## NUMBER 13

- 2 0

- 00 450

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

NOLAN DEWAYNE THOMPKINS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the 54th District Court

of McLennan C ounty, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contrera s and Justices Benavides and Silva

Memorandum Opinion by Justice Silva

Appellant Nolan De W ayne Thompkins raises a single issue challenging the trial

court ’ s denial of his request for post

- conviction DNA testing pursuant to Chapter 64 of the2 Texas Code of Criminal Procedure. 1 See T EX

. C ODE C RIM

. P ROC

. A NN

. art s

. 64.01

– .03.

We affirm.

I. B ACKGROUND

On August 7, 2013, Thompkins was indicted on three counts of sexual assault.

The indictment alleged he penetrated the mouth, vagina, and anus of the complainant

,

T.H. 2 On November 13, 2014, a jury found Thompkins guilty on all three counts.

Thompkins received a life sentence for each count. Because the parties dispute whether

the identity of the perpetrator was at issue and whether any potential testing results would

cast an affirmative doubt on the validity of Thompkins ’ s conviction considering other

evidence introduced at trial, we recite the pertinent facts from trial.

A. Trial Evidence

T.H. testified that on November 2, 2012, she walked to a n unspecified location to

buy a “$5 hit of crack” and s mok ed it there. Upon nightfall

, T.H. accepted a ride home

from an acquaintance’ s drug dealer. T.H. did not know his name. T.H. testified that the

dealer stopped at an apartment complex, and T.H. accompanied him inside the apartment

because she needed to use the restroom. T.H. exited the restroom and realized that she

was alone in the apartment with a man later identified as Thompkins. T.H. testified that

Thompkins was a stranger to her

. W hen T.H. attempted to use her cell phone to call a

friend for a ride home

, Thompkins took her cell phone and said that “he would kill [her]” if

1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to a docket

equalization order issued by the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN

. § 74.001.

2 Although the complainant ’ s identity was not concealed at trial, we use only her initials here to

protect her identity. See T EX

. R. A PP

. P . 9.8 cmt. (“T he rule does not limit an appellate court ’ s authority to

disguise parties' identities in appropriate circumstances in other cases.”); see also , e.g.

, Jaycox v. State

, No. 13

- 13

- 00639

- CR, 2015 WL 5233200, at *1 (Tex. App.

— Corpus Christi

– Edinburg Sept. 3, 2015, no pet.)

(mem. op., not designated for publication).3 she did not have sexual intercourse with him

. T.H. testified that Thompkins penetrated

her orally, vaginally, and anally, and the encounter persisted “on and off for hours” with

T h ompkins occasionally stopping to “take

. . . a hit of crack.” T.H. testified she initially

“tried to fight,” but Thompkins responded by putting his “hand over [her] mouth and around

[her] neck ” and threatening to “kill [her] if [she] didn ’ t shut up.” After Thompkins fell asleep,

T.H. found her cell phone, got dressed, and left the apartment

. T.H. testified that her

roommate picked her up

, and she called 9

- 1

- 1 after she arrived home.

Kerry Cantu, a police officer with the Beverly Hills Police Department, confirmed

that T.H. called police around 9:42 a.m. on November 3, 2012

. Cantu made contact with

T.H. at the hospital

, where she was undergoing a sexual assault examination. A lthough

T.H. did not know the name of her assailant

, she was able to provide information

concerning the general location of the apartment where the assault occurred and a

description of her attacker

. Cantu later determine d that Thompkins resided in the

apartment in question. T.H. identified Thompkins in a photo graph lineup about one week

later.

Michele Davis, a sexual assault nurse examin er

, testified that she performed the

sexual assault examination on T.H. at approximately 11:30 a.m. on November 3, 2012

.

Davis testified that T.H. appeared disheveled, wore torn, dirty clothes

, and had “ debris ”

in her hair. Davis observed “a lot of redness and [an] excoriation bilaterally” in T.H. ’ s

vaginal and anal regions

. Davis noted that T.H. ’ s vaginal area also “had a large amount

of feces

, ” which was “indicative of someone performing anal sex and then performing

vaginal sex afterwards.”4 Erin Casmus, a forensic scientist with the Texas Department of Public Safety

Crime Laboratory in Waco

, testified that two reports were issued in this case. The first

report only noted that no semen was detected from the vaginal and anal swabs collected

during the sexual assault examination. The supplemental DNA report testing skin cells

from the vaginal swab indicated the swab contained a “single source” DNA belonging to

T.H. The anal swab test results indicated a “ mixture ” of DNA sources were present

, but

Thompkins was excluded as a contributor.

At the State ’ s request, Casmus then did Y

- STR 3 testing on th e vaginal and anal

swabs. Casmus “obtained a partial Y

- STR profile ” from the vaginal and anal swabs and

determined that “ Thompkins could not be excluded as the contributor ” of either profile

.

Casmus, however, noted that the Y

- STR DNA contribution database contained

approximately 20,000 sources for comparison, and because the Y

- STR profile contained

low amount s of DNA

, several thousand unknown others also shared the contribution

profile s found in vaginal and anal swabs tested.

