GLENN RYDEL ARMSTRONG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00117-CR
............................
GLENN RYDEL ARMSTRONG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F91-70574-SV
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OPINION
Before Chief Justice Thomas and Justices Whittington and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Glenn Rydel Armstrong appeals from the trial court's December 13, 2006 order denying appellant's motion for post-conviction DNA testing. In two issues, appellant contends the trial court erred by concluding identity was not an issue and that appellant failed to establish he would have been acquitted if DNA testing had been done.
        For reasons that follow, we resolve appellant's first issue in his favor and the second issue against him. We affirm the trial court's order.
        Appellant pleaded not guilty before a jury to aggravated sexual assault. On July 14, 1992, a jury found appellant guilty and assessed his punishment at ninety-nine years in prison and a $2,000 fine. This Court affirmed appellant's conviction and issued the mandate on December 9, 1996. See Armstrong v. State, No. 05-92-01851-CR, 1996 WL 682433 (Tex. App.-Dallas Nov. 26, 1996, no pet.) (per curiam) (not designated for publication).
        On September 6, 2006, appellant filed a formal motion for DNA testing, and on December 11, 2006, the State responded to the motion. On December 13, 2006, the trial court denied appellant's motion on the grounds that identity was not an issue and appellant could not prove he would not have been convicted despite exculpatory DNA test results. This appeal ensued.
Factual Background
        When the complainant, Carrie Cooks, got home about 11:30 a.m. on November 13, 1991, she noticed an apartment guidebook on a table. Even though Cooks knew she had not left the book where it was, she went to her bedroom.   See Footnote 2  When Cooks walked into the bedroom, a man jumped out of her closet. The man was holding a steak knife. The man's face was covered with a black stocking. He told Cooks to turn around. Holding the knife to her throat, the man took Cooks into the dining room where he blindfolded her with dinner napkins. However, before he did so, Cooks was able to see through the black stocking covering the man's face. She recognized the man as an apartment security guard she had seen and spoken to several times around her apartment complex. Cooks identified the man as appellant.
        Using strips of Cooks's robe, appellant bound her hands and feet. He then undressed Cooks and tied her to the bed. With the knife at her throat, and threatening to kill her if she spoke, appellant vaginally raped Cooks. Afterwards, appellant watched Oprah and various television programs for two to three hours while Cooks remained bound and blindfolded. Appellant paced, looked out the window, made comments about how nosey Cooks's neighbors were, played the stereo, and drank Kool-aid. Appellant told Cooks she needed to lock her patio door because this was not the first time he had been inside her apartment. Appellant talked about things he would take or not take, and told Cooks he might return, that she “never kn[e]w.” Appellant told Cooks he was going to take her VCR and her car.   See Footnote 3  Cooks finally heard the man leave. She was able to get one hand untied and the blindfold partially off before she saw appellant walk back into the bedroom. Cooks was able to clearly see appellant at that time because his face was uncovered. Cooks recognized him as an apartment complex security guard. Appellant told Cooks he was going to have to kill her because she had seen him. Cooks tried to convince appellant she had not really seen him. When he came toward her Cooks urinated on herself in the bed. Appellant wiped Cooks with a towel, rebound her, and raped her twice more before he finally left. Cooks yelled out the window for help; neighbors called the police. Shortly, the police and paramedics arrived and took Cooks to Parkland Hospital for an examination.
        Paramedics arrived to find Cooks naked, crying, with feet bound, and evidence her wrists had also recently been bound. The police arrived shortly and questioned Cooks. Although Cooks was upset, she answered the questions. Cooks told the police the man who raped her was an ex- security guard at the apartment complex.
        While police were still at the scene, another security guard, Edward Dunham, tried to find appellant, but did not. Later that evening, Dunham found appellant and told him about the rape and that the police wanted to talk to him. Appellant told Dunham he went to pick up his girlfriend, played basketball for several hours, and had witnesses to say he was somewhere else.
        The following day, appellant went back to the apartment complex, and began loading his truck with boxes from his apartment. The police asked Dunham to detain appellant until they arrived. Appellant told Dunham the police had only thirty minutes to arrive or he was leaving. The police arrived and, after impounding appellant's truck, found Cooks's VCR in a box in his truck.
