Corina Lam Lopez v. the State of Texas ( 2024 )

NUMBER 13-23-00121-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CORINA LAM LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 105TH DISTRICT COURT
OF KLEBERG COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva
Memorandum Opinion by Justice Benavides
In 2012, appellant Corina Lam Lopez was convicted of capital murder, and this
Court affirmed her conviction the following year. Lopez v. State, No. 13-12-00230-CR,
2013 WL 6211457 (Tex. App.—Corpus Christi–Edinburg Nov. 26, 2013, pet. ref’d) (mem.
op., not designated for publication). This appeal concerns the denial of her motion for
post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (“Chapter 64”).
By a single issue, Lopez contends that she is entitled to relief under Chapter 64. We
affirm.
I. BACKGROUND
In the early morning hours of December 7, 2005, someone broke into Susan
Rousseau’s home and bludgeoned her to death with a wooden baseball bat.
A. Investigation
In addition to signs of a forced entry, police discovered that the phone line to
Rousseau’s home had been severed. Their attention quickly turned to Lopez. In the
months leading up to the murder, Lopez had sent Rousseau two threatening letters, and
a witness observed Lopez drive by Rousseau’s trailer home on several occasions during
that period. The source of contention was Rousseau’s new boyfriend, Oscar Peña, whom
Lopez had previously dated for approximately ten years. In one of the letters, Lopez told
Rousseau to stop seeing Peña, and if Rousseau complied, she would be “left alone.” Out
of concern for her safety, Rousseau relocated her trailer within the park and asked the
manager of the park to “keep an eye on her RV.”
In an initial interview with police, Lopez denied being anywhere near the trailer
park on the night of the murder. She consented to a search of her vehicle, cell phone,
and apartment. The search of the cell phone revealed that, on the night of the murder,
beginning at 11:35 p.m. and ending at 1:45 a.m., several calls were made between Lopez
and someone listed in her phone as “George.” Lopez told police that “George” was merely
someone interested in buying Peña’s Chevrolet Camaro and that he had left town with
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her daughter Amanda before the murder.
During the search of her apartment, police found a Wal-Mart receipt with a
timestamp of 11:59 p.m. from December 6, 2005. The police reviewed surveillance video
from the Wal-Mart that night and observed someone they identified as Lopez wearing a
black hooded sweatshirt inside the store with an unidentified male. Lopez had previously
told police that she had gone to Wal-Mart alone that night.
Over the course of the next two months, an anonymous female called the local
Crimestoppers line several times and identified “Ricky Segura” as the perpetrator, saying
in the first call, made only one day after the murder, that Segura beat Rousseau with a
baseball bat. Virginia Rowley fielded each of these calls, and when police asked her to
compare the voice of the caller to a tape recording of Lopez’s voice, Rowley said the two
voices were similar. When the anonymous tipster called a sixth time, police instructed
Rowley to keep the caller on the phone while they drove by known pay phones in the
area. The police found Lopez at a payphone and Rowley on the other end of the line.
Police were never able to locate anyone in the area named “Ricky Segura.”
Police eventually obtained a copy of Lopez’s cell phone records, and the same
number listed as “George” on her cell phone was registered to George Garza. Police
compared a known photo of Garza to the surveillance video from Wal-Mart, and according
to one detective who testified at trial, there were similarities between the two subjects.
The case went cold for several years until, during a videotaped interview with police,
Garza confessed to murdering Rousseau. He said that Lopez offered him a ride on the
night of the murder but conditioned the ride on him burglarizing Rousseau’s trailer—an
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arrangement Garza agreed to. He later made a written statement to the same effect.
Based on this new evidence, Lopez was arrested and indicted for capital murder.
During a subsequent interview with police, Lopez admitted to going to Wal-Mart with
Garza that night and later driving him to Rousseau’s trailer park. However, Lopez
maintained that she drove Garza to the trailer park to look for Peña because Garza, who
was her daughter’s friend, called her “constantly” on the night of Rousseau’s murder to
inquire about buying Peña’s Camaro. Lopez acknowledged that she knew Rousseau had
moved her trailer to a new location. Lopez also admitted that she knew Peña was at work
that night but said they went to look for him at the trailer park anyway. Lopez said that
having not found Peña, she dropped Garza off at a Love’s Truck Stop. After dropping
Garza off, Lopez acknowledged that she drove by Rousseau’s trailer a second time to
again look for Peña.
