### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00750- CR

In re Charles Raym ond L ee, Jr .

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 03- 798- K2 77, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Charles Ray

mond L ee was convicted of two counts of ag g ravated sexual assault and sentenc ed to life imprisonment. The convictions wer e aff irmed on appea l. Lee v. State , No. 03-05- 00211-CR, 2006 Tex. App. L EXI S 4330 (Tex. App.—Austin May 19, 2006, no pet.) (mem. op., not desig nated for publication). L ee now ap p ea l s t h e district court’s order s denying his motions for fore nsic DNA testing and for appointed counsel. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2010). We affirm.

At L ee’ s trial, the complainant testified that a man with a bandanna cover ing his fac e enter ed her apar

tment throug h a sliding g lass door and sexually assaulted her at g unpoint. The man penetr ated her sexual org an with his penis (count one) and contac ted her sexual org an with his mouth (count two). Following the assault, the man forc ed the complainant to take a shower in an appar ent eff ort to eliminate biologic al evidenc e. Ne verthe less, semen wa s rec overe d from the c omplainantduring the sexual assault examination, and DNA testing indicated that the semen was appellant’ s. 1

Appellant, who repr esente d himself at the trial, told the jury in both his opening st at ement and closing argument that he had consensua l sexual intercour se with the complainant. He denied having oral sex. In his chapter 64 motion, appellant asked the court to order testing of the swabs

co l l ec t ed during the sexual assault examination for the prese nce of saliva. He argued that the absenc e of saliva would prove that he was not g uilty of the assault alleg ed in count two. The court denied the motion, finding that: (1) appellant failed to establish that the evidenc e was not previously subjected to DNA testing throug h no fault of his own; (2) appellant’ s identity was not an issue in the

case ; and (3) appellant did not establish by a preponde ranc e of the evidenc e that he would not have been convicted h ad ex cu l p atory results been obtained. See Tex. Code Crim. Proc. Ann. arts. 64.01(b)( 1)(B ), 64.03(a) (1)( B) , (2)( A) (West Supp. 2010). Appellant bring s forwa rd a point of err or challeng ing eac h of these finding s. In our revie w, we g ive almost total defe renc e to the trial court’s finding s of historical fac t and its resolution of mix ed questions of law and fac t that turn on witness

cre dibilit y and demea

nor, but we re v i ew al l other leg al questions de novo. Routier v. State , 273 S.W .3d 241, 246 (Tex. Crim. App. 2008).

A defe ndant can make identity an issue in the case by showing that DNA tests would prove his innocenc e. Esparza v. State , 282 S.W .3d 913, 922 (Tex. Crim. App. 2009); Blackloc k v. State , 235 S.W .3d 231, 233 (Tex. Crim. App. 2007). But if DNA testing would not de termine the

The State’s expert testified that the probability of selec ting an unrela ted person at random who 1 could be a contributor to the sperm cell fra ct i o n was approximately one in 447,400 for black Americ ans. The r ecor d shows that appellant is blac k. 2identity of the person who committed the offe nse or would not exculpate the person convicted, then

these re quirements ar e not met. Pribble v. State , 245 S.W .3d 466, 470 (Tex. Crim. App. 2008).

Given the results of the DNA testing that was perf ormed an d ap p ell ant’s own admissions during the trial, there is no issue as to appellant’ s identity as the man who penetr ated the complainant with his penis as alleg ed in c ount one
. An absenc e of saliva on the swabs would not be ex culpatory as t o the oral sex count because the attacke r would not nece ssarily have le ft saliva

on the complainant’s body and beca use the complainant was forc ed to shower afte r the assault. The

rec ord supports the district court’s f indings that identit y was not an is sue and that appellant failed to show that he would not have been convicted on count two if exculpatory results had been obtained throug h DNA testing. Points of err or two and three ar e o v err uled. We need not addre ss point of

err or one. A t rial court mu s t ap p o i nt counsel to assist a defenda nt in a chapter 64 proce eding if t here are rea sonable g rounds for a testing motion to be filed. Tex. Code Crim. Proc. Ann. art. 6 4
. 01(c)

. Reasonable g rounds are prese nt when the fac ts stated in the reque st for co u n s el o r otherwise known to the trial court rea sonably sug g est that a valid or viable arg ument for testing can be made. Ex parte Gutierrez , 3 3 7 S
. W
. 3 d 8 8 3 , 891 (Tex. Crim. App. 2011). Given the bare alleg ations in appellant’ s motion and the state of the rec ord, we hold that the trial court did not abuse its discretion by concluding that rea sonable g rounds wer e not shown in this case . Point of err or four is overrule d.

3The orders o v er ru l ing L ee’ s motions for counsel and fore nsic DNA testing are

aff irmed.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: August 11, 2011 Do Not Publish

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