1 John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeal s, si tt ing by assignment. Tex. Gov’tCode An n. §7 5.00 2(a) (1) (V erno n Su pp. 2 004 ). NO. 07-03-0368-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

20, 2004

______________________________ LEOPOLDO FUEN TES, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 46 TH DISTRIC T COURT O F W ILBARG ER COUNTY;

NO. 9124; HON. TOM NEELY, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Appellant

Leopoldo Fuentes a ppeals from an order of the tri al court findin g that the results of post-conv iction DNA

testing w

ere unfavorabl e to him. The finding was allegedly
erroneous because the test “estab lish[ed] a second party involvement in the . . . sexual assault” for which he was convicted. W e affirm the orde r.2 Background Appellant

was conv icted in 1994 of ag gravated sexual assault. On March 25, 2002, he filed a motion seek ing DNA testi ng and appo intment of coun sel. The trial court thereafter

appointed counsel and set the matter for hear ing. A hear ing was conducted on April 1 6, 2003, which appellant attend ed. At that hearing, the State a greed that DNA testing should take pl ace. The court gr anted the motion, and t he testing w as conducted. On June 16, 2003, a he aring was held on the results of the testing, during which thetrial court found that the r

eport was unfavorable to ap pellant.

Trial Court’s Finding In his sole issue, appellant conte nds that the trial court erred in its finding that the D NA testing results were unfavorable to him. At the time of the hearing on this matter , article 64.04 of the Code of Criminal Procedure provide d that after examining the test results, “the con victing court shall hold a hearing and make a finding as to wheth er the results are favorable to the convicted person.” T EX . C ODE C RIM . P ROC
. A NN . a rt . 64.04 (Vernon Supp. 2003). Such results are f avorable “if, had the results been available before
or during the trial of

the offense, it is r

easonably pr

obable that the per

son would no t have been prosecuted or

convicted .” Id. This language is similar to that formerly used in article 64.03 of the same code. There, the trial court wasrequired to find before ordering DNA testing that “a reasonable probability exists that the person w ould not have been prosecuted or convi cted if excul patory res ults ha d bee n obtained through DNA testing . . . .“ T EX . C ODE C RIM . P ROC
. A NN . a rt. 64.03(a)(2)(A) (Vernon Supp. 200 3). Furthermore, to satisfy that threshold, it had to be show n th at a rea sonable probabil ity3

existed that excul patory DN A tests would prove the defendant’s innoce nce. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex. Crim. Ap p. 2002). And, that occur s when ther

e is a probabi lity suffici ent to undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex. App. --Houston [1 4 th Dist.] 2003, pet. ref’d). So, we res olve appell ant’s attack u pon the trial court’s finding at bar by assessing whether the DNA tests which were under taken create a pr

obability of innocence sufficient to undermine the confidence in the o utcome of the trial. And , we not onl y treat tha t matter
as a qu estion of la w but alsoresolve it de novo

. See Rivera v. State, 89 S.W.3d at 59 (stating that generally the question of whether a reasonab le probability exists that DNA tests would prove innocence is an applicatio n of the law tha t does not turn o n credibili ty or demeanor of a witness)

. Here, the post conv iction test revealed the DNAprofile from the “ sperm fraction of the semen on the [victi m’s] panties [to be] consistent with a mi xture of [appel lant] and [the victim].”And, though the re were additional findi ngs that another potential contr ibutor to the sperm fraction existed, appellant nonethel ess could not beexcluded “ as the contri butor of the major component of the semen on the panti es.” Furth er, the probabi lity that someone other than appellant

contributed th e major

component of semen was “approximately 1 in 8.913 trilli on for Caucasians , 1 in 73.05 tr illion for Bl acks, [and] 1 i n 466.2 billi on for Hispanics. ” The approximate population of the world, according to the test report, was only 6.3 billion. Given that a ppe llant’s se men was found in t he victi m’s panties and t hat the odds of someone other than appel lant being t he major contri butor of that semen exc eeded4

the world po pulation, we cannot s a y that the test created a probability of inno cence sufficient to undermi ne confidence in the outcome of the trial

. Accordingl y, the order

of the trial court is affirmed.

Brian Quinn Justice

Publish.