When asked why she did not mention Garza during her initial interview with police
several years before, Garza said she was “afraid” to tell them about Garza because her
car “smelled like alcohol.” Lopez described Garza as “all messed up” and “coked up” on
the night of Rousseau’s murder, adding that Garza “gets scary when he’s like that.”
Toward the end of the interview, Lopez admitted that Garza had told her that he and a
friend of his were “going to get stuff” at the trailer park, but he did not specify what or
where. Finally, Lopez admitted that she had wished Rousseau was dead.
B. Trial
Lopez was tried first. The State offered Garza testimonial immunity, but when he
was called as a witness, Garza invoked his Fifth Amendment Right against self-
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incrimination. His prior confessions inculpating Lopez were not admitted into evidence.
The State focused instead on the circumstantial evidence connecting Lopez to the
murder.
The State also put on scientific evidence. Although this evidence was not
particularly useful to the State, the prosecutor explained to the jury during closing
arguments that this evidence was presented to show that police had done a thorough
investigation. Lisa Harmon Baylor, a forensic scientist with the Texas Department of
Public Safety (DPS), testified that she examined approximately twenty items collected by
the police for possible DNA analysis. As pertinent here, she collected two samples from
the baseball bat believed to be the murder weapon. Sample A was consistent with
Rousseau’s DNA profile, and sample B, taken from the handle of the bat, contained an
“interpretable DNA profile.” Baylor also tested a swab taken from Rousseau’s fingernails.
According to Baylor, “the DNA profile obtained from that was consistent with a mixture,”
and Rousseau could not “be excluded as a contributor to that sample.” Baylor also
examined a black hooded sweatshirt seized from Lopez’s home. This sweatshirt matched
the sweatshirt worn by the female believed to be Lopez in the Wal-Mart security footage.
Baylor did not detect any blood stains on the sweatshirt for testing, “but trace tapings
were collected and packaged back with the evidence.” Baylor explained that a “trace
taping” means the collection of “any transfer of possible hair, fibers, anything that would
be trace evidence that you could link back to an individual.” Baylor also tested a small,
“red-colored stain” on a gray t-shirt collected from Lopez’s home. The result was negative
for biological material. Baylor summarized her findings by agreeing that she did not find
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Lopez’s DNA on any of the items collected at the crime scene, nor did she find
Rousseau’s DNA on any of the items collected from Lopez’s place.
Another forensic scientist with DPS, Sandy Parent, testified that she
microscopically compared hairs recovered from the crime scene (found in Rousseau’s
left hand) and various items of Lopez’s clothing (gray t-shirt, hair scrunchie, jogging pants,
black hooded sweatshirt, and a pair of socks) with known samples from the heads of both
individuals. Parent explained that this type of comparison has limitations; she can
determine whether two samples share similar characteristics, but she cannot say with
certainty that similar samples came from the same person. In such a case, “all we can
say is that it could have come from that individual or any other individual that may have
the same type of characteristics.” Parent determined that the hairs recovered from
Rousseau’s hand were not similar to Lopez’s hair and may have come from Rousseau
herself. As far as the samples taken from Lopez’s clothing, Parent did not find any head
hairs for comparison.
The jury was instructed on both an intent-to-promote-or-assist theory of party
liability and a conspiracy theory of party liability. See TEX. PENAL CODE ANN. §§ 7.02(a)(2)
(providing that a person is criminally responsible for an offense committed by the conduct
of another if, “acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense”), 7.02(b) (“If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators are guilty of the
felony actually committed, though having no intent to commit it, if the offense was
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committed in furtherance of the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the conspiracy.”). The jury returned a guilty
verdict, and Lopez was sentenced to life in prison.
C. Direct Appeal
In affirming Lopez’s conviction, we held that, under a hypothetically correct jury
charge, the evidence was sufficient to support her conviction under either theory of party
liability. Lopez, 2013 WL 6211457, at *11–13.