        The police secured the scene. No identifiable fingerprints were found at the scene; however, the police collected some physical evidence, including two white towels, torn pieces of a robe, and the bottom sheet on the bed from the apartment. The evidence was submitted to the Southwestern Institute of Forensic Sciences (SWIFS) for analysis. Pubic hairs were found on one of the towels.   See Footnote 4  Cooks was excluded as a match to the hairs; however, appellant could not be excluded as a source of the pubic hairs on the towel because the hairs were similar in microscopic appearance to appellant's pubic hair. Appellant was excluded as a source of head hairs found on the bed sheet.
        Other evidence was collected from Cooks at the hospital, namely: a vaginal swab, vaginal smear, and a blood sample. Laboratory analysis of the blood showed it to be of ABO type. The swab and smear were examined for seminal fluid and spermatozoa. Although spermatazoa were found, the laboratory was not capable of finding genetic markers of the spermatozoa. No seminal fluid was found on either the sheet or towels. The materials used to bind Cooks were not tested.
        The doctor at Parkland noted Cooks had urinated after the second assault, that there were sperm in the vaginal vault, and there was evidence of sexual intercourse with ejaculation; however, there was no notation of trauma to her vulva. That, however, the doctor explained, did not indicate a rape had not occurred.
        At trial, Cooks testified she was raped three times by only one person. She never heard other voices or felt the presence of anyone else. On rebuttal, she also testified she did not know anyone named J. B. or Sleepy.         Appellant testified at trial. He had worked at the apartment complex between June and late October 1991. Appellant admitted he knew Cooks. Appellant claimed “J.B.” and “two other guys” asked him on Sunday, November 12, if they could use his apartment   See Footnote 5  for one day that week. Appellant did not ask the men why they wanted to use his apartment because he was in the process of moving. November 12 was appellant's birthday and he had no plans to use the apartment that day. Appellant went to the barbershop around 10:30 a.m. His wife called and canceled their lunch plans, so appellant went home, arriving about 1:45 p.m.
        When appellant arrived back at his apartment, “J.B.” was there and there was a VCR on the bar that appellant had not left there. No one else was in the apartment at the time. Later, J.B. came in and was surprised to find appellant there. J.B. asked appellant to go across the hall to Cooks's apartment. Appellant did not find this suspicious because he had seen J.B. and Cooks talking during the summer. Appellant went across the hall to apartment number 228, Cooks's apartment. When he got there, the stereo was on and appellant said “the guys” were talking over the stereo. J.B. directed appellant to go to the back room, which he did. There he saw a man nicknamed “Sleepy” either under the covers with the complainant or on top of her. The complainant was halfway blindfolded and appellant could see she was bound; she was looking at him. Appellant said he did not want “[any] part of this” and he was leaving. The men pointed weapons at appellant, put a weapon on the back of his ear, and made him go back into the room where the complainant was. After the men forced appellant to take his pants off, appellant leaned over the complainant “as an arch.” One man with a weapon was standing over him watching. When appellant again said he did not “want [any] part of ”it, the men told appellant he had better get back in the room or else they were going to kill him-just as they were going to kill the complainant. Appellant began walking toward the front door. The men stopped appellant and told him not to say anything about this to anyone or else they would “come and get” him. The men ordered appellant to stay until they left. Appellant left one to three minutes after the other guys left.   See Footnote 6  Appellant did not call the police nor did he try to help Cooks. Appellant testified he felt bad about that. Appellant talked to his wife about the “incident” and then went to play basketball. Appellant had no idea how the VCR got packed in his stuff, because he had packed all the boxes himself.
Post-Conviction DNA Motion
        On appeal, appellant contends the trial court erred in denying his post-conviction DNA motion because, although he was in the complainant's apartment on the date in question, he was not her assailant and other men were present in the apartment that day. Appellant has consistently maintained his innocence. Thus, appellant argues, but for the failure to present DNA evidence at trial, he would not have been convicted of this offense. Appellant also contends there is a substantial likelihood he would be acquitted if DNA testing were obtained.
        The State responds identity was and is not an issue in this case because the complainant knew appellant by appearance as a security guard at her apartment complex for several months. The State further contends appellant did not show, by a preponderance of the evidence, that exculpatory DNA test results would prove he would not have been convicted. Appellant claims the two guys forced him to sexually assault the complainant, but that he faked the assault. So, lack of appellant's DNA at the scene, argues the State, would not prove anything.
Issue One - Identity
        In relevant part, appellant's motion states:
 
