COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00166-CR

JOHNNIE DUNNING APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 0632435D

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OPINION

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I. INTRODUCTION

Appellant Johnnie Dunning raises a single point challenging the “not 

favorable” finding made by the trial court following post-conviction DNA testing 

pursuant to chapter 64 of the Texas Code of Criminal Procedure. For the 

reasons set forth below, we will sustain Dunning’s point, vacate the trial court’s 

“not favorable” finding, and remand this case to the trial court for an entry of a 
2

finding that had the post-conviction DNA test results attained by Dunning been 

available during the trial of the offense, it is reasonably probable that Dunning 

would not have been convicted.1

II. FACTUAL BACKGROUND

The evidence and testimony presented at the chapter 64 DNA hearing 

show the following factual background. In 1999 on the morning of Dunning’s jury 

trial for the offense of aggravated sexual assault of a child by inserting his penis 

into the complainant’s anus, after the jury had been sworn and Dunning had 

entered a plea of “not guilty,” the trial court granted the State’s motion in limine to 

 

1The trial court’s May 17, 2017 order finds that “the post-conviction forensic 

DNA testing results do not cast affirmative doubt on the defendant’s guilt, and 

are, thus, NOT FAVORABLE, as defined by article 64.04 of the Texas Code of 

Criminal Procedure.” We note that article 64.04 was amended in 2003 (prior to 

Dunning’s 2010 motion for DNA testing and prior to the trial court’s May 17, 2017 

order) to eliminate the use of the word “favorable.” See Act of April 3, 2001, 77th 

Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of May 9, 

2003, 78th Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16 (current version at 

Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2017)). Article 64.04 no 

longer uses this standard; under the current version of article 64.04, the 

convicting court “shall 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.” Tex. Code Crim. Proc. Ann. art.

64.04. Thus, to the extent, if any, the trial court’s “not favorable” finding differs 

from a finding that had the results been available during the trial of the offense it

is not reasonably probable the person would not have been convicted, because 

we review de novo this ultimate application-of-law-to-the-facts question not 

involving credibility and demeanor, we apply the current standard despite 

referring to the trial court’s finding as “not favorable.” See Whitfield v. State, 430 

S.W.3d 405, 407 & n.1 (Tex. Crim. App. 2014) (recognizing trial court’s 

“unfavorable findings” equated to finding under article 64.04 that there was no 

reasonable probability that defendant would not have been convicted had the 

results been available at his trial); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. 

App. 2002) (stating that this ultimate question is reviewed de novo on appeal).
3

exclude evidence of convictions by registered-sex-offender Lorne Clark and to 

prevent Dunning from making any arguments or statements that Clark was the 

actual assailant. Clark was the stepfather of, and lived in an apartment with, the 

mentally impaired and hearing impaired twelve-year-old male complainant. 

Dunning’s planned defense at trial was that Clark—not Dunning—had in fact 

perpetrated the offense, and that Clark had influenced and manipulated his 

stepson to identify Dunning––“the black man”—as the perpetrator in order to 

steer the investigation away from himself.2 Dunning explained that his defense 

 

2At the chapter 64 DNA hearing, Dunning’s trial counsel, David Pearson, 

testified, in part, as follows:

Q. If you would, give us kind of a general -- and like I told the 

Judge in front of you a minute ago, I’m not asking to try this case. I 

just want to tell the Judge basically what the allegations were and 

kind of what the case was about in about 30 words or less.

[PEARSON]: Well, the young victim, and I won’t use his 

name, I don’t remember whether he was -- a pseudonym was in the 

indictment or not, but he said that in an apartment complex laundry 

room allegedly the black man had had sex with him, but the witness 

that claimed that he heard him say that was a registered sex 

offender living in the same apartment that had been convicted of 

aggravated sexual assault in another state and had moved to Texas 

and moved into the same family home and was also convicted in this

county a month before Mr. Dunning for aggravated sexual assault of 

two children in the same apartment, and he was a witness.