D. Chapter 64 Motion
In 2020, Lopez filed her initial motion seeking to test the strands of hair found in
Rousseau’s hand and the black hooded sweatshirt seized from Lopez’s home. Lopez also
sought to re-test sample B from the baseball bat using new forensic techniques and to
have the unidentified DNA profile detected from Rousseau’s fingernail scrapings
compared against the DNA profile of Lopez’s daughter Amanda. Lopez later
supplemented her motion asking for additional items to be tested: three items of clothing
worn by Rousseau at the time of the murder, the cut telephone wire near Rousseau’s
trailer, a piece of foam found inside Rousseau’s trailer, and a blue shirt that was found
propping open the door to Rousseau’s home. The thrust of Lopez’s motion was that
Amanda committed the murder with Garza; therefore, Amanda’s DNA profile would be on
the black hooded sweatshirt worn by the female in the Wal-Mart security footage, and
Amanda’s DNA profile was the unidentified DNA profile found in the scrapings from
Rousseau’s fingernails. In support of the motion, Lopez submitted the affidavit of a
forensic expert who explained the advancements in forensic DNA testing since the items
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were originally tested and how testing those items now could yield probative results. The
expert testified similarly at the hearing. For example, she testified that the black hooded
sweatshirt may contain skin cells that were transferred by the person wearing it on the
night of the murder. The trial court denied the motion, and this appeal ensued.
II. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s decision to deny a motion for post-conviction DNA testing
under a bifurcated standard of review. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim.
App. 2017). Under this standard, we afford almost total deference to a trial court’s
determination of issues of historical fact and its application of the law to fact issues that
turn on determinations of witness credibility and demeanor, but we review de novo the
trial court’s application of the law to fact issues that do not turn on determinations of
witness credibility and demeanor. Id. at 768–69. Accordingly, when the trial court relies
exclusively on the trial record and affidavits submitted by the parties, the trial court is in
no better position than we are to make its decision, and we review the denial of the motion
de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). “If the trial
court’s decision is correct under any theory of law applicable to the case, we will sustain
it.” Evans v. State, 628 S.W.3d 358, 362–63 (Tex. App.—Fort Worth 2021, no pet.) (citing
State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000)); see also Scott v. State,
No. 14-08-01060-CR, 2010 WL 1236320, at *1 n.2 (Tex. App.—Houston [14th Dist.] Apr.
1, 2010, pet. ref’d) (mem. op., not designated for publication).
To be entitled to post-conviction DNA testing, a convicted person must satisfy the
requirements of Chapter 64. See TEX. CODE CRIM. PROC. ANN. art. 64.03. As a threshold
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matter, the convicted person must first establish that the evidence sought to be tested
“still exists and is in a condition making DNA testing possible.” Id. art. 64.03(a)(1)(A)(i).
The trial court must also be satisfied that the evidence “has been subjected to a chain of
custody sufficient to establish that it has not been substituted, tampered with, replaced,
or altered in any material respect.” Id. art. 64.03(a)(1)(A)(ii). Additionally, there must be
“a reasonable likelihood that the evidence contains biological material suitable for DNA
testing.” Id. art. 64.03(a)(1)(B). This includes items in the State’s possession that contain
“blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids,
or other identifiable biological evidence that may be suitable for forensic DNA testing.” Id.art. 64.01(a)(1). Chapter 64 relief is only available if “identity was or is an issue in the
case.” Id. art. 64.03(a)(1)(C).
Once these elements have been satisfied, the convicted person must then
establish by a preponderance of the evidence that she would not have been convicted if
exculpatory results had been obtained through DNA testing. Id. art. 64.03(a)(2)(A). “This
means that a convicted person must show a greater than 50% chance that he would not
have been convicted if exculpatory results from the requested DNA testing had been
available at trial.” Hall v. State, 569 S.W.3d 646, 655 (Tex. Crim. App. 2019) (citing Reed,
541 S.W.3d at 774). Generally, an exculpatory result is one that excludes the convicted
person as the donor of the DNA. Id. at 655–56 (citing Reed, 541 S.W.3d at 774). For
purposes of our review, we assume that the results would be favorable to the appellant.
Reed, 541 S.W.3d at 774.