        Identity is always an issue, even when the convicted person seeking DNA testing has plead guilty or nolo contendere in the case. . . . Identity was an issue in the case at trial, and continues to be an issue because Movant maintains his innocence of this offense. . . . Movant admits to being at the complainant's apartment, but remains adamant that he was not the assailant. The biological evidence collected from the complainant at the hospital, the vaginal swab, vaginal smear, and blood sample; and the physical evidence collected at the scene, the towels, and bed sheet were not tested for DNA evidence.
 
 
 
        But for the failure to present DNA evidence presented at trial, Movant claims he would not have been convicted of this offense. The advanced DNA testing procedures available today are far better at detecting and testing even the smallest and degraded DNA samples than the technology used at trial. Further, if DNA testing shows that the DNA does not belong to the Movant, Movant claims that there is a substantial likelihood that he would be acquitted of the offense.
 
        Appellant's 2006 motion for DNA testing fairly alleges identity is an issue, notwithstanding the complainant knew and recognized her attacker, by appearance, as a former security guard at the apartment complex where she lived. Appellant has consistently maintained his innocence. And, according to appellant, others were involved in the assault.
Analysis
        In a recent opinion holding an appellant was entitled to post-conviction DNA testing, the Court of Criminal Appeals stated:
 
        That the victim testified that she knew appellant and identified him as her attacker is irrelevant to whether appellant's motion for DNA testing makes his identity an issue and whether it shows that exculpatory DNA tests would prove his innocence. The language and legislative history of Article 64.03(a)(1)(B) make it very clear that a defendant, who requests DNA testing, can make identity an issue by showing that exculpatory DNA tests would prove his innocence. This applies even when a defendant has pled guilty, thereby conceding the issue of identity at trial. See Article 64.03(b) (convicting court prohibited from finding that identity was not an issue in the case solely on the basis of guilty or nolo contendere plea); but see Bell v. State, 90 S.W.3d 301, 308 (Tex. Cr. App. 2002) (suggesting that a prior confession renders identity a nonissue in a Chapter 64 proceeding). This also applies even in cases like this where the victim knew the person she identified at trial as her attacker.
 
Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007) (footnote omitted).         We hold, therefore, the trial court erred in holding identity was not an issue in this case. However, that does not end our inquiry.
Issue Two - Whether Exculpatory DNA Test
Results Would Have Resulted in Appellant Not Being Convicted
 
 
        We must next address appellant's second issue: whether exculpatory DNA test results excluding appellant as the donor would have resulted in appellant not having been convicted.
        The trial court's order denying appellant's motion states, in part,
 
        After considering the pleadings of both [appellant] and the State, the requirements of articles 64.01 and 64.03 of the Texas Code of Criminal Procedure, the record, and the Court's own personal experience and knowledge, this Court concludes that [appellant] is not entitled to post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure.
 
The trial court then found appellant had not established by a preponderance of the evidence he would not have been convicted if exculpatory DNA test results had been obtained through DNA testing, and that “[o]verwhelming evidence proved [appellant's] guilt at trial.”
        As movant, appellant was required to show that a reasonable probability exists that the DNA test would prove his innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). “A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.” Bates v. State, 177 S.W.3d 451, 453 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (quoting Torres v. State, 104 S.W.3d 638, 640 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Ex Parte Guzman, 730 S.W.2d 724, 733 (Tex. Crim. App. 1987)). A reasonable probability of innocence does not exist if there is sufficient evidence, other than the evidence in question, to establish guilt. Torres, 104 S.W.3d at 640.
        In reviewing the trial court's order, we apply a bifurcated standard, affording almost total deference to the trial court's factual determinations and its application of law to fact determinations that turn on credibility and demeanor. Rivera, 89 S.W.3d at 59. However, we review de novo the ultimate issue of whether the trial court was required to grant a chapter 64 motion for DNA testing. Id.
Analysis
 
         Here, appellant's motion specifically states he would not have been convicted of the offense but for the failure to present DNA evidence at trial. Moreover, when a trial court takes judicial notice of the trial record during a DNA proceeding, that factual record is enough for the trial court to determine by a preponderance of the evidence appellant would not have been convicted if the DNA results were favorable despite whether or not they were specifically mentioned in the DNA motion. See Smith v. State, 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2005) (quoting House Criminal Jurisprudence Comm., Bill Analysis, Tex. H.B. 1011, 78th Leg., R.S. (2003)).
        Appellant does not challenge the competency of Cooks's testimony. When other competent evidence connects appellant to the crime, it is this evidence the movant must overcome to prove he would not have been convicted. Rivera, 89 S.W.3d at 60-61; see Wilson v. State, 185 S.W.3d 481, 486 n.7 (Tex. Crim. App. 2006). Appellant has failed to do so.
        The complainant's and appellant's versions of events differ greatly. By its guilty verdict, the jury credited the complainant's version, not appellant's. Credibility verification is not a valid reason for post-conviction DNA testing. See Bates, 177 S.W.3d at 454 (citing Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2-5, (amended 2003) (containing statutory provisions governing post-conviction requests for DNA testing)).
        Moreover, appellant's testimony is contradictory. Appellant first told Dunham, another security guard, he had an alibi for the date of the offense. Later, appellant's factual version was that he was forced, at gunpoint, to sexually assault the complainant; however, appellant contends he “faked” the assault. Even if testing were done and none of appellant's DNA was found, those facts would not prove appellant would not have been convicted. Moreover, the jury was instructed on the affirmative defense of duress and rejected it.
        Appellant's motion seeks to verify credibility which is not a valid purpose for DNA testing. Appellant failed in his burden to show he would not have been convicted if favorable DNA result had been introduced at his trial. The trial court did not err in denying appellant's post-conviction motion.
        We affirm the trial court's order denying appellant's motion for post-conviction DNA testing signed and entered on December 13, 2006.   See Footnote 7 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070117F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Cooks had noticed things disturbed in her apartment before; however, she never thought too much about it.
Footnote 3 After the police arrived at her apartment, Cooks noticed that her VCR and car keys were gone.
Footnote 4 The other towel did not produce any hairs suitable for comparison.
Footnote 5 Appellant's apartment number was 229.
Footnote 6 In a written statement to police given the day after the rape, appellant said he left some forty-five to sixty minutes after them.
Footnote 7 We note the order is file marked December 11, 2006.