Q. All right. Let me ask you this. Did you have a defense that 

you’d aligned in this case and gone over with Mr. Dunning about 

what y’all were going to try to defend this case with had he gone to

trial?

[PEARSON]: Yes, and that was our defense.
4

would be based on the facts that: Clark had been previously convicted of first 

degree sexual abuse of Clark’s stepdaughter in Arkansas; about a month after 

Dunning’s arrest, Clark had been arrested for sexual assault of two other female 

children who lived in the same apartment complex;

3 and, a few weeks before 

 

Q. Was that somebody else had committed the offense, had 

an opportunity to be around the victim and was a registered sex 

offender?

[PEARSON]: Well, and that plus the fact that the victim, it was 

in the report, was mentally challenged and deaf. He would have 

been in my opinion easy to manipulate, and you have a convicted 

sex offender that would be a master manipulator of children by

definition, and he wasn’t used as an outcry, but he was the original 

witness number two that said that’s what the child said to me. I got 

raped. The black man raped me.

Q. Okay. Now, and ultimately this child, a victim, picked Mr. 

Dunning out of a photo spread; is that correct?

[PEARSON]: Correct.

Q. And so it was your defense, then, that you were trying to 

present to the Court essentially that someone else who was a bad 

person had potentially kind of steered the investigation away from 

himself and was a sex offender in his own right; is that correct?

[PEARSON]: Well, that, and in my opinion that plus sloppy 

police work. 

3Although it was suggested during the course of these proceedings that the 

two other female victims were the male complainant’s siblings and although 

neither Defendant nor the State appeared to dispute the suggestion, our review 

of the record leads us to believe that the two other female victims were living in

the same apartment complex but were unrelated to the complainant. In either

case, the record reflects that Clark was convicted of sexual assault of two other 

children, occurring during the same time period and at the same apartment 

complex as the instant sexual assault.
5

Dunning’s trial was scheduled to start, Clark had pleaded guilty to the sexual 

assault of the two other female children. 

In anticipation of presenting his defense at trial that Clark was the 

perpetrator of the sexual assault on the complainant, Dunning had filed notice of 

his intent to offer copies of Clark’s prior sexual abuse conviction in Arkansas. 

When the trial court ruled that Dunning would not be able to present this 

evidence, Dunning entered into a plea bargain. Dunning faced a life sentence 

because of two prior credit card abuse convictions that are no longer classified 

as felonies. When the State agreed to the minimum sentence of 25 years’ 

confinement and the trial court agreed to grant Dunning permission to appeal the 

adverse ruling concerning the Lorne Clark evidence and arguments and also

permitted Dunning to make a bill of exception, Dunning entered a guilty plea 

conditioned on these agreements.4

Although the State possessed a sexual assault kit containing various 

swabs, as well as the complainant’s white shorts worn during and after the 

assault,5 no DNA testing had been conducted on any of the items prior to trial.

6

 

4Dunning timely filed a motion for new trial asserting that his decision to 

plead guilty was an error and was done solely because the exclusion on the 

morning of trial of any evidence or arguments concerning Clark—the “platform” of 

his case—which had left him “frantically scrambling.” The trial court denied the 

motion. 

5The September 3, 1996 police report, also offered into evidence at the 

chapter 64 DNA hearing, established that the complainant did not bathe, wash 

his genitals, or change his clothes prior to the administration of the sexual assault 

kit by the Fort Worth Police Department. 
6

 

6Pearson testified about the significance DNA testing in this case:

Q. Was there DNA testing done in this case prior to the entry 

of a plea?

[PEARSON]: No.

Q. To your knowledge by the State or the Defense?

[PEARSON]: Right. Not to my knowledge, no DNA testing 

was done.

Q. There was some serology, but there wasn’t any actual 

DNA testing; is that correct?

[PEARSON]: Correct. 

. . . . 

Q. Have you ever tried a DNA case?

[PEARSON]: Have I tried cases involving DNA? Yes.

