Bobby Cate v. State ( 2010 )

NO. 07-10-0256-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 26, 2010
BOBBY J. CATE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-436,240; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING
Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Bobby J. Cate appeals an order determining that, had the results of DNA testing
been available during his trial for aggravated sexual assault, it is not reasonably
probable that he would not have been convicted. We affirm the order.
Background
In 2002, appellant was convicted of raping a woman he approached in the
parking lot of a shopping mall in Lubbock and who offered to give him a ride in her
vehicle. That conviction was based primarily on the victim’s identification of appellant.
In other words, there was no forensic evidence offered to support the verdict.
In 2004, appellant filed a motion for DNA testing of hair samples found in the
victim’s car. One of the hair samples found in the vehicle was confirmed to belong to
John Walter Hamilton. After testing, the trial court held a hearing in accordance with
art. 64.04 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 64.04
(Vernon 2006) (requiring that after examining the results of testing, the convicting court
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). At the conclusion of an evidentiary hearing, the trial court ruled against
appellant.
Discussion
We review the trial court’s order to determine whether the DNA test results
create a probability of innocence sufficient to undermine confidence in the outcome of
the trial. Fuentes v. State, 128 S.W.3d 786, 787 (Tex. App.–Amarillo 2004, pet. ref’d).
While there may be subsidiary fact issues which we review deferentially, Johnson v.
State, 183 S.W.3d 515, 519-20 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d, untimely
filed), the ultimate question is one of law which we review de novo. Fuentes v. State,
128 S.W.3d at 787; see also Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
Appellant argues that because the hair fibers of Hamilton were found in the
victim’s vehicle where the rape occurred and because Hamilton fits the general
description the victim provided of her assailant, i.e. white male, six feet, 160 pounds,
2
late thirties to early forties, brown hair, beard, and mustache, and blue or green eyes,1
there is a reasonable probability he would not have been convicted had that particular
evidence been available at trial. Yet, the record suggests that a witness during
appellant’s original trial indicated that hairs belonging to someone other than appellant
were found in the vehicle. Indeed, more than eighty hairs with various characteristics
were found and at least forty of them were dissimilar to appellant’s hair. So, the theory
underlying appellant’s current attack upon his conviction was proffered to the jury before
it decided to convict him.
Simply put, the DNA evidence does not exclude appellant as the assailant but
merely tends to place someone with the same general physical characteristics as
appellant (Hamilton) in the vehicle at some time or another. That Hamilton lived in
Midland (as opposed to Lubbock where the assault occurred), that the assault victim
acquired the vehicle from an individual living in Midland, that both the latter and
Hamilton were acquaintances, and that Hamilton admitted to using the vehicle as the
locus of a sexual rendevous in Midland with his girlfriend at one time could reasonably
explain how the hair came to be in the vehicle. At the very least, it provides little to no
logical basis to replace appellant with Hamilton at the scene of the assault in Lubbock.
More needed to be presented before such could occur.
It must also be remembered that the victim was quite certain of her identification
of appellant as her attacker. Moreover, she so identified him in three different photo
arrays. As previously held by us in Cate v. State, 124 S.W.3d 922 (Tex. App.–Amarillo
2004, pet. ref’d), such testimony was sufficient to support his conviction. Id. at 928-29.
1
Appellant was actually forty-four and had brown eyes.
3
This is of import for authority tells us that a reasonable probability of innocence does not
exist if there is sufficient evidence, independent of the DNA evidence in question, to
establish the appellant’s guilt. Johnson v. State, 183 S.W.3d at 520.
Inconclusive evidence does not make innocence more or less probable. Baggett
v. State, 110 S.W.3d 704, 707 n.1 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d); see
also Booker v. State, 155 S.W.3d 259, 266-67 (Tex. App.–Dallas 2004, no pet.) (finding
no reasonable probability of innocence because the testing did not exclude appellant as
the culprit); Fuentes v. State, 128 S.W.3d at 787 (noting, among other things, that the
testing failed to exclude appellant as the assailant); Eubanks v. State, 113 S.W.3d 562,
566 (Tex. App.–Dallas 2003, no pet.) (casting doubt is not enough to meet the burden to
show a reasonable probability of one’s innocence). The DNA evidence at bar falls
within that realm; it is inconclusive. So too does it touch upon a defense presented to
and apparently rejected by the jury that convicted appellant. Consequently, we overrule
the issue before us and affirm the trial court’s order.
Brian Quinn
Chief Justice
Publish.
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