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Dunning v. State

Court of Appeals of Texas, Second District, Fort Worth

March 1, 2018



          PANEL: WALKER, MEIER, and KERR, JJ.



         I. Introduction

         Appellant Johnnie Dunning raises a single point challenging the "not favorable" finding made by the trial court following post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. For the reasons set forth below, we will sustain Dunning's point, vacate the trial court's "not favorable" finding, and remand this case to the trial court for an entry of a finding that had the post-conviction DNA test results attained by Dunning been available during the trial of the offense, it is reasonably probable that Dunning would not have been convicted.[1]

         II. Factual Background

         The evidence and testimony presented at the chapter 64 DNA hearing show the following factual background. In 1999 on the morning of Dunning's jury trial for the offense of aggravated sexual assault of a child by inserting his penis into the complainant's anus, after the jury had been sworn and Dunning had entered a plea of "not guilty, " the trial court granted the State's motion in limine to exclude evidence of convictions by registered-sex-offender Lorne Clark and to prevent Dunning from making any arguments or statements that Clark was the actual assailant. Clark was the stepfather of, and lived in an apartment with, the mentally impaired and hearing impaired twelve-year-old male complainant. Dunning's planned defense at trial was that Clark-not Dunning-had in fact perpetrated the offense, and that Clark had influenced and manipulated his stepson to identify Dunning--"the black man"-as the perpetrator in order to steer the investigation away from himself.[2] Dunning explained that his defense would be based on the facts that: Clark had been previously convicted of first degree sexual abuse of Clark's stepdaughter in Arkansas; about a month after Dunning's arrest, Clark had been arrested for sexual assault of two other female children who lived in the same apartment complex;[3] and, a few weeks before Dunning's trial was scheduled to start, Clark had pleaded guilty to the sexual assault of the two other female children.

         In anticipation of presenting his defense at trial that Clark was the perpetrator of the sexual assault on the complainant, Dunning had filed notice of his intent to offer copies of Clark's prior sexual abuse conviction in Arkansas. When the trial court ruled that Dunning would not be able to present this evidence, Dunning entered into a plea bargain. Dunning faced a life sentence because of two prior credit card abuse convictions that are no longer classified as felonies. When the State agreed to the minimum sentence of 25 years' confinement and the trial court agreed to grant Dunning permission to appeal the adverse ruling concerning the Lorne Clark evidence and arguments and also permitted Dunning to make a bill of exception, Dunning entered a guilty plea conditioned on these agreements.[4]

         Although the State possessed a sexual assault kit containing various swabs, as well as the complainant's white shorts worn during and after the assault, [5] no DNA testing had been conducted on any of the items prior to trial.[6]

          In accordance with Dunning's plea bargain conditioned on his right to appeal the trial court's ruling concerning the Lorne Clark evidence and arguments, Dunning did appeal. Seventeen years ago, this court affirmed Dunning's conviction, noting that the case "presented a very close question" and that other than the complainant's identification of Dunning in a photographic lineup, "[n]o other evidence linked [Dunning] to the offense." Dunning v. State, No. 02-99-00311-CR, pp. 2, 5 (Tex. App.-Fort Worth, Feb. 22, 2001, pet. ref'd) (not designated for publication).

         III. Procedural Background Concerning Post-Conviction DNA Testing

         In 2010, Dunning began requesting a post-conviction DNA test pursuant to chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2017). Ultimately, after an approximately four-year delay for reasons not relevant here, the trial court ordered the Department of Public Safety to conduct DNA testing of the complainant's white shorts and several additional items in the sexual assault kit but denied Dunning's request for counsel at that time.[7]

         The DPS Crime Laboratory determined the proper locations for testing and tested portions of the white shorts but found no interpretable DNA profile. Thus, the State moved for an entry of a not favorable finding. On June 9, 2015, the trial court found that the lab results were inconclusive and entered a not favorable finding. During his appeal of the June 9, 2015 not favorable finding, Dunning was appointed counsel, and he filed a motion to dismiss his appeal, which we granted. See Dunning v. State, No. 02-15-00222-CR, 2015 WL 5722605, at *1 (Tex. App.-Fort Worth Aug. 26, 2015, no pet.) (mem. op., not designated for publication).

