STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND
COURT OF APPEALS TARRANT COUNTY
Dunning, Appellant, pled guilty to aggravated sexual assault
of a child under fourteen years of age pursuant to a plea
bargain and was sentenced as a habitual offender to 25
years' confinement. He appealed, but his conviction was
affirmed. Dunning v. State, No. 2-99-311-CR (Tex.
App.-Fort Worth Feb. 22, 2001, pet. ref'd) (not
designated for publication). Later, he filed a Chapter 64
motion for post-conviction DNA testing. The trial judge held
a hearing in February 2017 and entered a non-favorable
finding. Appellant appealed that finding, and the court of
appeals reversed and ordered the trial court to enter a
favorable finding. Dunning v. State, 544 S.W.3d 912,
922 (Tex. App.-Fort Worth 2018). The State filed a petition
for discretionary review, which we granted in part. The three
issues that we agreed to review are,
(1) Whether the court of appeals properly determined that the
post-conviction DNA testing results established a reasonable
probability that [Appellant] would not have been convicted
had they been available at the time of trial?
(2) Whether the court of appeals gave proper deference to the
trial court's determination of historical facts and
application-of-law-to-fact issues that turn on credibility or
(3) Whether the court of appeals considered all of the
evidence before the trial court in making its article 64.04
finding before determining that post-conviction DNA testing
results established a reasonable probability that the
appellant would not have been convicted had they been
available at the time of trial?
we conclude that the court of appeals erred, we will reverse
its judgment vacating the trial court's non-favorable
1999, Appellant was charged with aggravated sexual assault of
a twelve-year-old, allegedly intellectually disabled child by
inserting his penis into the victim's anus. After the
jury was sworn in, and Appellant pled not guilty, the trial
court granted the State's motion in limine to exclude
evidence of prior convictions supporting the defense's
theory that Lorne Clark, a registered sex offender and the
stepfather of the victim, was the actual perpetrator. Clark
lived with his stepson and was one of the first people his
stepson told about the assault. Clark had also been convicted
of first-degree sexual abuse of his stepdaughter in Arkansas,
and a few weeks before Appellant's trial was set to
begin, he pled guilty to sexually assaulting two female
children who lived in the same apartment complex. Appellant
wanted to argue that Clark, a white man, sexually assaulted
his stepson and manipulated him into accusing a "black
man" of raping him to deflect attention from himself.
Appellant is black. After the court granted the State's
motion in limine, Appellant made an offer of proof and pled
guilty pursuant to a plea bargain. He entered a written
judicial confession and confessed to committing the crime on
the stand. The parties also agreed to the following
[STATE]: Your Honor, at this time, the State and the defense
have stipulated to the following facts as being true and
correct: We believe the testimony and the evidence would show
at trial that the victim of this offense . . . at no time,
has ever made any allegation regarding Lorne Clark sexually
abusing him. There has been no allegation, formally or
informally to anyone at all, no police agency, not CPS, no
family member. At no time [has] [the victim] ever accused
Lorne Clark of sexually abusing him in any fashion.
And that would conclude our stipulation.
[DEFENSE]: We agree to stipulate to that, Your Honor.
was sentenced to 25 years' confinement as a habitual
offender but was allowed to appeal the trial court's
State maintained custody of the sexual assault kit and the
white shorts that the victim wore during and after the
assault. The victim was still wearing the shorts when he went
to the hospital two days after the assault. The police report
showed that the victim had not bathed or washed his genitals
after the assault. No serology or DNA testing was performed
before Appellant pled guilty.
Chapter 64 Proceedings
2010, Appellant moved for post-conviction DNA testing. The
Department of Public Safety (DPS) Crime Laboratory
technician, Nicole Mullins, tested (1) an anal swab, (2) a
perianal swab, (3) a swab from the back-waistband of the
shorts, and (4) a swab from the inside front-crotch area of
the shorts. She did not find any interpretable DNA profiles.
The trial court entered a non-favorable finding because the
results were inconclusive. Appellant appealed, but during the
pendency of his appeal, the trial court appointed counsel to
represent him. A motion to dismiss was filed, which the court
of appeals granted. Dunning v. State, No.
02-15-00222-CR, 2015 WL 5722605 (Tex. App.-Fort Worth Aug.
