Raymond Lang v. The State of Texas--Appeal from 194th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAYMOND LANG, )

) No. 08-02-00292-CR

Appellant, )

) Appeal from the

v. )

) 194th District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-8894072-RM)

)

O P I N I O N

Raymond Lang appeals the trial court=s order denying his motion for post-conviction forensic DNA testing. In his sole issue for review, Appellant contends the trial court erred in denying his Chapter 64 DNA motion because a reasonable probability exists that DNA tests would prove his innocence. We affirm.

In 1988, a jury convicted Appellant of aggravated sexual assault and sentenced him to 50 years= imprisonment. In 1989, the Dallas Court of Appeals affirmed Appellant=s conviction. See Lang v. State, No. 05-88-00749-CR (Tex.App.--Dallas June 20, 1989, pet. ref=d)(not designated for publication).

On August 6, 2001, Appellant filed a motion for post-conviction forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. In his motion, Appellant does not specify what items of physical evidence he wished to have DNA testing performed. After a hearing on Appellant=s motion on May 31, 2002, the trial court denied the testing by a written order which also contained its findings and conclusions. The trial court found that the Southern Institute for Forensic Science (SWIFS) records reflect that SWIFS is currently in possession of the vaginal swab and vaginal smear, the pubic combings, and a portion of the skirt worn by M.R. on the night of the assault. SWIFS records further reflect that it is no longer in possession of the oral swab, oral smear, and blood sample. The court found that of the above mentioned items of physical evidence, the vaginal swab and vaginal smear were found to contain sufficient seminal fluid to support further testing for genetic markers. The skirt was found to contain insufficient amounts of seminal fluid to support further testing. The oral swab and smear tested negative for the presence of seminal fluid. The pubic hairs were found to match M.R.=s. Further testing of the vaginal swab and vaginal smear for genetic markers proved inconclusive. Appellant was neither included nor excluded as a possible contributor of the seminal fluid found on the vaginal smear and vaginal swab. The trial court concluded that Appellant failed to meet his burden under the statute to show by a preponderance of the evidence that an exculpatory result obtained from DNA testing would have resulted in him not being prosecuted or convicted. It also concluded that the evidence at trial, both direct and circumstantial, strongly supported the jury=s finding of guilt beyond a reasonable doubt. Appellant timely filed a notice of appeal.

Standard of Review and Applicable Law

We review a trial court=s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). That is, we afford almost total deference to a trial court=s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor while we review de novo other application-of-law-to-fact issues. Rivera, 89 S.W.3d at 59. The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact issue which does not turn on credibility and demeanor and is therefore reviewed de novo. Id.

A convicted person may submit a motion for post-conviction DNA testing of evidence containing biological material to the trial court in which he was convicted. Tex.Code Crim.Proc.Ann. art. 64.01(a)(Vernon Supp. 2004). The motion must be accompanied by an affidavit, sworn to by the convicted person, and containing statements of fact in support of the motion. Tex.Code Crim.Proc.Ann. art. 64.01(a). Although anyone may request DNA testing, the court must order testing only if the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002).

Article 64.03 of the Code of Criminal Procedure provides, in pertinent part:

(a) A convicting court may order forensic DNA testing under this chapter only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; and

(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence that:

(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

Tex.Code Crim.Proc.Ann. art. 64.03(a).

Therefore, in order to obtain DNA testing, an applicant must establish by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Tex.Code Crim.Proc.Ann. art. 64.03(a)(2)(A). The Court of Criminal Appeals has interpreted this to mean that an applicant must show Aa reasonable probability exists that exculpatory DNA tests will prove [his] innocence.@ Kutzner v. State, 75 S.W.3d 427, 438 (Tex.Crim.App. 2002). The showing has not been made if exculpatory test results would Amerely muddy the waters.@ Rivera, 89 S.W.3d at 59. If the Appellant makes the required showing, the court may order DNA testing only if it finds that identity was or is an issue in the case, the evidence still exists and is in a testable condition, and the chain of custody of the evidence is sufficient to establish the evidence has not been tampered with, replaced, or altered in any material respect. Tex.Code Crim.Proc.Ann. art. 64.03(a).

In this case, the complainant, M.R., testified at trial that on or about January 31, 1988, at around 9:30 p.m. she was walking past a gas station when codefendant, Rickey Thompson and one of his friends asked her if she wanted to go Ariding around@ with them. M.R. did not know any of these men. However, she accepted and got into Thompson=s car while Appellant and some of his friends followed behind in another car. They drove to South Dallas where Thompson and Appellant were presumed to have gotten some drugs. Afterwards, Appellant got in the car with Thompson and M.R. while the rest of their friends got into the second car and drove off. M.R. told both men that she wanted to go home. They ignored her and drove off to several other places.

Eventually, at around 1 a.m., they decided to go to Mountain Creek Lake. Shortly after arriving, Appellant got out of the car and held the door shut to keep M.R. from escaping while Thompson raped her. When Thompson was finished, Appellant pulled M.R. out of the car and asked Thompson if he could Acut her up,@ but he did not let him. Instead, Thompson put her back into the car and attempted to anally rape her. Appellant then got in the car and raped her while Thompson forced her to perform oral sex.

