Court of Appeals of Texas, Second District, Fort Worth
THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and KERR, JJ.
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
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. 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; 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.
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.
the State possessed a sexual assault kit containing various
swabs, as well as the complainant's white shorts worn
during and after the assault,  no DNA testing had been conducted
on any of the items prior to trial.
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).
Procedural Background Concerning Post-Conviction DNA
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.
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).
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). 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).
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.
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.
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. Lee was asked about her conclusions, and
in particular, her findings about the complainant's white
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?
Q. And the other one does not belong to Johnnie Dunning; is
A. That's correct.
Lee's testimony confirmed that DNA existed on the
complainant's white shorts that was not attributable to
Dunning or to the complainant.
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
[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 ...