Affirmed and Memorandum Opinion filed August 9, 2018. 

In The 

Fourteenth Court of Appeals 

NO. 14-17-00722-CR

DAMON KENDRICK DOVE, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 268th District Court 

Fort Bend County, Texas 

Trial Court Cause No. 12-DCR-061181A 

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

Pro se appellant Damon Kendrick Dove appeals the trial court’s order denying 

his post-conviction motion for DNA testing. We affirm.

I. Factual and Procedural Background 

The factual background in this case was set forth by this Court on direct appeal 

as follows: 
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. . . appellant learned that law enforcement officers considered him a 

suspect in the sexual assault. Appellant phoned Detective Jarret 

Nethery, the investigating officer, and expressed a desire to tell his 

account of the night. Nethery and Detective Marshia Cox conducted 

and recorded a noncustodial interview with appellant. A redacted 

version of the videotaped interview was played for the jury.

At the beginning of the interview the detectives explained to appellant 

that he was not under arrest and was free to leave. According to 

appellant, he and the complainant met at the pool earlier in the day and 

he gave the complainant and her brother a ride home. Appellant asked 

the complainant if she wanted to go out that night, and she agreed to go 

to a bar to watch a basketball game. Appellant and the complainant left 

the bar at approximately 9:30 p.m., drove to a subdivision near where 

both he and the complainant lived, and parked on the side of the road. 

Appellant admitted that he penetrated the complainant's vagina with his 

penis. They moved to the back seat of the car and continued until she 

urinated on herself. The complainant decided to leave; appellant 

offered to drive her home, but the complainant chose to walk home. 

Appellant stated they were parked for approximately 45 minutes, but 

the complainant never told him she did not consent to intercourse.

Dove v. State, No. 14-13-00686-CR, 2014 WL 6602421, at *2 (Tex. App.—Houston 

[14th Dist.] Nov. 20, 2014, pet. ref’d). In July 2013, a jury found appellant guilty of 

sexual assault and assessed punishment at thirty-five years’ imprisonment. This 

Court affirmed appellant’s conviction on direct appeal. Id., at *6. The Texas Court 

of Criminal Appeals refused discretionary review. 

In April 2015, appellant petitioned this Court for mandamus relief to compel 

the trial judge to grant discovery and inspection of the State’s file and evidence. We 

denied his request. In re Damon Kendrick Dove, No. 14-15-00347-CR, 2015 WL 

1928773, at *1 (Tex. App.—Houston [14th Dist.] Apr. 28, 2015, no pet.). Appellant 

also filed an application for writ of habeas corpus, which was denied by the trial 
3

court. Moreover, in April 2016, the trial court denied appellant’s motion for postconviction DNA testing. 

 On or around August 1, 2017, appellant filed a second motion for forensic 

DNA testing, presumably of a sexual assault evidence collection kit and the 

complainant’s dress. The State opposed appellant’s motion. In a reply brief, 

appellant asserted in support of his motion that “the results in the previous DNA test 

will prove whether sex was consensual or not; the proof is in the results of the (SAEE 

Kit), which the State refuses to display.” In September 2017, the trial court denied 

appellant’s motion. Appellant timely filed this appeal. 

II. Analysis 

In one issue, appellant argues that the trial court erred in denying his request 

for post-conviction DNA testing. 

A. Standard of Review and Applicable Law 

Chapter 64 of the Code of Criminal Procedure governs a convicted person’s 

request for post-conviction forensic DNA testing and contains multiple threshold 

requirements that must be met before an applicant is entitled to such testing. See, 

e.g., Tex. Code Crim. Proc. arts. 64.01–64.05. The convicted person bears the 

burden of satisfying all article 64.01 and 64.03 requirements. Wilson v. State, 185 

S.W.3d 481, 484 (Tex. Crim. App. 2006). 

 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 afford almost total deference to the trial court’s 

determination of issues of historical fact and issues of application of law to fact that 

turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55, 59 

(Tex. Crim. App. 2002). We review de novo other issues of application-of-law-to-
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fact questions that do not turn on the credibility and demeanor of witnesses. Id. 

Here, because the trial court did not conduct a live hearing, we review the trial 

court’s denial of DNA testing de novo. See Smith v. State, 165 S.W.3d 361, 363 

(Tex. Crim. App. 2005). 

