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Dunning v. State

Court of Criminal Appeals of Texas

April 3, 2019

JOHNNIE DUNNING, Appellant
v.
THE STATE OF TEXAS

          ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

          OPINION

          Hervey, J.

         Johnnie 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 demeanor?
(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?

         Because we conclude that the court of appeals erred, we will reverse its judgment vacating the trial court's non-favorable finding.

         BACKGROUND[1]

         a. Trial Proceedings

         In 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.[2] The parties also agreed to the following stipulation:

[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.

         Appellant was sentenced to 25 years' confinement as a habitual offender but was allowed to appeal the trial court's ruling.

         The 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.

         b. Chapter 64 Proceedings

         In 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).

         Appellant 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[3] 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 extracts.

         The 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."

         c. The Court of Appeals

         On 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.

         The 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.[4] 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."

         In 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.

         The 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.'"[5]

         The court went on to explain that, [6]

[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 ...

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