Q. In your opinion in a sexual assault case of a child who is 

alleging that he’s been anally sexually assaulted, would DNA 

findings on a piece of clothing the child was wearing at the time that 

had DNA on the back side of the pants or the underwear, if that was 

underwear that the child wore or was wearing, would that be relevant 

in the guilt or innocence of the defendant potentially?

[PEARSON]: Yes.

Q. A no result could mean something, correct?

[PEARSON]: Right.

Q. Certainly if it was the Defendant in that case’s DNA, that 

would be very good for the State, would it not?

[PEARSON]: Correct.
7

In accordance with Dunning’s plea bargain conditioned on his right to 

appeal the trial court’s ruling concerning the Lorne Clark evidence and 

arguments, Dunning did appeal. Seventeen years ago, this court affirmed 

Dunning’s conviction, noting that the case “presented a very close question” and 

that other than the complainant’s identification of Dunning in a photographic lineup, “[n]o other evidence linked [Dunning] to the offense.” Dunning v. State, No. 

02-99-00311-CR, pp. 2, 5 (Tex. App.—Fort Worth, Feb. 22, 2001, pet. ref’d) (not

designated for publication).

III. PROCEDURAL BACKGROUND CONCERNING POST-CONVICTION DNA TESTING

In 2010, Dunning began requesting a post-conviction DNA test pursuant to 

chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. 

art. 64.01 (West Supp. 2017). Ultimately, after an approximately four-year delay 

for reasons not relevant here, the trial court ordered the Department of Public 

 

Q. And if the DNA findings were some third party unknown 

that were not the Defendant and not the perpetrator, that could also 

be relevant, correct?

[PEARSON]: Right.

Q. And in that last instance is it your opinion that that could be 

relevant and material in a jury finding that the person was not guilty if 

they believed all that?

[PEARSON]: Yes. It would be relevant.

Q. It could go either way, but it would certainly be something 

that would be relevant; would you agree with that?

[PEARSON]: Yes, no question. 
8

Safety to conduct DNA testing of the complainant’s white shorts and several 

additional items in the sexual assault kit but denied Dunning’s request for 

counsel at that time.7 

The DPS Crime Laboratory determined the proper locations for testing and 

tested portions of the white shorts but found no interpretable DNA profile. Thus, 

the State moved for an entry of a not favorable finding. On June 9, 2015, the trial 

court found that the lab results were inconclusive and entered a not favorable 

finding. During his appeal of the June 9, 2015 not favorable finding, Dunning 

was appointed counsel, and he filed a motion to dismiss his appeal, which we 

granted. See Dunning v. State, No. 02-15-00222-CR, 2015 WL 5722605, at *1 

(Tex. App.—Fort Worth Aug. 26, 2015, no pet.) (mem. op., not designated for 

publication).

Dunning then sought to conduct his own DNA testing and the trial court 

authorized the Serological Research Institute (SERI) to conduct the testing. Amy 

Lee, a forensic serologist at SERI, tested items, which included the white shorts, 

items in the sexual assault kit, and various swabs. The results and 

interpretations of SERI’s testing are found in Lee’s July 18, 2016 report. Lee’s 

report concerning SERI’s testing contains seven different conclusions, including

that Dunning was excluded as a donor of the DNA on all of the items tested 

(conclusions 2–5) and that, in addition to DNA of the complainant, there was also 

 

7But see Tex. Code Crim. Proc. Ann. art. 64.01(c).
9

DNA from a different person on the “crotch swab” of complainant’s white shorts 

(conclusion 4).

8

 Lee also concluded that both the complainant and Dunning were 

excluded as contributors to the DNA on the waistband swab of the white shorts

(conclusion 5). 

The State requested that Dr. Bruce Budowle review SERI’s testing and the 

conclusions in Lee’s report. The State filed an affidavit from Dr. Bodowle in 

which he agreed with all of Lee’s conclusions except for part of conclusion 5, 

which excluded the complainant as a possible contributor of the DNA located on 

the white shorts waistband swab. Dr. Budowle stated, “While I agree that 

Johnnie Dunning can be excluded as a possible contributor of the major portion

of the mixture, the victim . . . cannot be excluded as a possible contributor . . . .” 