“In considering the likelihood of conviction, we limit our review to whether
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exculpatory results would alter the landscape of evidence at trial, and we do not consider
post-trial factual developments.” Hall, 569 S.W.3d at 656 (citing Reed, 541 S.W.3d at
774). Exculpatory results that merely “muddy the [evidentiary] waters” are not sufficient.
Ex parte Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011) (quoting Rivera v. State,
89 S.W.3d 55, 59 (Tex. Crim. App. 2002)). “Whether the DNA of a third party would
establish a greater than 50% chance that the defendant would not have been convicted
depends on the circumstances of the case.” Hall, 569 S.W.3d at 656. In some cases, “the
presence of a third party’s DNA may not have any tendency to exonerate the defendant
from the crime.” Id. “On the other hand, under some circumstances, the presence of DNA
from a third party is so strongly exonerating that the convicted person’s burden will be
met despite the existence of other substantial inculpatory evidence.” Id. For example, the
presence of a third party’s DNA will overcome substantial inculpatory evidence “when it
is clear that the biological material in question was left by a lone assailant.” Id. at 657;
see, e.g., Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (“In sexual
assault cases like this [one with a lone assailant], any overwhelming eye-witness
identification and strong circumstantial evidence . . . supporting guilt is inconsequential
when assessing whether a convicted person has sufficiently alleged that exculpatory DNA
evidence would prove his innocence under Article 64.03(a)(2)(A).”).
III. THE RECORD
As a preliminary matter, the parties disagree about which portions of the appellate
record are properly before us. The record in this appeal is extensive. It includes each
transcript from Lopez’s and Garza’s separate trials, as well as certain exhibits admitted
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at each trial. Lopez contends that we should not consider the record from Garza’s trial
because his trial occurred after hers and included evidence that was not admitted at her
trial; namely, Garza’s confessions implicating Lopez. According to Lopez, Garza’s
confessions were post-trial factual developments because they were not part of “the mix
of evidence that was available at the time of [her] trial.” See Holberg v. State, 425 S.W.3d
282, 285 (Tex. Crim. App. 2014).
The State responds that Lopez waived any complaint about the contents of the
appellate record. Alternatively, the State argues that Garza’s confessions cannot be post-
trial factual developments because they occurred before Lopez’s trial. According to the
State, the fact that Garza’s confessions were neither admitted nor admissible at Lopez’s
trial1 did not preclude the trial court (or us) from considering them in deciding Lopez’s
entitlement to relief under Chapter 64. See Ex parte Gutierrez, 337 S.W.3d at 893–94
(holding that written statements by appellant’s accomplices made prior to appellant’s trial
were properly before the trial court and explaining that “the constitution does not bar a
judge from considering statements that were (or should have been) inadmissible at trial”
because a proceeding under Chapter 64 “is an independent, collateral inquiry into the
validity of the conviction, in which exclusionary rules have no place, and there are no
constitutional considerations”). We agree with the State that Lopez has waived any
objection about the contents of the appellate record.
1 Garza’s confessions were not admissible because Garza refused to testify at Lopez’s trial, and
admitting his confessions would have violated Lopez’s right to confront her accuser. See Hale v. State, 139
S.W.3d 418, 421–22 (Tex. App.—Fort Worth 2004, no pet.) (“The admission of a testimonial statement by
an accomplice or codefendant as evidence of guilt of the defendant on trial, absent opportunity by the
defendant to cross examine the declarant, is ‘sufficient to make out a violation of the Sixth Amendment.’”
(quoting Crawford v. Washington, 541 U.S. 36, 68 (2004))).
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In back-and-forth filings leading up to the hearing, the parties disputed whether
evidence presented at Garza’s trial was relevant to Lopez’s motion. The State had
attached portions of the trial transcript from Garza’s trial and asked the trial court to take
judicial notice of his entire trial record, including Garza’s videotaped and written
confessions implicating Lopez in the murder. Through successive filings, Lopez argued,
as she does on appeal, that any evidence admitted at Garza’s trial that was not admitted
at her trial, including Garza’s confessions, should not be considered because Garza’s trial
occurred several months after hers.
