AFFIRMED and Opinion Filed April 21, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00132-CR 

ANGEL AMBROSE, Appellant 

V. 

STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 6 

Dallas County, Texas 

Trial Court Cause No. F10-59769-X 

MEMORANDUM OPINION 

Before Justices Molberg, Reichek, and Breedlove 

Opinion by Justice Breedlove 

In 2012, appellant Angel Ambrose was convicted of aggravated sexual assault 

of a child under the age of 14 and was sentenced to 15 years in prison. In 2018, 

appellant obtained post-conviction DNA testing pursuant to Chapter 64 of the Texas 

Code of Criminal Procedure. After a hearing, the trial court found that “had these 

results been available during Ambrose’s trial, it is NOT reasonably probable that he 

would not have been convicted.” 

Appellant appeals the trial court’s finding, complaining that the trial court 

erred in failing to hold a hearing under Texas Code of Criminal Procedure article 
 –2– 

64.04 and that had the results of the DNA testing been available during appellant’s 

trial it was not reasonably probable that he would not have been convicted. We 

affirm the trial court’s judgment. 

I. BACKGROUND 

Appellant was charged with penetrating the sexual organ of a minor with his 

finger. Complainant J.G. was seven years old at the time of the offense on or about 

April 11, 2009. J.G. was taken to a hospital where she underwent a sexual assault 

examination. At that time, vaginal, anal, and oral swabs were collected. The 

samples were tested for the presence of seminal fluid shortly after, but no seminal 

fluid was found on the samples and no DNA testing was conducted. The samples 

were retained by the Dallas Police Department. 

On December 17, 2012, appellant entered a negotiated plea of guilty and was 

sentenced to 15 years’ imprisonment. On April 10, 2017, appellant filed a motion 

and supporting affidavit requesting post-conviction DNA testing pursuant to Chapter 

64 of the Texas Code of Criminal Procedure. The State did not oppose the motion. 

The court granted the motion on March 21, 2018, and ordered Short Tandem Repeat 

(STR) Polymerase Chain Reaction (PCR) and Y-STR testing of the swabs from the 

sexual assault kit along with buccal swabs obtained from appellant. 

The DPS lab presented the results of the testing in three written reports. The 

first report, dated August 14, 2019, described the items received and analyzed by 

DPS. These items included the vaginal, anal, and oral swabs from the sexual assault 
 –3– 

kit along with a buccal swab from appellant. The kit also contained some smear 

slides which were not examined. 

The second report, dated December 3, 2019, concluded that based on STR 

testing of the swabs, all swabs yielded a partial DNA profile that originated from a 

single female individual. Appellant was excluded as a contributor to these profiles. 

The third report, dated the same day, reported that no Y-STR profile was 

obtained from either the vaginal or anal swabs. However, a partial Y-STR profile 

consistent with appellant was obtained from the oral swabs. DPS concluded that “At 

these loci, the selected profile is found in 4 of 5,717 total individuals within the 

database. In addition any paternally-related male relatives of [appellant] cannot be 

excluded as being the contributor of this male DNA profile.” 

On April 29, 2021, the trial court held a hearing via Zoom on the results of 

the post-conviction DNA testing which both the State and appellant’s counsel 

attended. On August 11, 2021, the court issued its findings, concluding that “had 

these results been available during Ambrose’s trial, it is NOT reasonably probable 

that he would not have been convicted.” 

Appellant appealed the trial court’s ruling on September 7, 2021. In two 

issues, appellant complains that (1) the trial court erred in failing to hold a hearing 

under Article 64.04; and (2) the trial court erred in finding that had the DNA results 

been available during appellant’s trial it was not reasonably probable that he would 

not have been convicted. In response, the State argues that (1) the trial court 
 –4– 

complied with Article 64.04 by holding a hearing on the post-conviction DNA test 

results; and (2) the trial court properly found that there was no reasonable probability 

the DNA test results would have led to appellant’s acquittal had they been available 

during his trial. 

II. STANDARD OF REVIEW 

We apply a bifurcated standard of review of a trial court’s findings under 

article 64.04, affording almost total deference to the trial court’s resolution of 

historical facts and mixed questions of law and fact that turn on determinations of 

witness credibility and demeanor but reviewing de novo questions of law and mixed 

questions of fact that do not turn on credibility and demeanor determinations. 

Dunning v. State, 572 S.W.3d 685, 692 (Tex. Crim. App. 2019). We review the trial 

court’s finding in this case de novo because it does not turn on witness credibility or 

demeanor determinations. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 

2002). 

III. DISCUSSION 

A. Whether the trial court failed to hold a hearing under Article 64.04 

In his first issue, appellant contends the trial court erred in failing to hold a 

hearing under Article 64.04. Article 64.04 provides that “[a]fter examining the 

results of testing under Article 64.03, 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.” 
 –5– 

TEX. CODE CRIM. PROC. ANN. art. 64.04. Appellant states that the trial court failed 

to hold a hearing on the results as required by statute. Specifically, appellant argues 

that the failure to hold a hearing deprived him of the opportunity to cross-examine 

the DPS analyst who conducted the testing and to present objections to the test 

results or reasons for the court to consider the results as favorable to appellant’s 

claim. He further argues that he was deprived of any opportunity to explain to the 

court why his guilty plea was inaccurate or unreliable. However, the reporter’s 

supplemental record shows that the trial court did hold an article 64.04 hearing on 

April 29, 2021, via Zoom, and that both the State and appellant’s counsel attended. 