B. Motion for post-conviction DNA testing. 

The purpose of post-conviction DNA testing is to provide a means through 

which a convicted person may establish his innocence by excluding himself as the 

perpetrator of the offense of which he was convicted. See Blacklock v. State, 235 

S.W.3d 231, 232–33 (Tex. Crim. App. 2007); Birdwell v. State, 276 S.W.3d 642, 

645–46 (Tex. App.—Waco 2008, pet. ref’d). A convicting court may order forensic 

DNA testing only if the statutory preconditions of Chapter 64 are met. See Holberg 

v. State, 425 S.W.3d 282, 284 (Tex. Crim. App. 2014); Bell v. State, 90 S.W.3d 301, 

306 (Tex. Crim. App. 2002). The statute requires that: 

(a) A convicting court may order forensic DNA testing under this 

chapter only if: 

(1) the court finds that: 

 (A) the evidence: 

 (i) still exists and is in a condition making DNA testing 

possible; and 

 (ii) 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; 

(B) there is a reasonable likelihood that the evidence contains 

biological material suitable for DNA testing; and 

(C) identity was or is an issue in the case; and 

(2) the convicted person establishes by a preponderance of the 

evidence that: 

 (A) the person would not have been convicted if exculpatory 

results had been obtained through DNA testing; and 
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(B) the request for the proposed DNA testing is not made to 

unreasonably delay the execution of sentence or administration of 

justice. 

Tex. Code Crim. Proc. art. 64.03(a). “[W]hether “reasonable grounds” exist for 

testing necessarily turns on what is required for testing.” See Ex parte Gutierrez, 337 

S.W.3d 883, 891 (Tex. Crim. App. 2011). “Basic requirements are that biological 

evidence exists, that evidence is in a condition that it can be tested, that the identity 

of the perpetrator is or was an issue, and that this is the type of case in which 

exculpatory DNA results would make a difference.” Id. 

 Here, appellant requests that a sexual assault evidence collection kit and the 

complainant’s dress be tested for DNA. As an initial matter, the issue at trial was 

consent, rather than identity. The record reflects that identity was not an issue 

because appellant admitted he had a sexual encounter with the complainant on the 

night in question.1

 See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002) 

(identity was not an issue because the defendant confessed to the charged offense); 

see Baggett v. State, 110 S.W.3d 704, 707 (Tex. App.—Houston [14th Dist.] 2003, 

pet. ref’d) (identity not an issue when appellant admitted to being with victim and 

perpetrating a crime). Indeed, both the trial court and this Court identified the issue 

in this case as being consent.

2 Because appellant did not establish that identity was 

 

1

 Article 64.03(b) provides that a defendant’s confession or other admission of guilt does not 

remove identity as an issue in the case. Tex. Code Crim. Proc. art. 64.03(b) (“[T]he convicting 

court is prohibited from finding that identity was not an issue in the case solely on the basis of [a] 

plea, confession, or admission.”).

2

 In connection with the trial court’s denial of appellant’s state habeas application, the trial court 

made findings of fact and conclusions of law providing, in pertinent part:

FOF 4. Applicant was accused by the victim of having sexually assaulted her. 

Applicant gave a videotaped statement, a redacted version of which was played 

during trial, wherein he admitted having had sexual intercourse with the victim on 

the night in question. 

COL 11. Identity was not an issue in this case due to Applicant’s confession to 
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or is an issue in this case, the trial court properly denied appellant’s request for postconviction DNA testing. 

 Moreover, appellant cannot show the potential results from the testing would 

establish his innocence. Contrary to appellant’s argument to the trial court, DNA 

results cannot prove or disprove whether the sex was consensual. Accordingly, 

appellant has not demonstrated that the potential results from DNA testing of the 

SAEE kit or black dress would establish his innocence. See Ex parte Gutierrez, 337 

S.W.3d at 899. 

 For these reasons, the trial court did not err in denying appellant’s motion for 

DNA testing. Appellant’s issue is overruled.

III. Conclusion

The order of the trial court is affirmed. 

 /s/ John Donovan 

 Justice 

Panel consists of Justices Boyce, Donovan, and Wise.

Do Not Publish—Tex. R. App. P. 47.2(b). 

 

having a sexual encounter with the victim on the night in question. 

Additionally, in our opinion on direct appeal, this Court observed “[a]ppellant admitted having sex 

with the complainant on the night of the offense. The issue before us is whether the evidence 

supports the jury’s finding that the complainant did not consent.” Dove, 2014 WL 6602421, at *3.