At the beginning of the hearing on Lopez’s motion, however, the State asked the
trial court “to take judicial notice of the contents of both George Garza and Corina Lam
Lopez’s trial files and appellate files,” as well as the attachments to the State’s responsive
filings, which included portions of the trial transcript from Garza’s trial. When the trial court
affirmed that it would “take judicial notice” of those items, Lopez’s counsel responded,
“[W]e have no objection to judicial notice of everything that the State’s offered.” At no
point in the hearing did Lopez reiterate her prior position that it would be inappropriate for
the trial court to consider the record from Garza’s trial.
To preserve a complaint for appellate review, a party must make a timely request,
objection, or motion with sufficient specificity to apprise the trial court of the complaint.
TEX. R. APP. P. 33.1(a). Courts have likened Chapter 64 proceedings to habeas corpus
proceedings. Thompson v. State, 123 S.W.3d 781, 784 (Tex. App.—Houston [14th Dist.]
2003, pet. ref’d) (citing Cravin v. State, 95 S.W.3d 506, 509–10 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d)). In a habeas proceeding, “[t]he usual method for making a
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document from an earlier case part of the record of the current case is to introduce the
document and have it admitted into evidence.” Kaman v. State, 923 S.W.2d 129, 131
(Tex. App.—Houston [1st] 1996, no pet.). “An alternate method to include a document
from an earlier case in the record is to request the trial court to take judicial notice of the
document.” Id. (citing TEX. R. EVID. 201). Therefore, when the State asked the trial court
to take judicial notice of Garza’s entire trial record, including his confessions, it was
incumbent upon Lopez to object and obtain a ruling.2 See TEX. R. APP. P. 33.1(a); Arevalo
v. State, 675 S.W.3d 833, 845 (Tex. App.—Eastland 2023, no pet.) (explaining that
“absent the trial court granting Appellant a specific running objection, Appellant was
required to timely and properly object to the admission of the evidence each time it was
offered at trial in order to preserve his arguments and complaints for appellate review”).
Instead, her counsel said he had “no objection.” As such, Lopez cannot now complain on
appeal that we should not consider the record from Garza’s trial. See TEX. R. APP. P.
33.1(a); see also Collier v. State, No. 14-03-00498-CR, 2004 WL 582888, at *2 (Tex.
App.—Houston [14th Dist.] Mar. 25, 2004, pet. ref’d) (mem. op., not designated for
publication) (holding that, by failing to raise a timely objection, appellant waived complaint
about affidavits attached to State’s opposition to motion for DNA testing); Johnson v.
State, No. 14-02-00663-CR, 2003 WL 1988593, at *1 (Tex. App.—Houston [14th Dist.]
May 1, 2003, no pet.) (not designated for publication) (holding that appellant waived
complaint about the propriety of affidavits offered by the State during a Chapter 64 hearing
2 We think the better practice is to attach the relevant portions of the record to a filing or offer them
as evidence during the hearing.
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because appellant’s counsel stated that he had “no objection” when they were offered).
Regardless, as we explain below, the inclusion of Garza’s confessions is not outcome
determinative in this appeal.
IV. ANALYSIS
On appeal, the State does not contest that the evidence identified by Lopez is
available, contains biological material, and is suitable for testing. Rather, the parties
dispute whether Lopez satisfied her burden to establish by a preponderance of the
evidence that she would not have been convicted if exculpatory results had been
obtained. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). Echoing her arguments in
the trial court, Lopez maintains that the evidence against her was “thin” and
circumstantial. She contends that the items to be tested will place Amanda with Garza at
the crime scene, and in doing so, cast sufficient doubt on her own guilt.
Lopez also contends that the sweatshirt worn by the woman depicted in the Wal-
Mart security footage will contain Amanda’s DNA, thereby proving that Amanda, not
Lopez, was with Garza shortly before the murder. Despite her admission that she was at
the Wal-Mart with Garza on the night of the murder, Lopez contends that the woman in
the security video is actually her daughter. As proof, she asserts that the woman in the
video looks much younger than Lopez, who was forty-three years old at the time. Along
with other exhibits attached to her motion, Lopez provided stills from the video and a mug
shot of Lopez taken on December 16, 2005, for comparison.