Thus, even in his disagreement about part of conclusion 5, Dr. Budowle still 

agreed with Lee that none of Dunning’s DNA was found on any of the items 

tested. 

On February 28, 2017, the trial court conducted a chapter 64 DNA hearing

and received testimony from Dunning’s trial counsel, Amy Lee, Dr. Budowle, and 

Dunning. As set forth in the footnoted quotations from Dunning’s trial counsel’s 

testimony at the chapter 64 DNA hearing, Dunning’s planned trial defense was to 

suggest that Clark––who was a registered sex offender, who had been convicted 

in Arkansas of sexual abuse of his stepdaughter, who had been convicted of 

 

8

It was suggested at oral argument that this third-party DNA was 

specifically male DNA. 
10

sexual assault of two other children who lived in complainant’s apartment 

complex, and who had helped the complainant report the offense and identify 

Dunning as the assailant––was actually the perpetrator. The trial court’s 

morning-of-trial ruling excluding this evidence after Dunning had pleaded not 

guilty led to the plea bargain and Dunning’s guilty plea. Dunning’s trial counsel 

opined that DNA findings on the complainant’s clothing including a third person, 

not the victim and not Dunning, and excluding Dunning as a contributor to all 

DNA tested, would have been material and relevant to Dunning’s guilt or 

innocence but that there was no DNA testing done prior to Dunning’s guilty plea. 

The trial court also heard testimony from Amy Lee and Dr. Budowle. Both 

Lee and Dr. Budowle agreed that Dunning’s DNA was not found present on any 

of the items tested.9 Lee was asked about her conclusions, and in particular, her 

findings about the complainant’s white shorts:

 

9The State conceded that the post-conviction DNA testing excluded 

Dunning as a contributor of any DNA found on any of the items tested: 

[PROSECUTOR]: I don’t think -- I don’t think anybody is 

disputing that Mr. Dunning’s DNA is not on any of these items. I 

think Ms. Lee said that; I think Dr. Budowle said that. 

. . . .

[DEFENSE COUNSEL]: He’s [Dunning] excluded in more 

than one place, and that’s not in dispute. I mean he is absolutely 

excluded as being the contributor to the DNA anywhere in this case.

THE COURT: And that’s -- you do agree with that, 

[Prosecutor]?
11

Q. So what you’re saying in summary is the DNA on the victim’s 

shorts, and this is -- if we go back and look, these are shorts that the 

swab actually came from -- where was the swab? What part of the

underwear did the swab touch? It’s the rear area of the pants; is 

that right?

A. I believe it was described as ‘crotch.’

Q. And that sample there has two people’s DNA, right?

A. At least, yes.

Q. One of them belongs to the victim, right?

A. Correct.

Q. And the other one does not belong to Johnnie Dunning; is that 

right?

A. That’s correct. 

Thus, Lee’s testimony confirmed that DNA existed on the complainant’s white 

shorts that was not attributable to Dunning or to the complainant.

10

 

 

[PROSECUTOR]: Yes, I do agree with that. 

10Conclusions 4 and 5 set forth in Lee’s report provide:

4. A mixture of at least two individuals was obtained from the shorts 

crotch swab (02-01-AB, item 4-4) and the shorts crotch extract (02-

01 AB, item 5-2). Victim RFF is included as the major contributor to 

both mixtures and the chance that another random person unrelated 

to him could be similarly included is approximately one in one billion 

for items 4-4 and 5-2. Johnnie Dunning is excluded as a possible 

contributor to both mixtures.