26, 2015) (mem. op., not designated for publication).
then sought to conduct his own DNA testing at the Serological
Research Institute (SERI). The trial court granted
Appellant's motion and rescinded its non-favorable
finding. Serologist Amy Lee performed the testing. She
reached the following conclusions,
(1) The anal-swab extract contained a single source male DNA
profile matching the victim at all tested loci.
(2) The perianal-swab extract contained a single weak male
DNA profile from which the victim is included as a possible
source. The defendant is excluded as a possible contributor
to that profile.
(3) A single weak male DNA profile was obtained from the
white-shorts swab that includes the victim as a possible
source with the chance that another random person unrelated
to him could be similarly included is approximately one in
330, 000. The defendant is excluded as a possible contributor
to that profile.
(4) A mixture of at least two individuals was obtained from
the front-crotch swab and extract. The victim is included as
the major contributor to both mixtures and the chance that
another random person unrelated to him could be similarly
included is approximately one in one billion. The defendant
is excluded as a possible contributor to both mixtures.
(5) A mixture of at least two individuals was obtained from
the back-waistband swab with both the victim and the
defendant excluded as possible contributors to its major
portion. There is insufficient information in its minor
component to draw any conclusions.
(6) The extract from the back-waistband swab contained a weak
mixture of at least two individuals, including at least one
male, but there is insufficient information for any further
conclusions to be made.
(7) No DNA was obtained from either of the reagent blank
State asked Doctor Bruce Budowle to review Lee's
conclusions, and he agreed with all of them except Conclusion
#5. He disagreed that the victim could be excluded as the
contributor to the major portion of the mixture found on the
back-waistband swab. The importance of the disagreement is
that, if Appellant and the victim are excluded, then that DNA
from the major portion of the mixture came from a third
party, but if the victim cannot be excluded, as Budowle
asserted, then the major contributor could be the victim or
another person. (i.e., the result is inconclusive). He also
cautioned against overstating the probative value of finding
trace third-party DNA on the crotch swab and in the crotch
extract. The trial court then entered a new non-favorable
finding after "reviewing the evidence presented before
it" because the DNA results did "not cast
affirmative doubt on the defendant's guilt."
The Court of Appeals
appeal, the State argued that Appellant's exclusion as a
major contributor to all of the tested items was not
exculpatory because it did not prove that he was not the
assailant. Dunning, 544 S.W.3d at 919. It further
asserted that, even if the results were exculpatory to some
degree, Appellant still could not prevail because the victim
identified him in a photographic array and because Appellant
entered a judicial confession and confessed on the stand to
committing the assault. Id. It also argued that the
trial court's finding should be upheld because, in
entering a non-favorable finding, the trial court must have
credited Budowle's testimony, not Lee's, that the
test results from the back-waistband swab were inconclusive
and that the presence of minor DNA profiles on the
front-crotch area swab did not show that there was an
alternative suspect. Id. at 919-20.
court of appeals found that the exclusion of Appellant as a
major contributor to all of the tested items, and the results
showing the existence of DNA from a third person in the
crotch of the shorts, were strongly exculpatory. Id.
at 920. It reasoned that this is not a case in which the
defendant's DNA is simply absent or where it is
inconclusive as to whether the defendant was a
contributor. It also distinguished this case from
LaRue v. State, 518 S.W.3d 439, 446 (Tex. Crim. App.
2017) because, here, the effect of the exculpatory DNA
evidence does not merely "muddy the waters."
weighing the test results against the inculpatory evidence,
the court of appeals accorded Appellant's guilty plea and
testimonial confession little value because it concluded that
Appellant's plea was involuntary. According to the court,
Appellant pled guilty only because the trial court granted
the State's motion in limine excluding evidence of Clark
as a possible alternative suspect-the "platform" of
Appellant's defense-because he was indicted as a habitual
offender, and because the State agreed to recommend the
minimum term of confinement of 25 years. The court also cited
the fact that Appellant was prepared to go to trial before
the motion in limine ruling.
court of appeals acknowledged that the victim identified
Appellant as his rapist in a photographic array, but it said
that it also had to consider that "[the victim] was
twelve years old, was mentally impaired and hearing impaired,
lived with Clark, and according to [Appellant]'s trial
counsel, could have been easily manipulated by Clark to
deflect suspicion away from himself. Clark had also spoken to
police and reported that his stepson had said that 'a
black man raped me.'"
court went on to explain that, 
[E]xamining the entire record, giving almost total deference
to the trial court's resolution of disputed historical
fact issues supported by the record and
applications-of-law-to-fact issues turning on witness