At the hearing, the court provided appellant’s counsel the opportunity to present 

evidence or challenge the State’s evidence or arguments. Instead, appellant’s 

counsel stated: 

I would agree with everything that State’s counsel has stated about the 

case and the testing so far. We have not been able to discover any 

additional newly discovered evidence that would support any other 

identification of the actual perpetrator, if there was one. 

So we have not been able to find or develop any evidence that would 

lead to an alternative suspect that we could argue would elevate this 

evidence to the necessary level to meet the burden coming forth that 

this would be exculpatory. 

So we are in agreement that this is not exculpatory because it does 

include, potentially, Mr. Ambrose as a perpetrator in this testing. 

When asked if either side had anything further or any questions for the court, 

appellant’s counsel responded that he did not. Because appellant did in fact have an 
 –6– 

opportunity to present evidence and argument to the trial court regarding the test 

results or to object to the State’s evidence and did not do so, we overrule appellant’s 

first issue. See TEX. R. APP. P. 33.1(a)(1)(A). 

B. Whether the trial court erred in finding no reasonable probability that the 

DNA results would have led to appellant’s acquittal 

In his second issue, appellant contends the trial court erred in finding that had 

the DNA results been available before his trial, he likely would not have pleaded 

guilty and would have been acquitted at trial because the results did not corroborate 

the allegations of vaginal penetration or establish him as the perpetrator of the assault 

“to the exclusion of anyone else.” However, we must first examine whether 

appellant preserved his complaint for appellate review. 

To preserve error for appellate review, an appellant must show that he 

objected in the trial court and that his objection “stated the grounds for the ruling 

that the complaining party sought from the trial court with sufficient specificity to 

make the trial court aware of the complaint, unless the specific grounds were 

apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A); Clark v. State, 365 

S.W.3d 333, 339 (Tex. Crim. App. 2012). The issue on appeal must comport with 

the objection made at trial. Id. (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. 

Crim. App. 1986). 

The objecting party must “let the trial judge know what he wants, why he 

thinks he is entitled to it, and to do so clearly enough for the judge to understand him 
 –7– 

at a time when the judge is in the proper position to do something about it.” Pena v. 

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 

S.W.2d 907, 909 (Tex. Crim. App. 1992)). In determining whether an argument on 

appeal comports with an objection made at trial, we look to the context of the 

objection and the shared understanding of the parties at the time. Lankston, 827 

S.W.2d at 911. A trial court’s ruling will not be reversed based on a legal theory 

that the complaining party did not present to the court. State v. Story, 445 S.W.3d 

729, 732 (Tex. Crim. App. 2014) (citing Hailey v. State, 87 S.W.3d 118, 122 (Tex. 

Crim. App. 2002)). 

As noted above, appellant’s counsel attended the article 64.04 hearing on 

April 29, 2021. At that hearing, the State argued that the results of the testing were 

not exculpatory as to appellant, and that, in fact, appellant could not be excluded as 

a contributor to the male DNA sample found on the oral swab. In response, 

appellant’s counsel agreed with the State’s arguments as we have quoted above. 

Based upon the statements of counsel and the findings in the reports, the court then 

signed the order finding that there was no reasonable probability that appellant 

would not have been convicted. He did not object to the contents of the report. He 

did not object to the court’s findings. He did not ask for or receive rulings. Instead, 

appellant agreed with the State’s (and ultimately the trial court’s) conclusions 

regarding the import of the DNA test results. Therefore, we hold appellant did not 
 –8– 

preserve his complaint on this issue for appellate review. TEX. R. APP. P. 

33.1(a)(1)(A); Clark, 365 S.W.3d at 339. 

 However, even if appellant had preserved the issue for appeal, the trial court 

did not err in finding it was not reasonably probable that appellant would not have 

been convicted in light of the new DNA test results because the results contained no 

exculpatory evidence, and in fact, contained new inculpatory evidence that supports 

the complainant’s assertions that appellant kissed her on the mouth and put his hand 

over her mouth during the alleged sexual assault. See Ex parte Gutierrez, 337 

S.W.3d 883, 892 (Tex. Crim. App. 2001) (to create a reasonable probability of 

acquittal, the DNA results must “affirmatively cast doubt upon the validity of the 

inmate’s conviction” and not merely “muddy the waters”). We overrule appellant’s 

second issue. 

IV. CONCLUSION 

We affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

220132F.P05 

 

/Maricela Breedlove/

MARICELA BREEDLOVE 

JUSTICE 
 –9– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ANGEL AMBROSE, Appellant 

No. 05-22-00132-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District 

Court No. 6, Dallas County, Texas 

Trial Court Cause No. F10-59769-X. 

Opinion delivered by Justice 

Breedlove. Justices Molberg and 

Reichek participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered April 21, 2023