5. A mixture of a least two individuals was obtained from the shorts 

waistband swab (02-01-AA, item 4-3). Victim RRF and Johnnie 

Dunning are both excluded as possible contributors to the major 

portion of this mixture. There is insufficient information in the minor 

component of this mixture for any conclusions to be made.
12

With only slight variances, Dr. Budowle’s live testimony reaffirmed his 

affidavit, which provided that he was in agreement with SERI’s conclusions

except for part of conclusion 5. Dr. Budowle testified live that he was “cautious”

concerning SERI’s conclusion 4 although he did not disagree outright with it. Dr. 

Budowle also expressed some disagreement on how SERI performed its

statistical analysis, but stopped short of any type of reliability challenge to the 

protocols utilized by SERI in obtaining statistical data. Ultimately, Dr. Budowle 

testified on cross-examination:

[DEFENSE COUNSEL]: Q. But the fact of the matter is you don’t

have any dispute that this little boy’s underwear has got his DNA on 

it and got somebody else’s DNA on it, right?

A. I don’t dispute that, no.

[DEFENSE COUNSEL]: Q. And that somebody else’s DNA is not 

Johnnie Dunning’s?

A. I don’t dispute that, no.

Dunning testified that identity was an issue at the trial. 

After hearing and considering all of the above evidence, the trial court 

entered a “not favorable” finding under article 64.04 after finding that the postconviction DNA testing results did “not cast affirmative doubt on the defendant’s 

guilt[.]” The trial court did not enter separate findings.

IV. STANDARD OF REVIEW

When reviewing a trial court’s finding in a chapter 64 post-conviction-DNAtest proceeding as to whether, had the results been available during the trial of 
13

the offense, it is reasonably probable that the person would not have been 

convicted, we apply the same standard of review applied to review a trial court’s 

ruling granting or denying DNA testing under article 64.03. See Tex. Code Crim. 

Proc. Ann. arts. 64.03, 64.04 (West Supp. 2017); Asberry v. State, 507 S.W.3d 

227, 228–29 (Tex. Crim. App. 2016) (explaining that “we do not see any reason 

to treat a review of a ruling pursuant to Article 64.04 differently than a ruling 

pursuant to Article 64.03”). That is, we use the familiar bifurcated standard of 

review articulated in Guzman v. State: we give almost total deference to the 

judge’s resolution of historical fact issues supported by the record and 

applications-of-law-to-fact issues turning on witness credibility and demeanor and 

we review de novo all other application-of-law-to-fact questions. 955 S.W.2d 85, 

89 (Tex. Crim. App. 1997); see also Reed v. State, No. AP-77,054, 2017 WL 

1337661, at *6 (Tex. Crim. App. Apr. 12, 2017), petition for cert. filed, (U.S. Feb. 

1, 2018) (No. 17-1093); Rivera, 89 S.W.3d at 59. We review the entire record, 

that is, all of the evidence that was available to, and considered by, the trial court 

in making its ruling, including testimony from the original trial. Asberry, 507 

S.W.3d at 228. The ultimate question of whether a reasonable probability exists 

that exculpatory DNA tests would have caused the appellant to not be convicted 

“is an application-of-the-law-to-fact question that does not turn on credibility and 

demeanor and is therefore reviewed de novo.” See Rivera, 89 S.W.3d at 59. 
14

V. THE LAW CONCERNING FINDINGS ON POST-CONVICTION DNA TESTING

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

which a defendant 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). Chapter 64 of the code of 

criminal procedure provides that a convicted person may submit a motion to the 

convicting court to obtain post-conviction DNA testing. Tex. Code Crim. Proc. 

Ann. art. 64.01; Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011). 

If such DNA testing is conducted, the convicting court shall 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. Tex. Code Crim. Proc. Ann. art. 64.04; see also Solomon v. State, 

No. 02-13-00593-CR, 2015 WL 601877, at *4 (Tex. App.—Fort Worth Feb. 12, 

2015, no pet.) (mem. op., not designated for publication). The defendant may 

appeal a trial court’s finding that even if DNA testing results had been available 

during the trial of the offense, it is not reasonably probable that the person would 

not have been convicted. See Tex. Code Crim. Proc. Ann. art. 64.05 (West 

2006); Whitfield, 430 S.W.3d at 409.