         Dunning then sought to conduct his own DNA testing and the trial court authorized the Serological Research Institute (SERI) to conduct the testing. Amy Lee, a forensic serologist at SERI, tested items, which included the white shorts, items in the sexual assault kit, and various swabs. The results and interpretations of SERI's testing are found in Lee's July 18, 2016 report. Lee's report concerning SERI's testing contains seven different conclusions, including that Dunning was excluded as a donor of the DNA on all of the items tested (conclusions 2-5) and that, in addition to DNA of the complainant, there was also DNA from a different person on the "crotch swab" of complainant's white shorts (conclusion 4).[8] Lee also concluded that both the complainant and Dunning were excluded as contributors to the DNA on the waistband swab of the white shorts (conclusion 5).

         The State requested that Dr. Bruce Budowle review SERI's testing and the conclusions in Lee's report. The State filed an affidavit from Dr. Bodowle in which he agreed with all of Lee's conclusions except for part of conclusion 5, which excluded the complainant as a possible contributor of the DNA located on the white shorts waistband swab. Dr. Budowle stated, "While I agree that Johnnie Dunning can be excluded as a possible contributor of the major portion of the mixture, the victim . . . cannot be excluded as a possible contributor . . . ." Thus, even in his disagreement about part of conclusion 5, Dr. Budowle still agreed with Lee that none of Dunning's DNA was found on any of the items tested.

         On February 28, 2017, the trial court conducted a chapter 64 DNA hearing and received testimony from Dunning's trial counsel, Amy Lee, Dr. Budowle, and Dunning. As set forth in the footnoted quotations from Dunning's trial counsel's testimony at the chapter 64 DNA hearing, Dunning's planned trial defense was to suggest that Clark--who was a registered sex offender, who had been convicted in Arkansas of sexual abuse of his stepdaughter, who had been convicted of sexual assault of two other children who lived in complainant's apartment complex, and who had helped the complainant report the offense and identify Dunning as the assailant--was actually the perpetrator. The trial court's morning-of-trial ruling excluding this evidence after Dunning had pleaded not guilty led to the plea bargain and Dunning's guilty plea. Dunning's trial counsel opined that DNA findings on the complainant's clothing including a third person, not the victim and not Dunning, and excluding Dunning as a contributor to all DNA tested, would have been material and relevant to Dunning's guilt or innocence but that there was no DNA testing done prior to Dunning's guilty plea.

         The trial court also heard testimony from Amy Lee and Dr. Budowle. Both Lee and Dr. Budowle agreed that Dunning's DNA was not found present on any of the items tested.[9] Lee was asked about her conclusions, and in particular, her findings about the complainant's white shorts:

Q. So what you're saying in summary is the DNA on the victim's shorts, and this is -- if we go back and look, these are shorts that the swab actually came from -- where was the swab? What part of the underwear did the swab touch? It's the rear area of the pants; is that right?
A. I believe it was described as 'crotch.'
Q. And that sample there has two people's DNA, right?
A. At least, yes.
Q. One of them belongs to the victim, right?
A. Correct.
Q. And the other one does not belong to Johnnie Dunning; is that right?
A. That's correct.

         Thus, Lee's testimony confirmed that DNA existed on the complainant's white shorts that was not attributable to Dunning or to the complainant.[10]

          With only slight variances, Dr. Budowle's live testimony reaffirmed his affidavit, which provided that he was in agreement with SERI's conclusions except for part of conclusion 5. Dr. Budowle testified live that he was "cautious" concerning SERI's conclusion 4 although he did not disagree outright with it. Dr. Budowle also expressed some disagreement on how SERI performed its statistical analysis, but stopped short of any type of reliability challenge to the protocols utilized by SERI in obtaining statistical data. Ultimately, Dr. Budowle testified on cross-examination:

[DEFENSE COUNSEL]: Q. But the fact of the matter is you don't have any dispute that this little boy's underwear has got his DNA on it and got ...

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