John Wayne Bates v. the State of Texas

Affirmed and Memorandum Opinion filed September 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00342-CR
JOHN WAYNE BATES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 90-CR-0288
MEMORANDUM OPINION
Appellant appeals from the trial court’s denial of his fifth motion for
post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art 64.05
(authorizing appeal). He argues the trial court erred because technology has
advanced since the time of his trial and the State should have been required to
produce, for further testing, items which he believes in good faith should contain
DNA evidence based on the facts and circumstances of the allegation against him.
We affirm the order of the trial court.
I. BACKGROUND
In May 1990, appellant was convicted of aggravated sexual assault of a
child, and his punishment was assessed at confinement for life. See Tex. Penal
Code Ann. § 22.021 (aggravated sexual assault). His conviction was affirmed on
appeal. See Bates v. State, No. 01-90-00809-CR, 1992 WL 76400 (Tex. App.—
Houston [1st Dist.] Apr. 16, 1992, pet. ref’d) (not designated for publication).
In July 2001, after the legislature enacted Code of Criminal Procedure
chapter 64 allowing motions for post-conviction DNA testing, appellant filed a
motion seeking the testing of hairs taken from the complainant and him. See Tex.
Code Crim. Proc. Ann. arts. 64.01–.05. The trial court appointed counsel for
appellant, heard evidence, and then denied appellant’s motion. The trial court’s
order stated that appellant had not shown there was a reasonable probability that
appellant would not have been convicted if exculpatory results had been sustained
through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (stating
applicant for DNA testing must establish that “the person would not have been
convicted if exculpatory results had been obtained through DNA testing”).
Appellant appealed the trial court’s denial of his first motion for DNA
testing. The First Court of Appeals affirmed the trial court’s order, holding
“appellant has not proved by a preponderance of the evidence that a reasonable
probability exists that he would have been convicted if he were permitted to
conduct DNA testing.” See Bates v. State, 177 S.W.3d 451, 452–53 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d) (No. 01-04-00033-CR). The court noted an
outcry witness, the complainant’s aunt, testified that she had walked in on the
complainant and appellant just after the incident had occurred and saw the
complainant crying as she sat on the couch with her panties around her ankles. Id.The witness also saw appellant behind a door, pulling up his pants. Id. The court
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considered that the State had “stipulated that the rape kit had negative results,” but
that appellant was still convicted. Id. at 454. Finally, the court described there was
“no evidence that a third person’s hair, which was not tested, was in the rape kit or
that new techniques exist for testing the same DNA evidence.” Id.In August 2007, appellant filed a second motion for DNA testing, again
seeking to have the hairs taken from the complainant and appellant tested.
Appellant also filed a motion for appointment of counsel. The trial court denied
appellant’s second motion for DNA testing, noting that the motion “fails to
establish by a preponderance of the evidence that [appellant] would not have been
convicted if exculpatory results had been obtained through DNA testing[.]” The
trial court also denied appellant’s motion requesting appointment of counsel. On
appeal the trial court’s ruling was affirmed. Bates v. State, 315 S.W.3d 598, 601
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (originally filed as No.
14-08-00448-CR, but transferred and filed as No. 01-08-00580-CR).
Appellant subsequently filed three more motions for post-conviction DNA
testing which were denied by the trial court.1 Appellant now appeals the denial of
his fifth motion, filed in 2019, seeking DNA testing of more than 37 materials
from the rape kit including clothes worn by appellant and the complainant and
hairs collected at the scene.2, 3 Although the scope of appellant’s request for testing
1
The denial of appellant’s third motion for post-conviction DNA testing was not
appealed. In 2012, appellant filed his fourth motion for post-conviction DNA test which was
denied by the trial court. Appellant appealed the denial but later dismissed his appeal. Bates v.
State, No. 14-13-00016-CR, 2013 WL 329005 (Tex. App.—Houston [14th Dist.] Jan. 29, 2013,
pet. ref’d) (not designated for publication).
2
Appellant’s motion states that he seeks to have 37 items tested. Though he does not
identify 37 items, his motion generally seeks to have the sexual assault kits for both the
complainant and appellant retested, as well as the clothing worn by the complainant and
appellant. He also seeks to obtain the physician’s medical record report and the “DPS written
report” referencing any “biological findings, analyzed data, and opinions of the [analyst].”
3
Because the First Court of Appeals heard the initial appeal and the first and second
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has changed from motion-to-motion, the justification has remained the same:
appellant wants to establish that the biological material collected from the scene
was not his.
II. ANALYSIS
In his fifth motion, appellant argued that newer, more advanced
DNA-testing technology had the potential to demonstrate that he was not the donor
of any DNA material found on the complainant, which evidence he believed might
create a reasonable doubt as to whether he committed the crime. However, the jury
that convicted appellant was aware there was no physical or DNA evidence linking
appellant to the sexual assault of the complainant. See Bates v. State, 315 S.W.3d
at 601; Bates, 177 S.W.3d at 454.
A. Applicable law
Generally, we review a trial court’s decision on a motion related to DNA
testing under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8
(Tex. Crim. App. 2004). We give almost total deference to the trial court’s
determination of historical facts and other issues supported by the record and
applications of law-to-fact as it relates to witness credibility and demeanor, but
review all other application of law-to-fact de novo. See Reed v. State, 541 S.W.3d
759, 768 (Tex. Crim. App. 2017).
