MARVIN WAYNE MANNING, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00363-CR
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MARVIN WAYNE MANNING, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-93570-P
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MEMORANDUM OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice FitzGerald
        Appellant Marvin Wayne Manning challenges the trial court's Article 64.04 Findings on the Results of Post-Conviction DNA Testing. Specifically, Manning challenges the court's finding that, had the DNA results from the testing been available during his trial, it is not reasonably probable that he would not have been convicted. We conclude the dispositive issue before us is clearly settled in law. Accordingly, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of the underlying offense, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters in detail.         Manning was convicted in 1988 of aggravated sexual assault; he was ultimately sentenced to twenty-five years' confinement. In 2006, following Manning's informal pro se request and a formal motion filed by his appointed counsel, the trial court ordered DNA testing of the vaginal swab from the victim's rape kit. The testing was performed at the Texas Department of Safety's Garland Crime Laboratory. There, the genetic material on the swab was extracted, yielding a fraction from non-sperm cells usually associated with the victim (the epithelial fraction) and a fraction from sperm cells (the sperm fraction). The forensic scientist at the laboratory produced a Serology/DNA Report (the “Report”), which included test data as well as the scientist's conclusions. The Report indicated the DNA profile from the sperm fraction was consistent with Manning's profile. The Report further concluded Manning “cannot be excluded as the contributor of the stain.” Indeed, according to the Report, the probability of selecting a non-related person at random who could be the source of the sperm fraction DNA profile was approximately one in 116.2 quintillion for African Americans. The Report concluded “[t]o a reasonable degree of scientific certainty, Marvin Manning is the source of the sperm fraction of the vaginal swab (excluding identical twins).”
        At the hearing following the DNA testing, the Report was entered into evidence; counsel for Manning stated he had no objection. Manning stated on the record that he did not have an identical twin. The trial court announced its findings, later reduced to writing, which tracked the Report's conclusions. Having accepted those test results, the court found it was not reasonably probable that if the DNA test results had been available at Manning's trial, he would not have been convicted.
        Manning's sole issue on appeal is that the trial court erred by finding the DNA test results were unfavorable to him because the Report was not reliable. We review de novo a trial court's finding that the DNA test results were not favorable to the appellant. Booker v. State, 155 S.W.3d 259, 266 (Tex. App.-Dallas 2004, no pet.). Manning contends the State “failed to present any evidence to show whether specific sperm fraction loci were examined, and if so, which of the examined loci yielded the result that Manning could not be excluded as the contributor.”
        To the extent Manning's complaint is the reliability of what he calls the “incomplete” Report, he has waived that complaint by failing to object to the admission of the Report into evidence. See Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) (“To preserve error for appellate review, the complaining party must make a timely, specific objection.”); see also Tex. R. App. P. 33.1(a).
        If Manning is really arguing the evidence does not support the trial court's finding that the testing was not favorable to him, we disagree. Manning's only specific attack on the Report is that it does not sufficiently identify the material tested. But the Report clearly identifies the loci that were examined on the sperm fraction.   See Footnote 1  Moreover, statistics attached to the Report indicate Manning's profile matched the sperm cell fraction at all loci examined. The post-conviction DNA testing was unequivocally “not favorable” to Manning because it failed to demonstrate a reasonable probability that Manning was innocent. Booker, 155 S.W.3d at 266.
        We overrule Manning's sole issue and affirm the trial court's Article 64.04 Findings on the Results of Post-Conviction DNA Testing.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070363F.U05
 
Footnote 1 The report states that the sample was examined at the following loci: D8S1179, D21S11, D7S820, CSF1PO, D3S1358, TH01, D13S317, D16S539, D2S1338, D19S433, vWA, TPOX, D18S51, Amelogenin, D5S818, and FGA.