Davenport, Allen Lee v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed October 14, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01177-CR

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ALLEN LEE DAVENPORT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 23,836

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M E M O R A N D U M O P I N I O N

Allen Lee Davenport appeals the order denying his motion for post-conviction DNA testing. We overrule appellant s issue and affirm.

Background

In 1993, appellant was convicted of sexual assault after pleading guilty and was sentenced to eighteen years confinement. In January 2002, appellant filed a motion requesting post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 64.05 (Vernon Supp. 2003). The State responded that the only biological evidence in its possession is blood on a swatch of the victim s pants. The trial court denied appellant s motion finding identity of the appellant was not an issue in the case, and no reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained from testing the swatch for appellant s DNA. In one issue, appellant claims the trial court erred in denying his motion for DNA testing, arguing that identity was an issue in the case and exculpatory DNA test results would show that appellant had no contact with the sexual assault victim.

Discussion

A convicting court may order DNA testing only if identity was an issue in the case and the applicant has proved by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory DNA results had been obtained. Tex. Code Crim. Proc. Ann. art. 64.03. When reviewing a trial court s decision to order DNA testing, we apply a bifurcated standard of review affording almost total deference to the trial court s determination of historical facts and application of law to facts that turn on credibility and demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review other application-of-law-to-fact issues de novo. Id.

The evidence presented on the motion for DNA testing shows that the victim, G.C., left a bar with appellant and two ex-boyfriends. They drove to a beach where G.C. was beaten and sexually assaulted by one man while at least one of the other men also beat G.C. and prevented her from running away. G.C. suffered numerous cuts and lacerations on her legs. G.C. identified the man who sexually assaulted her as Al, the man who was not an ex-boyfriend. She picked appellant s picture out of a photograph line up, stating that she thought he was the man who had sexually assaulted her, but she could not be sure because her attacker had been wearing a baseball cap. Appellant admitted to investigators he was present at the time of the sexual assault and that he had tried to have sex with G.C., but he could not get an erection. Further, G.C. s ex-boyfriends identified appellant as G.C. s primary attacker. At the hearing on the motion for DNA testing, appellant again admitted that he had been present at the scene of the assault, but denied attempting to have sex with the victim at that time. He further claimed that the other two men had assaulted G.C., but he had not.

The State claims the trial court correctly found that identity was not an issue in this case. Appellant admitted that only he, the victim, and the victim s ex-boyfriends were present during the assault. G.C. identified the man who had sexually assaulted her as the man who was not an ex-boyfriend, and appellant admitted that G.C. would have no problem identifying the other men. Additionally, appellant admitted to investigators that he attempted to have sex with G.C. during the assault. Although appellant recanted this admission at the hearing on his motion for DNA testing, we defer to the trial court s determination of credibility and hold that the trial court did not err in finding that identity was not an issue. See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002) (holding identity was not at issue when the defendant had confessed).

Additionally, the State argues appellant did not prove by a preponderance of the evidence a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. To prove this, appellant must show the absence of his DNA on G.C. s pants would prove his innocence and not merely muddy the waters. See Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). The blood on G.C. s pants could have come from a number of sources other than the man who sexually assaulted her. Four people, including the victim, were present at the scene of the assault, and G.C. was the only one with injuries. Especially in light of the other evidence of appellant s guilt, we agree with the trial court that appellant did not prove exculpatory DNA testing would have precluded his prosecution or conviction. See Thompson v. State, 95 S.W.3d 469, 472 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) (holding that the absence of the defendant s DNA on a knife used in an attack by three men would not prove defendant s innocence, especially considering all the other evidence against the defendant). We overrule appellant s sole point of error.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 14, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).