After being repeatedly raped, M.R. told Thompson and Appellant that she had to use the bathroom. Thompson took her outside and forced her to perform oral sex while she was urinating. By forcing herself to have a bowel movement, M.R. convinced Thompson to briefly let go of her. M.R. then started to run towards a nearby toll bridge but was caught by Thompson who proceeded to punch her and choke her. M.R. was able to escape again when Thompson hesitated for a while when he was chocking her. M.R. then ran to a nearby road where a motorist took her to the toll bridge and the attendant called the police.

M.R. described the incident to the police and took them to the location where the sexual assaults had taken place. When they arrived, Appellant and Thompson were still at the scene because their car was stuck in a ditch. M.R. identified Appellant and Thompson as the men that had raped her; and the police proceeded to arrest them. The police searched the area and found M.R.=s underwear, keys, cigarettes, and shoes in the area where she had lost them some time during the struggle.

Caroline Van Winkle, a forensic serologist at the Institute of Forensic Sciences in Dallas, testified she received a rape kit including a vaginal swab, a vaginal smear, an oral swab, oral smear, blood sample, and pubic hair samples from the complainant in this case. At a later date, Van Winkle received clothing including a skirt. With the swabs and clothing, Van Winkle performed a test for acid phosphatase that would indicate the presence of seminal fluid. The analysis of the evidence revealed the presence of spermatozoa on the vaginal swab, the vaginal smear, and the skirt. The oral swab and oral smear tested negative for the presence of seminal fluid. The pubic hairs were analyzed and found to match M.R.=s. The vaginal swab and vaginal smear were subjected to further DNA testing to determine the presence of genetic markers. However, the skirt was determined to contain insufficient seminal fluid to support further testing. Testing of the spermatozoa from the vaginal swab and vaginal smear was inconclusive because it indicated that the donor was from a Ablood group O, from a O secretor.@ M.R.=s blood is of the same type; therefore, the identity of the donor could not be determined from the sample.

Appellant argues that he established that a reasonable probability exists that exculpatory results through DNA tests would prove his innocence. Specifically, he argues that the record of his trial conclusively establishes that the only controverted issue was the element of identity and that the conviction was obtained through the testimony of the complaining witness who testified that Appellant and codefendant, Ricky Thompson, took turns in raping her. He asserts that M.R.=s testimony can be discredited through the DNA testing that could show a set of circumstances which would eliminate his guilt. He argues that the test could show that the seminal fluid found in M.R.=s rape exam is codefendant Thompson=s, and not Appellant=s or that it is from neither of them.

Even assuming that DNA test results might create an exculpatory inference, such an inference does not necessarily conclusively outweigh other evidence establishing Appellant=s guilt. See Rivera, 89 S.W.3d at 60. In some cases, exculpatory post-conviction DNA test results would Amerely muddy the waters.@ See Kutzner, 75 S.W.3d at 439 (no reasonable probability of innocence where test results would Amerely muddy the waters@). Here, there is overwhelming direct and circumstantial evidence that establishes Appellant=s guilt; therefore, any exculpatory inference that might be revealed by the DNA testing sought in this case would not outweigh the evidence of Appellant=s guilt. See Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.--Houston [1st Dist.] 2002, pet. ref=d)(no reasonable probability of innocence where weapon failed to contain complainant=s blood because such evidence could be outweighed by other competent evidence). M.R. provided unequivocal eyewitness testimony in which she identified Appellant as one of the men who sexually assaulted her. Dallas Police Officer Kenneth Weaver testified that he found Appellant and his accomplice at the location where M.R. said the assault occurred. Dallas Police Detective Fred Milligan testified that several items belonging to M.R. were found in the area immediately surrounding where Appellant and Thompson were found. The testimony of Dr. Victor Robert Klein, the doctor who performed the rape examination on the night of the assaults, established that M.R. had suffered injuries to her head and neck. Therefore, it can be concluded that Appellant=s identity was not at issue. See Tex.Code Crim.Proc.Ann. art. 64.03(a)(1)(B).

In addition, evidence at trial established that there were two assailants. Appellant was not the only potential contributor of the seminal fluid found on the vaginal swab and smear. Therefore, assuming that further DNA testing could show that the seminal fluid was deposited by Thompson and not Appellant, this still does not prove that Appellant is innocent. See e.g. Kutzner, 75 S.W.3d at 439; Rivera, 89 S.W.3d at 56 (no reasonable probability of innocence where there is absence of DNA under an Appellant=s fingernails and a negative result from a victim=s rape kit). While the presence of Appellant=s seminal fluid on the vaginal swab, vaginal smear, and skirt could indicate guilt, the absence of such DNA would not indicate innocence because the evidence of his guilt remains overwhelming. See Kutzner, 75 S.W.3d at 439.

When measured against this legal standard, we cannot say that the convicting court erroneously determined that Appellant failed to establish the Article 64.03(a)(2)(A) requirements by a preponderance of the evidence. See Tex.Code Crim.Proc.Ann. art. 64.03(a). No reasonable probability exists that exculpatory DNA tests on the evidence for which Appellant seeks DNA testing would prove Appellant=s innocence. See Tex.Code Crim.Proc.Ann. art. 64.03(a)(2)(A). At most, exculpatory DNA tests on this evidence would Amerely muddy the waters.@ See Rivera, 89 S.W.3d at 59. We overrule Appellant=s sole issue and affirm the trial court=s order.

August 19, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)