But as she acknowledges in her brief, “no one thought that Lopez actually beat
Rousseau to death.” Indeed, that was not the State’s theory of the case. Rather, the State
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argued, among other theories, that Lopez was criminally responsible for Rousseau’s
murder under the law of parties because she directed and assisted Garza in burgling
Rousseau’s home. In confirming her conviction, we held that the evidence was legally
sufficient to prove that Lopez conspired with Garza to burgle Rousseau’s trailer; during
the commission of the burglary, Garza murdered Rousseau in furtherance of the
conspiracy; and the murder should have been anticipated by Lopez under the
circumstances. Lopez, 2013 WL 6211457, at *12–13. In particular, we noted that the
evidence established the following facts: Rousseau was murdered during the commission
of a burglary at her home; Lopez had threatened and harassed Rousseau in the months
leading up to the murder; Lopez knew that Rousseau had moved her trailer to a new
location within the park; Lopez initially told police that she did not see Garza or go to the
trailer park on the night of the murder; Lopez later admitted to police that she drove Garza
to the trailer park that night; Lopez’s explanation for why she was at the trailer park with
Garza in the middle of the night was far-fetched and contradictory to other statements
she previously made; Lopez admitted that Garza told her that he was “going to get stuff”
at the trailer park that night; and Lopez intentionally misled the police by anonymously
calling Crimestoppers several times and identifying a fictitious person as the perpetrator.
Id. at *11. Contrary to Lopez’s suggestion, this evidence of what occurred “before, during,
and after the commission of the offense” was strong circumstantial evidence of her guilt
as a party to the offense. See Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App.
2012) (quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)); Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“Circumstantial evidence is as
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probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.”); Hall, 569 S.W.3d at 656 (noting that
“even when the presence of a third party’s DNA may tend to be exonerating, the convicted
person’s burden will not be satisfied ‘if the record contains other substantial evidence of
guilt independent of that for which the movant seeks DNA testing’” (quoting Swearingen
v. State, 303 S.W.3d 728, 736 (Tex. Crim. App. 2010))).
More importantly, even if Lopez is correct and some of the evidence to be tested
places her daughter at the crime scene with Garza, that fact alone would not undermine
Lopez’s role in the murder as a conspirator. As Lopez acknowledges in her brief, there
was no evidence presented at trial that placed her inside Rousseau’s trailer; instead, the
State argued, among other theories, that Lopez conspired with Garza to burglarize
Rousseau’s home by suggesting the idea and driving Garza to the location. See Ex parte
Gutierrez, 337 S.W.3d at 900 (concluding that exculpatory results from evidence taken at
the crime scene “would not make it less probable that appellant ‘planned the ripoff’ and
was a party to Mrs. Harrison’s murder”). Likewise, the presence of Amanda’s DNA on the
sweatshirt found at Lopez’s home would not be exculpatory because Amanda could have
worn the sweatshirt before or after the night in question. See Hall, 569 S.W.3d at 658(“Touch DNA poses special problems because . . . ‘touch DNA analysis cannot determine
when an epithelial cell was deposited.’” (quoting Reed, 541 S.W.3d at 777)). This would
be true even if Lopez’s DNA was not present on the sweatshirt. See Rivera, 89 S.W.3d
at 60 n.20 (“[T]he absence of appellant’s DNA would not indicate innocence because it
could simply mean none was deposited.”). Additionally, Lopez admitted to police that she
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was at the Wal-Mart with Garza and drove him to the crime scene, further undermining
the significance of possibly finding Amanda’s DNA on the sweatshirt. But even if Lopez
is correct, and the video depicts Amanda inside the Wal-Mart with Garza, that would only
prove that Amanda was with Lopez and Garza on the night of the murder. For instance,
Lopez could have simply waited in the car while Amanda and Garza went inside the store.
In any event, the fact that Lopez’s daughter may have also participated in the murder
would have no bearing on Lopez’s conviction in this case as a conspirator. See Ex parte
Gutierrez, 337 S.W.3d at 900; Hall, 569 S.W.3d at 656.
We conclude that Lopez failed to carry her burden to prove by a preponderance of
the evidence that she would not have been convicted if exculpatory results had been
obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). Her
sole issue is overruled.
V. CONCLUSION
We affirm the order denying Lopez’s motion for post-conviction DNA testing.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
5th day of July, 2024.
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