To be entitled to a finding that, had the results been available during the 

trial of the offense, it is reasonably probable that the person would not have been 

convicted, “[t]he defendant must prove that, had the results of the DNA test been 

available at trial, there is a 51% chance that the defendant would not have been 
15

convicted.” Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st 

Dist.] 2014, pet. ref’d); Medford v. State, No. 02-15-00055-CR, 2015 WL 

7008030, at *3 (Tex. App.—Fort Worth Nov. 12, 2015, pet. ref’d) (mem. op., not 

designated for publication). A defendant is not required to establish actual 

innocence to be entitled to a favorable finding. See Glover, 445 S.W.3d at 862.

VI. ANALYSIS

On appeal, the State argues that the lack of Dunning’s DNA on any of the 

items tested does not establish Dunning’s innocence and that even if the DNA 

test results are exculpatory, Dunning’s judicial admission and the complainant’s 

identification of Dunning from a photographic line-up are sufficient evidence of 

Dunning’s guilt to preclude a finding that had the results of the DNA test been 

available at trial, there is a 51% chance that the defendant would not have been 

convicted. Concerning the results of the DNA tests, the State does not mention 

or address the DNA testing of the “shorts crotch swab” or the “shorts crotch 

extract” test results set forth in Lee’s conclusion 4––that a mixture of at least two 

individuals’ DNA was found on both the “shorts crotch swab” and the “shorts 

crotch extract” and that although the complainant was the major contributor to 

both mixtures, Dunning was excluded as a contributor to both mixtures. Instead, 

the State focuses its arguments on the “waistband swab” DNA test results set 

forth in Lee’s conclusion 5 to argue that “it can be presumed that the trial court 

agreed that [the complainant] could not be excluded as a potential contributor to 
16

the DNA profile obtained from the waistband swab, and that the presence of 

minor DNA profiles did not establish an alternate perpetrator.” 

Dunning, on the other hand, focuses his arguments on the “shorts crotch 

swab” and the “shorts crotch extract[,]” Lee’s conclusion 4, and Dr. Budowle’s 

agreement with Lee’s conclusion 4 that the “shorts crotch swab” contained a 

mixture of the complainant’s DNA and the DNA of another person who was not 

Johnnie Dunning. Dunning argues that—because the complainant was still 

wearing the white shorts when he was taken to the hospital; because police 

seized the shorts from the hospital; because the police report documents that the 

complainant did not bathe, wash his genitals, or change his clothes, or otherwise 

interrupt the “chain of custody” of the items tested; and because Lee and Dr. 

Budowle agree that a third person’s DNA was found in the “shorts crotch swab” 

and the “shorts crotch swab extract”—if this exculpatory DNA evidence had been 

available during the trial of the offense, it is reasonably probable that Dunning 

would not have been convicted.

First, we agree with Dunning that the post-conviction DNA test results in 

this case excluding him as a contributor to any DNA found on any item tested 

and establishing the existence of another DNA contributor––that is not Dunning 

and is not the complainant––to a mixture of DNA on the complainant’s shorts in 

the “shorts crotch swab” and the “shorts crotch extract” is exculpatory. See, e.g., 

Reed, 2017 WL 1337661, at *6 (explaining that exculpatory results are 

necessarily results excluding the convicted person as the donor of the material). 
17

This is not a case, like those relied upon by the State, where DNA evidence of 

the convicted defendant is simply absent or where the DNA evidence is 

inconclusive as to whether the convicted defendant was a contributor. See, e.g., 

Booker v. State, 155 S.W.3d 259, 266–67 (Tex. App.—Dallas 2004, no pet.) 

