Angel Ambrose v. the State of Texas ( 2023 )

AFFIRMED and Opinion Filed April 21, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00132-CR
ANGEL AMBROSE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F10-59769-X
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Breedlove
Opinion by Justice Breedlove
In 2012, appellant Angel Ambrose was convicted of aggravated sexual assault
of a child under the age of 14 and was sentenced to 15 years in prison. In 2018,
appellant obtained post-conviction DNA testing pursuant to Chapter 64 of the Texas
Code of Criminal Procedure. After a hearing, the trial court found that “had these
results been available during Ambrose’s trial, it is NOT reasonably probable that he
would not have been convicted.”
Appellant appeals the trial court’s finding, complaining that the trial court
erred in failing to hold a hearing under Texas Code of Criminal Procedure article
64.04 and that had the results of the DNA testing been available during appellant’s
trial it was not reasonably probable that he would not have been convicted. We
affirm the trial court’s judgment.
I. BACKGROUND
Appellant was charged with penetrating the sexual organ of a minor with his
finger. Complainant J.G. was seven years old at the time of the offense on or about
April 11, 2009. J.G. was taken to a hospital where she underwent a sexual assault
examination. At that time, vaginal, anal, and oral swabs were collected. The
samples were tested for the presence of seminal fluid shortly after, but no seminal
fluid was found on the samples and no DNA testing was conducted. The samples
were retained by the Dallas Police Department.
On December 17, 2012, appellant entered a negotiated plea of guilty and was
sentenced to 15 years’ imprisonment. On April 10, 2017, appellant filed a motion
and supporting affidavit requesting post-conviction DNA testing pursuant to Chapter
64 of the Texas Code of Criminal Procedure. The State did not oppose the motion.
The court granted the motion on March 21, 2018, and ordered Short Tandem Repeat
(STR) Polymerase Chain Reaction (PCR) and Y-STR testing of the swabs from the
sexual assault kit along with buccal swabs obtained from appellant.
The DPS lab presented the results of the testing in three written reports. The
first report, dated August 14, 2019, described the items received and analyzed by
DPS. These items included the vaginal, anal, and oral swabs from the sexual assault
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kit along with a buccal swab from appellant. The kit also contained some smear
slides which were not examined.
The second report, dated December 3, 2019, concluded that based on STR
testing of the swabs, all swabs yielded a partial DNA profile that originated from a
single female individual. Appellant was excluded as a contributor to these profiles.
The third report, dated the same day, reported that no Y-STR profile was
obtained from either the vaginal or anal swabs. However, a partial Y-STR profile
consistent with appellant was obtained from the oral swabs. DPS concluded that “At
these loci, the selected profile is found in 4 of 5,717 total individuals within the
database. In addition any paternally-related male relatives of [appellant] cannot be
excluded as being the contributor of this male DNA profile.”
On April 29, 2021, the trial court held a hearing via Zoom on the results of
the post-conviction DNA testing which both the State and appellant’s counsel
attended. On August 11, 2021, the court issued its findings, concluding that “had
these results been available during Ambrose’s trial, it is NOT reasonably probable
that he would not have been convicted.”
Appellant appealed the trial court’s ruling on September 7, 2021. In two
issues, appellant complains that (1) the trial court erred in failing to hold a hearing
under Article 64.04; and (2) the trial court erred in finding that had the DNA results
been available during appellant’s trial it was not reasonably probable that he would
not have been convicted. In response, the State argues that (1) the trial court
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complied with Article 64.04 by holding a hearing on the post-conviction DNA test
results; and (2) the trial court properly found that there was no reasonable probability
the DNA test results would have led to appellant’s acquittal had they been available
during his trial.
II. STANDARD OF REVIEW
We apply a bifurcated standard of review of a trial court’s findings under
article 64.04, affording almost total deference to the trial court’s resolution of
historical facts and mixed questions of law and fact that turn on determinations of
witness credibility and demeanor but reviewing de novo questions of law and mixed
questions of fact that do not turn on credibility and demeanor determinations.
Dunning v. State, 572 S.W.3d 685, 692 (Tex. Crim. App. 2019). We review the trial
court’s finding in this case de novo because it does not turn on witness credibility or
demeanor determinations. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.
2002).
III. DISCUSSION
A. Whether the trial court failed to hold a hearing under Article 64.04
In his first issue, appellant contends the trial court erred in failing to hold a
hearing under Article 64.04. Article 64.04 provides that “[a]fter examining the
results of testing under Article 64.03, the convicting court shall hold a hearing and
make a finding as to whether, had the results been available during the trial of the
offense, it is reasonably probable that the person would not have been convicted.”
