Appeals denied appellant’s petition for
discretionary review. Id.
Evidence in the 2003 Conviction
The facts of the underlying case, as set forth in this Court’s 2004 opinion are
as follows:
The complainant, who was 17 years-old at the time of the offense,
testified that, at approximately 10:00 p.m. on July 11, 2002, she rode a
Metro bus from her boyfriend’s house to her home in Houston. She
explained that she had missed a bus that would have taken her near her
home and had to take a bus that dropped her off approximately one and
one-half miles from her home. As the complainant began walking
home, appellant drove his car up to the bus stop, honked his car horn
three times, and offered to give her a ride home. She accepted
appellant’s offer and got into his car.
The complainant gave appellant directions to her home, and he
followed them. However, when they were within sight of her home,
appellant turned left at the intersection before her home and stated that
“he had to pick up some weed from a friend.” Appellant then drove a
few blocks to another intersection and parked his car. When the
complainant attempted to get out of the car, appellant locked the doors.
2
Appellant then pulled out a pocketknife, placed it against the
complainant’s neck, and told her that if she did not perform oral sex on
him “he was going to stab the shit out of her.” Appellant then pulled his
pants down, pushed the complainant’s head between his legs, and
forced her to perform oral sex.
After a short time, appellant “let [the complainant] up” and then told
her that he was going to have intercourse with her. However, at this
point, a police officer, in a patrol car, drove up to the intersection, and
appellant began to “panic.” He told the complainant to tell the officer
that he was her cousin and that he was giving her a ride home. Appellant
then started his car and attempted to drive away. However, the officer
pulled his patrol car in behind appellant’s car and initiated a traffic stop.
When the police officer walked up to appellant’s car, he asked the
complainant if “everything [was] okay.” The complainant replied
“yes,” but shook her head to indicate “no.” The officer then asked the
complainant to get out of appellant's car, and, after she got out, the
complainant told the officer that appellant had sexually assaulted her.
Appellant stated, “she's lying, she’s lying . . . I can’t go back to jail this
time.”
Houston Police Officer E. Speckman testified that, after he initiated the
traffic stop of appellant’s car, the complainant told him that appellant
had a knife and he had tried to sexually assault her. Appellant told
Speckman that the complainant was a prostitute and that he had agreed
to pay her $20 to perform oral sex on him. When Speckman asked
appellant where the $20 was located, appellant stated that he did not
have any money and he was planning on “ripping off” the complainant.
Speckman then asked appellant if he had a knife either on him or in his
car, but appellant denied having a knife. However, when Speckman
shone his flashlight inside appellant’s car, he saw an open pocketknife
on the floorboard near the console. Thereafter, Speckman contacted a
female officer, Houston Police Officer H. Holt, and asked her to come
to the scene to speak with the complainant.
Officer Holt testified that, when she arrived at the scene, she saw that
the complainant was very emotional and was “visibly shaken.” The
complainant told Holt that appellant had offered to give her a ride home,
but had refused to take her straight home. Instead, appellant drove to
3
the intersection, threatened the complainant with a pocketknife, and
forced her to perform oral sex on him.
Roshonda Baker, appellant’s girlfriend, testified that, at some point
after his arrest, she retrieved appellant’s car from storage and found $20
in the car’s ashtray.
Dudley, 2004 WL 584919, at *1–2.
Chapter 64 Proceedings
In 2014, appellant requested, and the trial court appointed, counsel to
represent him for the purpose of post-conviction DNA testing. See TEX. CODE CRIM.
PROC. art. 64.01(c). In 2017, the case was transferred to the 208th District Court
because the judge of the trial court to which the case was previously assigned had
been the trial prosecutor in appellant’s case. On March 2, 2017, the judge of the
208th District Court signed an Agreed Order for DNA testing, pursuant to article
64.03 of the Texas Code of Criminal Procedure. The Agreed Order required the
Department of Public Safety (“DPS”) Crime Lab to conduct forensic testing of the
following items: (1) a SX 10—one Prima knife with brown handle, (2) the
complainant’s sexual assault kit, and (3) several clothing items.
The DPS Crime Lab results relevant to this appeal were as follows: (1)
insufficient male DNA from the complainant’s oral swab, (2) no DNA on the knife,
(3) DNA on the complainant’s vaginal swabs that matched her boyfriend, but not
appellant, (4) no sperm on the complainant’s underwear, (5) male DNA on the
complainant’s underwear that excluded appellant.
4
Based on these results, the trial court entered the following findings:
The Court finds that the defendant has failed to establish a reasonable
probability that, had the results of this forensic DNA testing been
available before or during the trial of the instant offense, the defendant
would not have been prosecuted or convicted
The Court finds that, when weighed against the evidence, the results of
the forensic DNA testing conducted pursuant to its order are not
favorable to the defendant.
Appellant appeals these negative findings. See id. art. 64.05.
PROPRIETY OF POST-CONVICTION-TESTING FINDINGS
In his sole issue, appellant contends that “the trial court committed reversible
error in denying appellant relief, where the evidence shows that had the results of
the forensic testing of DNA biological materials been available during appellant’s
criminal prosecution, it is reasonably probable appellant would not have been
convicted.”