(upholding trial court’s negative finding because DNA testing did not exclude 

appellant as the assailant); Fuentes v. State, 128 S.W.3d 786, 787 (Tex. App.—

Amarillo 2004, pet. ref’d) (upholding trial court’s negative finding when postconviction DNA testing revealed DNA profile from the sperm fraction of the 

semen on the victim’s panties to be consistent with a mixture of the convicted 

defendant and the victim). Nor is this a case where the effect of exculpatory 

DNA evidence is to merely muddy the waters. LaRue v. State, 518 S.W.3d 439, 

446 (Tex. Crim. App. 2017) (“The required showing [for DNA testing] has not 

been made if exculpatory test results would ‘merely muddy the waters.’”) (quoting 

Rivera, 89 S.W.3d at 59). In this case, the post-conviction DNA test results do 

more than merely exclude Dunning as a contributor; there is additional DNA 

evidence. Both the State’s expert Dr. Budowle and the defense expert Amy Lee 

agree that another person contributed DNA to the “shorts crotch swab” and the 

“shorts crotch extract” and agreed that this other person was not the complainant 

or Dunning.

Concerning Dunning’s judicial confession, we note that chapter 64 

expressly contemplates and authorizes post-conviction DNA testing even after a 

guilty plea. Tex. Code Crim. Proc. Ann. art. 64.03(b). Based on the clear 
18

language in article 64.03, the court of criminal appeals has recognized that “[a]n 

appellant who entered a guilty plea is no more, or less, entitled to a favorable 

ruling on his Chapter 64 motion [for DNA testing] than one who plead[s] not 

guilty.” Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Thus, the 

mere fact that Dunning pleaded guilty cannot automatically render it not 

reasonably probable that had the DNA results been available during trial he 

would not have been convicted, or else there would be no reason to permit postconviction DNA testing after guilty pleas. Accord Blacklock, 235 S.W.3d at 232

(reversing trial court’s denial of post-conviction DNA testing despite defendant’s 

guilty plea because “exculpatory DNA test results, excluding appellant as the 

donor of this material, would establish appellant’s innocence”). And here, 

Dunning’s judicial confession must be viewed in the context of the record before 

us showing the posture of his case when he made it. See Asberry, 507 S.W.3d 

at 228 (instructing appellate courts that in reviewing a trial court’s article 64.04 

finding, we review the entire record to determine whether appellant established 

that he would not have been convicted). That posture is that the day before his 

guilty plea, Dunning had entered a plea not guilty. He was prepared for a jury 

trial, but on the morning of trial, any evidence of Clark’s prior convictions for 

sexual abuse of his stepdaughter in Arkansas and argument concerning the 

“platform” of his defense—that Clark was the actual assailant—was excluded 

when the trial court granted the State’s motion in limine. So, Dunning changed 

his plea to guilty and made a judicial confession to attain a plea-bargained 
19

sentence of the 25-year minimum because his indictment alleged two prior felony 

convictions for credit card abuse and because he faced a life sentence.

Concerning the inculpatory evidence against Dunning consisting of the 

complainant’s identification of him from a photographic line-up, again, the court of 

criminal appeals has recognized in the context of chapter 64 motions for postconviction DNA testing, following a sexual assault conviction, 

eye-witness identification of [appellant] is of no consequence in 

considering whether [appellant] has established that, by a 

preponderance of the evidence, exculpatory DNA tests would prove 

his innocence. In sexual assault cases like this, any overwhelming 

eye-witness identification and strong circumstantial evidence . . . 

supporting guilt is inconsequential when assessing whether a 

convicted person has sufficiently alleged that exculpatory DNA 

evidence would prove his innocence under Article 64.03(a)(2)(A). 

Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (emphasis 

added). Thus, again, the mere fact that the complainant identified Dunning in a 

photographic line-up cannot automatically render it not reasonably probable that 

had the DNA results been available during trial he would not have been 

convicted, or else there would be no reason to permit post-conviction DNA 

testing if a complainant identifies the alleged defendant. We must consider the 

complainant’s identification of Dunning along with the undisputed facts that the 

complainant was twelve years old, was mentally impaired and hearing impaired, 

lived with Clark, and according to Dunning’s trial counsel, could have been easily 

manipulated by Clark to deflect suspicion away from himself, and that Clark had 
20

spoken to police and reported that the complainant had said that “a black man 

raped me.”