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TEX. CODE CRIM. PROC. ANN. art. 64.04. Appellant states that the trial court failed
to hold a hearing on the results as required by statute. Specifically, appellant argues
that the failure to hold a hearing deprived him of the opportunity to cross-examine
the DPS analyst who conducted the testing and to present objections to the test
results or reasons for the court to consider the results as favorable to appellant’s
claim. He further argues that he was deprived of any opportunity to explain to the
court why his guilty plea was inaccurate or unreliable. However, the reporter’s
supplemental record shows that the trial court did hold an article 64.04 hearing on
April 29, 2021, via Zoom, and that both the State and appellant’s counsel attended.
At the hearing, the court provided appellant’s counsel the opportunity to present
evidence or challenge the State’s evidence or arguments. Instead, appellant’s
counsel stated:
I would agree with everything that State’s counsel has stated about the
case and the testing so far. We have not been able to discover any
additional newly discovered evidence that would support any other
identification of the actual perpetrator, if there was one.
So we have not been able to find or develop any evidence that would
lead to an alternative suspect that we could argue would elevate this
evidence to the necessary level to meet the burden coming forth that
this would be exculpatory.
So we are in agreement that this is not exculpatory because it does
include, potentially, Mr. Ambrose as a perpetrator in this testing.
When asked if either side had anything further or any questions for the court,
appellant’s counsel responded that he did not. Because appellant did in fact have an
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opportunity to present evidence and argument to the trial court regarding the test
results or to object to the State’s evidence and did not do so, we overrule appellant’s
first issue. See TEX. R. APP. P. 33.1(a)(1)(A).
B. Whether the trial court erred in finding no reasonable probability that the
DNA results would have led to appellant’s acquittal
In his second issue, appellant contends the trial court erred in finding that had
the DNA results been available before his trial, he likely would not have pleaded
guilty and would have been acquitted at trial because the results did not corroborate
the allegations of vaginal penetration or establish him as the perpetrator of the assault
“to the exclusion of anyone else.” However, we must first examine whether
appellant preserved his complaint for appellate review.
To preserve error for appellate review, an appellant must show that he
objected in the trial court and that his objection “stated the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were
apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); Clark v. State, 365
S.W.3d 333, 339 (Tex. Crim. App. 2012). The issue on appeal must comport with
the objection made at trial. Id. (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex.
Crim. App. 1986).
The objecting party must “let the trial judge know what he wants, why he
thinks he is entitled to it, and to do so clearly enough for the judge to understand him
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at a time when the judge is in the proper position to do something about it.” Pena v.
State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992)). In determining whether an argument on
appeal comports with an objection made at trial, we look to the context of the
objection and the shared understanding of the parties at the time. Lankston, 827
S.W.2d at 911. A trial court’s ruling will not be reversed based on a legal theory
that the complaining party did not present to the court. State v. Story, 445 S.W.3d
729, 732 (Tex. Crim. App. 2014) (citing Hailey v. State, 87 S.W.3d 118, 122 (Tex.
Crim. App. 2002)).
As noted above, appellant’s counsel attended the article 64.04 hearing on
April 29, 2021. At that hearing, the State argued that the results of the testing were
not exculpatory as to appellant, and that, in fact, appellant could not be excluded as
a contributor to the male DNA sample found on the oral swab. In response,
appellant’s counsel agreed with the State’s arguments as we have quoted above.
Based upon the statements of counsel and the findings in the reports, the court then
signed the order finding that there was no reasonable probability that appellant
would not have been convicted. He did not object to the contents of the report. He
did not object to the court’s findings. He did not ask for or receive rulings. Instead,
appellant agreed with the State’s (and ultimately the trial court’s) conclusions
regarding the import of the DNA test results. Therefore, we hold appellant did not
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preserve his complaint on this issue for appellate review. TEX. R. APP. P.
33.1(a)(1)(A); Clark, 365 S.W.3d at 339.
However, even if appellant had preserved the issue for appeal, the trial court
did not err in finding it was not reasonably probable that appellant would not have
been convicted in light of the new DNA test results because the results contained no
exculpatory evidence, and in fact, contained new inculpatory evidence that supports
the complainant’s assertions that appellant kissed her on the mouth and put his hand
over her mouth during the alleged sexual assault. See Ex parte Gutierrez, 337
S.W.3d 883, 892 (Tex. Crim. App. 2001) (to create a reasonable probability of
acquittal, the DNA results must “affirmatively cast doubt upon the validity of the
inmate’s conviction” and not merely “muddy the waters”). We overrule appellant’s
second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
/Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220132F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANGEL AMBROSE, Appellant On Appeal from the Criminal District
Court No. 6, Dallas County, Texas
No. 05-22-00132-CR V. Trial Court Cause No. F10-59769-X.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Breedlove. Justices Molberg and
Reichek participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered April 21, 2023
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