Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00114-CR

Mark Dalton SIMPSON a/k/a Mark Dalton Acevedo,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-7631

Honorable Mary D. Roman, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: January 30, 2013

AFFIRMED

Mark Dalton Simpson a/k/a Mark Dalton Acevedo appeals the trial court’s denial of his 

post-conviction motion for re-testing of DNA material. See TEX. CODE CRIM. PROC. ANN. art. 

64.01(b)(2) (West Supp. 2012). We affirm.

BACKGROUND

Simpson was indicted for sexual assault of a child younger than 14 years of age 

by digitally penetrating the child’s female sexual organ. See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B)(i) (West Supp. 2012). After a jury trial, Simpson was convicted of aggravated 
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sexual assault of a child as charged, and was sentenced to fifteen years in prison. On appeal, 

Simpson argued the evidence was legally and factually insufficient to support the jury’s finding 

that he penetrated the female sexual organ of the child. We overruled his appellate issues and 

affirmed the trial court’s judgment. Acevedo v. State, No. 04-05-00575-CR, 2006 WL 3611379, 

at *2 (Tex. App.—San Antonio Dec. 13, 2006, pet. ref’d) (mem. op., not designated for 

publication) (holding that any penetration that passes beyond the folds of the external genitalia, 

no matter how slight, is sufficient and the child’s testimony alone was sufficient to support the 

conviction). The trial evidence, as summarized in our prior opinion, consisted of the testimony 

of the child, B.G., who stated that Simpson touched her with his hand under her clothes on her 

“private” and put his finger in her private part on the night in question; the testimony of the 

sexual assault nurse who examined B.G., who stated that the physical examination of B.G. 

showed no trauma to her genital area, but that B.G. told her that Simpson “touched me right 

here” and pointed to her genital area; and the testimony of Garon Foster, a forensic analyst, who 

stated that forensic testing of the biological material on a cutting from the boxer shorts that 

Simpson was wearing when arrested showed a mixture of Simpson’s DNA and other DNA, and 

that B.G.’s DNA could not be excluded as the donor of the other DNA whereas 99.3% to 99.6% 

of the population could be excluded. Id. at *1.

On October 6, 2011, Simpson filed a post-conviction motion requesting that the DNA 

material found on his boxers be re-tested “through newer testing techniques that provide a 

reasonable likelihood of results more accurate and probative than the results of [the] previous 

test.” See TEX. CODE CRIM. PROC. ANN. art. 64.01(b)(2). Simpson asserted in his pro se motion 

that there is reason to doubt the accuracy of the previous DNA results because the DNA tests 

“failed to provide probative results.” He cited Foster’s testimony that he used the population of 

San Antonio in the testing, that there was a possibility of contamination, and that he is capable of 
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making mistakes. Simpson also asserted that it was “not proven” that the child was the donor of 

the DNA found on his boxer shorts, and that if the biological material had been adequately tested 

“to prove identity of the child” he would not have been prosecuted or convicted. Simpson 

attached an affidavit in support of the factual statements in his motion. See id. art. 64.01(a-1) 

(West Supp. 2012). The trial court denied the motion in a written order on January 27, 2012, 

without holding a hearing. The court found that Simpson failed to establish he was entitled to retesting of the DNA material under article 64.01(b)(2) because: (i) he did not show that re-testing 

with newer techniques could be conducted that would exclude him as the perpetrator and prove 

his innocence; (ii) setting aside the DNA evidence, the child’s testimony was alone sufficient to 

support Simpson’s conviction of aggravated sexual assault; and (iii) identity was not, and is not, 

an issue in the case. Simpson now appeals the denial of his request for re-testing of the DNA 

material. 

ANALYSIS

We review a trial court’s order denying a post-conviction motion for DNA testing under a 

bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004); 

Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard, we afford almost 

total deference to the trial court’s determination of issues of historical facts and application-oflaw-to-fact issues that turn on credibility and demeanor, but review de novo other application-oflaw-to-fact issues. Rivera, 89 S.W.3d at 59. The ultimate question of whether a reasonable 

probability exists that exculpatory DNA tests would prove the defendant’s innocence is reviewed 

de novo. Id.

Several requirements must be met in order to obtain DNA testing under Chapter 64. TEX.

CODE CRIM. PROC. ANN. art. 64.03(a) (West Supp. 2012). The convicting court may order 

forensic DNA testing only if the statutory preconditions are met. Id.; Bell v. State, 90 S.W.3d 
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301, 306 (Tex. Crim. App. 2002). One of those preconditions is that the defendant establish by a 

preponderance of the evidence that he would not have been convicted if exculpatory results had 

been obtained through DNA testing. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). This 

means that the defendant has the burden to show that “a reasonable probability exists that 

exculpatory test results would prove his innocence.” Whitaker, 160 S.W.3d at 8. Here, 

regardless of the DNA results, other evidence at trial established Simpson’s guilt, particularly the 

child’s testimony which alone was a sufficient basis for the jury’s guilty verdict. See Acevedo, 

2006 WL 3611379, at *2 (noting the jury chose to believe B.G.’s testimony that Simpson 

touched her with his hand under her clothes on her “private” and put his finger in her private 

part, and that such testimony is alone sufficient to support the conviction). Thus, despite the 

assertions in his motion and affidavit, Simpson has failed to meet his burden to show, by a 

preponderance of the evidence, that he would not have been convicted if exculpatory results had 

been obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A); see 

also Whitaker, 160 S.W.3d at 9.

In addition, Simpson has not shown that newer testing techniques exist that provide “a 

reasonable likelihood of results that are more accurate and probative” as required for re-testing of 

DNA material. See TEX. CODE CRIM. PROC. ANN. art. 64.01(b)(2) (stating the requirements for 

retesting); see also Flores v. State, No. 04-09-00457-CR, 2010 WL 1904993, at *3 (Tex. App.—

San Antonio May 12, 2010, pet. ref’d) (mem. op., not designated for publication). A defendant 

must do more than simply move for testing of DNA evidence; he must provide facts in support 

of the motion. Dinkins v. State, 84 S.W.3d 639, 642–43 (Tex. Crim. App. 2002). Here, 

Simpson’s bare allegations in his motion and affidavit fail to establish a reasonable likelihood 

that re-testing of the DNA material would provide more accurate or probative results. He also 
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does not actually contend that new, more reliable testing procedures are available. See TEX.

CODE CRIM. PROC. ANN. art. 64.01(b)(2).

Accordingly, we conclude the trial court did not err in finding that Simpson failed to 

show he is entitled to re-testing of the DNA material, and we affirm the trial court’s order.

Rebeca C. Martinez, Justice

DO NOT PUBLISH