In summary, examining the entire record, giving almost total deference to 

the trial court’s resolution of disputed historical fact issues supported by the 

record and applications-of-law-to-fact issues turning on witness credibility and 

demeanor, the record before us reflects: that Dunning had pleaded not guilty; 

that Dunning was prepared to begin trial before a jury, that Dunning signed a 

judicial confession the morning of trial only after the trial court ruled he could not 

present Clark’s Arkansas conviction to the jury or mention or present arguments 

concerning Clark; that Dunning faced up to a life sentence and that, in exchange 

for his guilty plea and judicial confession, the State agreed to the minimum 25-

year sentence; that within three weeks of his guilty plea Dunning filed a pro se

motion for new trial explaining that his decision to plead guilty was an error and 

was made based on the exclusion on the morning of trial of any evidence or 

arguments concerning Clark—the “platform” of his case—which had left him 

“frantically scrambling”; that identity was an issue––in fact, the only issue; that 

the DNA test results established the absence of Dunning’s DNA on all tested 

items––including the crotch of complainant’s shorts worn during the sexual 

assault and not removed until the complainant reached the hospital; that the DNA 

test results established that not only was Dunning’s DNA not present in the 

“shorts crotch swab,” but that another person’s DNA was present there along 

with the complainant’s DNA; and that Dunning’s and the State’s experts both 
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agreed that another person––who was not Dunning and not the complainant––

had contributed DNA to the “shorts crotch swab” tested and to the “shorts crotch 

extract” tested. In light of all of these facts—including Dunning’s judicial 

confession and the complainant’s identification of Dunning from a photographic 

lineup—applying a de novo standard of review to the application-of-the-law-tothe-fact-issue of whether Dunning has proved that had the post-conviction DNA 

test results we now have been available during the trial of the offense it is 

reasonably probable that he would not have been convicted, we hold that he has 

so proven by a preponderance of the evidence; that is, there is a 51% chance 

that a reasonable juror would have had a reasonable doubt about Dunning’s guilt 

had the current post-conviction DNA test results been available at the time of 

trial. See Tex. Code Crim. Proc. Ann. art. 64.04; Glover, 445 S.W.3d at 861; 

accord Routier v. State, 273 S.W.3d 241, 259 (Tex. Crim. App. 2008) (reversing

order denying DNA testing of certain items because such testing could add DNA 

evidence “to the evidentiary mix” that would have corroborated appellant’s theory 

of an alternate assailant and “could readily have tipped the jury’s verdict in 

appellant’s favor”); State v. Long, No. 10-14-00330-CR, 2015 WL 2353017, at *3 

(Tex. App.—Waco May 14, 2015, no pet.) (mem. op., not designated for 

publication) (affirming a trial court’s “favorable” finding when “there was no DNA 

evidence found on any evidence that matched the profile of [appellee]”); 

Solomon, 2015 WL 601877, at *5 (affirming a trial court’s not favorable finding 

because even though “the test results did not add any further corroboration for 
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appellant’s guilt, they also did not affirmatively link someone else to the crime or 

conclusively exclude appellant's commission of it”) (emphasis added).

We sustain Dunning’s sole point. 

VII. CONCLUSION

Having held that Dunning established a reasonable probability that he 

would not likely have been convicted had the post-conviction DNA testing been 

available at the time of trial, we sustain Dunning’s sole point of error, vacate the 

trial court’s May 17, 2017 “not favorable” finding, and remand this case to the trial 

court for an entry of a finding that had the post-conviction DNA test results 

attained by Dunning been available during the trial of the offense, it is reasonably 

probable that Dunning would not have been convicted. 

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: WALKER, MEIER, and KERR, JJ.

PUBLISH

DELIVERED: March 1, 2018