Opinion
NO. 03-19-00046-CR
08-12-2020
In re Samuel Adkins
FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-13-904105 , THE HONORABLE TAMARA NEEDLES, JUDGE PRESIDING CONCURRING OPINION
While I agree with the Court's holding affirming the trial court's order, I respectfully disagree with the Court's analysis in part and, therefore, concur in the Court's judgment only.
As the Court points out in its opinion, article 64.03 of the Code of Criminal Procedure outlines the requirements for DNA testing to be ordered. Tex. Code Crim. Proc. art. 64.03. Among those requirements, the court must find that "identity was or is an issue in the case." See id. art. 64.03(a)(1). "The identity requirement in Chapter 64 relates to the issue of identity as it pertains to the DNA evidence." Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). Accordingly, an incarcerated person "can make identity an issue by showing DNA tests would prove his innocence" regardless of "the strength of identification evidence at trial." Cloud v. State, Nos. 05-13-01235-CR, -01237-CR, 2014 WL 1413818, at *2 (Tex. App.—Dallas Mar. 26, 2014, pet. ref'd) (mem. op., not designated for publication). "However, if DNA testing would not determine the identity of the person who committed the offense or would not exculpate the person convicted, then the requirements for DNA testing under Chapter 64 are not met." Sims v. State, No. 03-14-00201-CR, 2014 WL 7475235, at *3 (Tex. App.—Austin Dec. 17, 2014, no pet.) (mem. op., not designated for publication).
In addition, the "convicted person" must establish "by a preponderance of the evidence that" he "would not have been convicted if exculpatory results had been obtained through DNA testing." Tex. Code Crim. Proc. art. 64.03(a)(2); see also Dinkins v. State, 84 S.W.3d 639, 643 (Tex. Crim. App. 2002) (explaining that "[a] trial court is never required to grant a convicted person's request for testing absent" showing that "there is a reasonable probability that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing"). In other words, the convicted person must show "that there is 'greater than a 50% chance that he would not have been convicted if DNA testing provided exculpatory results.'" Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (quoting Prible, 245 S.W.3d at 467-68); see also Reed v. State, 541 S.W.3d 759, 774 (Tex. Crim. App. 2017) (explaining that "'[e]xculpatory results' means only results excluding the convicted person as the donor of this material"). "Texas courts have consistently held that a movant does not satisfy his burden under Article 64.03 if the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing." Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim. App. 2010).
How the identity element is established in cases involving allegations like those here is not entirely clear. For sexual-assault cases in which the assailant is alleged to have deposited semen or another biological material during the assault, the Court of Criminal Appeals has explained that an individual can make "identity an issue by showing that exculpatory DNA tests would prove his innocence" and that testimony from a victim identifying the defendant as the attacker and explaining that she knew the attacker beforehand is "irrelevant to whether appellant's motion for DNA testing makes his identity an issue." Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007); see also Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim. App. 2009) (noting that defendant, who conceded that he killed victim but denied sexually assaulting her before she died, asserted that DNA testing would exonerate him and concluding that "the identity of the perpetrator of the predicate aggravating factors of the alleged capital murder is at issue"); Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (explaining that overwhelming eyewitness identification and strong circumstantial evidence supporting guilt is "inconsequential" when assessing whether convicted person has sufficiently alleged that DNA evidence would prove his innocence); Smith v. State, 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2005) (noting that evidence at trial showed that attacker left seminal fluid at time of attack and that victim did not have intercourse "with anyone other than her attacker within 24 hours of rape exam" and concluding that results indicating that Smith's DNA did not match seminal fluid "would be exculpatory"). Consistent with case law indicating that the identity of an assailant may be an issue regardless of the strength of the evidence presented at trial, the legislature also included a provision in chapter 64 specifying that an individual "who pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case may submit a motion" for DNA testing "under this chapter." Tex. Code Crim. Proc. art. 64.03(b); see also Blacklock, 235 S.W.3d at 233 (noting that DNA can be authorized even in circumstances where defendant pleaded guilty and conceded "the issue of identity at trial"). Accordingly, had this case involved allegations that a lone assailant deposited semen during the assault, Adkins's motion for DNA testing could have made identity an issue regardless of the testimony at trial.
Given the reduced likelihood that DNA will be transferred in an appreciable and measurable way through limited touching and given the reduced probative value of testing involving touch DNA evidence, see Dunning v. State, 572 S.W.3d 685, 693 (Tex. Crim. App. 2019); In re Fletcher, No. 03-19-00044-CR, 2020 WL 742383, at *4 (Tex. App.—Austin Feb. 14, 2020, no pet.) (mem. op., not designated for publication), it may well be that DNA testing excluding Adkins as a DNA contributor would not establish that identity is an issue as it pertains to the offense of aggravated sexual assault, see Aekins v. State, No. 03-16-00598-CR, 2017 WL 2333213, at *6 (Tex. App.—Austin May 25, 2017, pet. ref'd) (mem. op., not designated for publication) (noting analysis from Blacklock explaining that victim's testimony was irrelevant to whether DNA testing would establish that identity was issue but explaining "that it is not entirely clear that the analysis from Blacklock would apply to the circumstances in this case" because, unlike in Blacklock, "there was no allegation that Aekins ejaculated during the assault, and no semen was found on any of the samples collected").
However, given the additional prong requiring a convicted person to establish that there is a greater than 50% chance that he "would not have been convicted if exculpatory results had been obtained through DNA testing," see Tex. Code Crim. Proc. art. 64.03(a)(2), I believe the considerations of reduced probative value and strength of the evidence presented at trial are more fairly addressed under that prong given the circumstances present here. This approach is consistent with how other cases involving allegations of digital penetration alone in sexual assault cases have resolved chapter 64 issues, see Aekins v. State, 2017 WL 2333213, at *7-9; Simpson v. State, No. 04-12-00114-CR, 2013 WL 351666, at *2 (Tex. App.—San Antonio Jan. 30, 2013, pet. ref'd) (mem. op., not designated for publication).
Given the likely minimal probative value of the testing Adkins requested and the evidence of Adkins's guilt set out in the Court's opinion, I would conclude that Adkins has not shown "by a preponderance of the evidence" that he would not have been convicted if exculpatory results had been obtained through DNA testing and, therefore, that the trial court did not err by denying his request for DNA testing. See Tex. Code Crim. Proc. art. 64.03(a)(2); In re Fletcher, 2020 WL 742383, at *5; see also Swearingen, 303 S.W.3d at 738 (overruling issue alleging that trial court erred by denying motion for DNA testing, in part, "[b]ecause of the overwhelming evidence of guilt independent of any potentially exculpatory DNA testing"). Having found that this is not "the type of case in which exculpatory DNA results would make a difference," I would further conclude that the trial court did not err by finding that reasonable grounds were not present and, therefore, denying Adkins request for the appointment of counsel. See Ex parte Gutierrez, 337 S.W.3d at 891.
For these reasons, I concur in the Court's judgment.
/s/_________
Thomas J. Baker, Justice Before Justices Goodwin, Baker, and Kelly Filed: August 12, 2020 Do Not Publish