Code of Criminal Procedure chapter 64 governs a convicted person’s request
for post-conviction DNA testing and contains multiple threshold requirements that
must be met before an applicant is entitled to such testing. See Tex. Code Crim.
motions for post-conviction DNA testing, we have offered to transfer the case to our sister court
under our local rules. 1st & 14th Tex. App. (Houston) Loc. R. 1.4, 1.5. The First Court of
Appeals declined the transfer due to the procedural history of the case in both the First and
Fourteenth Courts of Appeal. We therefore take judicial notice of our sister court’s records,
including the reporter’s record from the 1990 trial. See Tex. R. Evid. 201(b)(2).
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Proc. Ann. arts. 64.01–.05. The statute provides that a convicting court may order
forensic-DNA testing under this chapter only if the court finds: (1) the evidence
still exists is in a condition making DNA testing possible and has been subjected to
a chain of custody sufficient to establish that it has not been altered in any material
respect; (2) there is a reasonable likelihood that the evidence contains biological
material suitable for DNA testing; (3) identity was or is an issue in the case; (4) the
convicted person establishes by a preponderance of the evidence that the person
would not have been convicted if exculpatory results had been obtained through
DNA testing; and (5) the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration of justice. See Tex.
Code Crim. Proc. Ann. art. 64.03(a); see also Reed, 541 S.W.3d at 768. The term
“exculpatory results” has been held to mean only results that would exclude the
convicted person as the donor of the material. See State v. Swearingen, 424 S.W.3d
32, 38 (Tex. Crim. App. 2014).
For materials previously subjected to DNA testing, a movant may request
retesting if the evidence “can be subjected to testing with newer testing techniques
that provide a reasonable likelihood of results that are more accurate and probative
than the results of the previous test.”4 Tex. Code Crim. Proc. Ann. art. 64.01(b)(2);
see also Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010). The
court of criminal appeals has held that not every advance in technology will
4
The State conceded in the trial court that DNA technology has advanced considerably
since 1990 when the original forensic testing was performed in this case. In Ex parte Kussmaul,
relied on by appellant, the court of criminal appeals discussed some of the advances in
DNA-testing technology which generally allow for testing of smaller samples and provide
capability for extracting profiles from samples containing a mixture of several persons’ DNA.
548 S.W.3d 606, 635 (Tex. Crim. App. 2018). While we agree with appellant that DNA
technology has advanced considerably since 1990, the court of criminal appeals in Kussmaul did
not address a situation in which no DNA other than that of the complainant was found—the
situation we have here. See id. at 609–10 (post-conviction DNA results excluding applicants as
contributors and revealing DNA profiles of two unidentified individuals resulted in court of
criminal appeals granting habeas-corpus relief).
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provide additional testing opportunities. See Routier v. State, 273 S.W.3d 241, 248
(Tex. Crim. App. 2008). The relevant inquiry is not “whether new technology
would yield more probative results, but whether then-existing technology was
capable of yielding any probative results at all.” Swearingen, 303 S.W.3d at 734.
Generally, if “new testing will only confirm the results of the old testing, albeit
with greater accuracy . . . appellant has not shown the new testing to be more
probative[.]” See Routier, 273 S.W.3d at 250.
B. Appellant has not met his burden
In his fifth motion for post-conviction DNA testing, appellant cites Ex parte
Kussmaul and argues advances in technology are a valid reason for retesting
because DNA technology has advanced significantly in the last thirty years. 548
S.W.3d 606, 635 (Tex. Crim. App. 2018). Appellant also argues the State has
never produced certain items of clothing for testing. Finally appellant argues that
without any DNA evidence connecting him to the assault, “then [it] raises
reasonable doubt that the Offense of sexual assault happened.”5
In response, the State argues that appellant did not meet his burden. First, the
State cites trial testimony indicating that no seminal fluid or components of semen
were found on the complainant or on her clothes. The State also cites the
conclusion of our sister court that “[t]here is no evidence that a third person’s hair
. . . was in the rape kit[.]” Bates, 177 S.W.3d at 454. Finally, the State argues the
jury knew there was no physical evidence connecting appellant to the sexual
assault but convicted appellant based on the testimony of the complainant and her
aunt.
5
In his motion filed in the trial court, appellant argues that because the State alleges an
assault took place, “thus there is DNA available on a number of articles that were worn by both
the Petitioner and the alleged victim.” However, the record does not support appellant’s
assumption.
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We agree the record reflects that no seminal fluid or other biological
evidence of a contributor other than the complainant were found on the
complainant. Without biological evidence to test, further testing or retesting would
not lead to a more probative result. Appellant has not met his burden to establish
there is a reasonable likelihood that evidence exists containing biological material
suitable for DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03.
At trial, the jury heard testimony there was no DNA evidence found linking
appellant to the offense. As discussed by our sister court, this was exculpatory
evidence and yet the jury still convicted appellant. Bates, 177 S.W.3d at 454. The
jury instead convicted appellant based on testimony from the complainant and her
aunt. Because appellant has not met his burden to demonstrate (1) there is a
reasonable likelihood that the evidence contains biological material suitable for
DNA testing and (2) by a preponderance of the evidence that he would not have
been convicted if exculpatory results had been obtained through DNA testing, we
conclude the trial court did not err in denying appellant’s motion for post-
conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a).
We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the order of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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