Applicable Law
The purpose of postconviction 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 postconviction DNA testing. TEX. CODE CRIM. PROC. art. 64.01; Ex
parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011). If such DNA testing
5
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.
64.04; 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); Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d). The defendant may appeal that finding. See TEX. CODE CRIM.
PROC. art. 64.05; Whitfield v. State, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).
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
convicted.” Glover, 445 S.W.3d at 861; 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.
Standard of Review
We review the trial court’s decision regarding DNA testing using a bifurcated
standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We
afford almost total deference to the trial court’s determination of historical fact and
6
application-of-law-to-fact issues that turn on credibility and demeanor, while we
review de novo other application-of-law-to-fact issues. Id.
We review the entire record, that is, all the evidence that was available to, and
considered by, the trial court in making its ruling, including testimony from the
original trial. Asberry v. State, 507 S.W.3d 227, 228-29 (Tex. Crim. App. 2016). The
ultimate question of whether a reasonable probability exists that exculpatory DNA
tests would have caused the defendant 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.
Analysis
Appellant argues that the trial court’s findings are erroneous because
“[a]ppellant’s DNA was not found on materials where, under the State’s theory of
the case, it should have been present” and “[m]ale DNA not belonging to appellant
was found on evidence where, under the State’s theory of the case it should have
been present.” Specifically, appellant points out that his DNA was not present on
the knife1 or the complainant’s oral swab, and that another person’s DNA was
present on the complainant’s vaginal swab and underwear, but his DNA was not.
Regarding the absence of appellant’s DNA on the knife and the insufficient
male DNA on the complainant’s oral swab, we note that neither DNA evidence nor
1
In fact, no DNA at all was found on the knife.
7
physical evidence is required to support a sexual-assault conviction. See Pena v.
State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
(“The absence of DNA or fingerprint evidence at trial does not render the other
evidence insufficient to support the conviction.”); Bargas v. State, 252 S.W.3d 876,
888 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also TEX. CODE CRIM.
PROC. art. 38.07 (providing that complainant’s testimony sufficient to support
conviction).
In this case, there was sufficient evidence tying appellant to the sexual assault
without any DNA evidence. The complainant positively identified appellant as her
assailant, testified that he compelled her to perform oral sex at knife point, and an
open knife was recovered from the floorboard of appellant’s car immediately after
he denied possessing a knife.
And, the absence of appellant’s DNA on the knife and the complainant’s oral
swab does not establish a reasonably probability of non-conviction. See Flores v.
State, 491 S.W.3d 6, 10 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“Even
if we were to infer from the results that another person was present at the time of the
shooting, this inference alone ‘would not factually exclude the appell[ant] from
having killed [the complainant]’ and would not demonstrate a reasonable probability
of acquittal.”); see also Jones v. State, 01-03-00325-CR, 2004 WL 440430, at *2
(Tex. App.—Houston [1st Dist.] Mar. 11, 2004, pet. ref’d) (mem. op., not designated
8
for publication) (“Thus, even if appellant’s DNA were not found on the package of
cigarettes or the cigarette lighter, or if someone else’s DNA were found on either
item, the DNA evidence would not provide a reasonable probability that appellant
did not commit the robberies. The DNA evidence would ‘merely muddy the
waters.’”) (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002));
see also Rivera, 89 S.W.3d at 60 (holding that “[w]hile the presence of the child’s
DNA under appellant’s fingernails could indicate guilt, the absence of such DNA
would not indicate innocence”). The lack of DNA on the knife or the complainant’s
oral swab does not demonstrate a reasonable probability that appellant would not
have been convicted had such evidence been available at the time of his
trial. See Flores, 491 S.W.3d at 10; see also Dunning v. State, 572 S.W.3d 685, 693
(Tex. Crim. App. 2019) (“While Appellant is excluded as a major contributor to the
tested items, that in and of itself, is insufficient to meet his burden under Article
64.04”).
Similarly, the presence of someone else’s DNA on the complainant’s
underwear and vaginal swabs does not establish a reasonably probability of non-
conviction. The complaint testified that her boyfriend was named “Terry” and that
she was on her way home from his apartment when she was sexually assaulted by
appellant. The DNA profile from the complainant’s vaginal swab matched one Terry
Lee Davis. However, appellant was charged with and convicted of an aggravated
9
sexual assault alleging that “appellant, while using or exhibiting a deadly weapon,
intentionally or knowingly caused his penis to penetrate the complainant’s mouth,
without her consent.” See Dudley, 2004 WL 584919, at *3. That Terry Davis’s
DNA was present on the complainant’s vaginal swab and underwear and that
appellant’s DNA was not present are irrelevant to whether appellant forced the
complainant to perform oral sex for which he was charged and convicted. At best,
such evidence at trial would have merely “muddied the waters,” and appellant has
not shown that, had the results been available during the trial of the offense, it is
reasonably probable that he would not have been convicted.
We overrule appellant’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s order finding that the results of appellant’s post-
conviction were unfavorable.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
10