T wo unrelated complainants from prior sexual assault offenses involving

Thompkins also testified: A.C. and T.M. A.C. testified she was homeless when she met

Thompkins on October 27, 2012. A.C. said, “ [Thompkins] just started talking to

me

. . . [ and ] asked me if I wanted to go to his apartment with him and hang out for a little

while.” A lthough she did not know Thompkins

, A.C. said she accepted his invitation after

he offered to do drugs with her

. A.C. testified that Thompkins asked her to have sex with

him once they were at his apartment and told her “ that if [she] didn ’ t [,] he would beat the

3 Casmus explained that Y

- STRs are taken specifically from the male Y chromosome and analyzed

against an available sample for forensic comparisons . Y

- STR stands for a short tandem repeat on the Y

chromosome.5 shit out of [her]

. ” A.C. stated that Thompkins forcefully had vaginal and anal intercourse

with her for “[h]ours

, ” and she escaped by using Thompkins’s phone to call 9

- 1

- 1 under

the guise of calling a drug dealer. 4 A.C. testified that, w hen police arrived, she ran out

half

- naked and hugged the officer. A.C. said she was ultimately arrested for possession

of paraphernalia. The officer, Lester Williams Jr.

, testified he arrested both A.C. and

Thompkins that morning

, and he recalled A.C. being “very happy to go to jail.” According

to Williams, “ [ S ] he just wanted to be out of there.”

T.M. testified she met Thompkins on May 11, 2013, when she was “smoking crack”

with a friend, and “ he offered to go hang out and get high.” Thompkins took her to a

church

, where it appeared he was living

. T.M. testified that a fter the two did drugs

,

Thompkins propositioned her for sex, and she declined

. T.M. testified, “[Thompkins] pretty

much told me that

— what I was going to do [,] and if I chose not to [,] what the

consequences were going to be.

. . . He ’ d break my neck or blow my head off.” T.M.

testified that Thompkins took her phone away and forcefully penetrated her vaginally and

anally “for hours.” When Thompkins “passed out,” T.M. “grabbed a sheet and ran.” T.M.

flagged down a vehicle in the early morning hours

, and a passenger in the vehicle called

9

- 1

- 1. Teresa Pankonien performed the sexual assault examination on T.M

. Pankonien

testified at trial tha t she noted T.M. had sustained “acute genital injuries .”

Thompkins testified that T.H.

, A.C.

, and T.M. were all prostitutes and d enied

sexually assaulting any of them

. Thompkins said he used to spend his weekends high on

crack cocaine in the company of prostitutes. When asked by his trial counsel what e ffect

,

if any, his drug use has had o n him, Thompkins responded : “ It makes me paranoid. I hear

4 The 9

- 1

- 1 call recording s were admitted into evidence.6 things, think things are coming, things are going to happen. Sometimes it gives you the

impression that you want to have sex.”

Thompkins testified that he had gone to a motel looking for a prostitute when he

met T.H. on November 2, 2012

, and she had just been “with another trick .” Thompkins

testified that he and T.H. went back to his apartment

, smoked, “watched pornos,” drank

alcohol

, played cards, and talked about her “job history” and children until 3 a.m.

, when

they fell asleep “in the same bed, side by side, dressed.” Thompkins explained he had

been too tired to have sex. According to Thompkins, after the two woke up the next

morning

, T.H. was worried that she would be late for work, so he tried arrang ing a ride for

her

. Thompkins said he ended up walking her out and was with her until around 10 a.m.,

when he returned to his apartment.

Regarding A.C.

, Thompkins testified that “she agreed to spend the night in

exchange for drugs.” Thompkins stated he and A.C. never had sex although they

“ attempted to have sex a couple of times, but these [sic] were attempts to steal [his] items,

get [his] clothes off so she could get [his]

, you know, stereo

. . . .” Thompkins was unable

to explain why he and A.C. were unclothed when police arrived.

Thompkins maintained that of the three women accusing him of sexual assault, he

only had sex with T.M.

, and it had been consensual. When questioned about whether his

drug usage could have affect ed his perception of his interactions with T.H.

, A.C.

, and

T.M.

, Thompkins responded:

Because it triggers you to thinking that this is what you want to do. I ’ ve just

always been comfortable in the presence of a woman. I ’ ve heard some

horrible stories, guys being together, homosexual activity. That stuff just

don ’ t [sic] interest me. So I just

— it ’ s just I ’ ve always been comfortable being

with a woman. But it ’ s never always a sexual thing. I just don ’ t perform when

I ’ m on it sexually. It just never happened. If I don ’ t do it before, then it ’ s just7 not going to happen. And I ’ ve never preyed upon anybody or used drugs to

try to take advantage of anybody

. . . .

During cross

- examination, Thompkins acquiesced to the existence of several other

sexual assault allegations involving different complainants in 2002 and 2006, and three

prior domestic violence assault convictions involving three separate complainants

— “ One

was a friend, one was a cousin, one was a girlfriend. ”

Thompkins called three witnesses to testify for his case

- in

- chief : Curtis Cole,

Jermaine Anderson

, and Dinesha Anderson

. Cole

, the father of one of T.H. ’ s child ren

,

briefly testified that T.H. ’ s reputation was “no good.” The Anderson s testified they had

picked up Thompkins and an unknown female and dropped them off at Thompkins ’ s

apartment on the evening in question

. Jermaine testified he thought Thompkins and the

woman “ were together

, ” and the woman inexplicably got his number and proceeded to

call him “ constantly ” all night up until “7:00 or 8:00 that morning

. ” 5 I n one particular

voicemail left that evening

, the Andersons testified they could hear what sounded like two

people having sex. Dinesha testified that the voicemail call came from Thompkins’s cell

phone number.

The jury returned a guilty verdict

.

B. Post

- Conviction Matters

Thompkins appealed his conviction

, and o n January 7, 2016, our sister court

issued a memorandum opinion, affirming the trial court ’ s judgment

. Thompkins v. State

,

5 During Thompkin s ’s testimony, he identified Jermaine as a coworker and “dope” seller.

Thompkins testified that he called Jermaine several times throughout the day and evening “trying to get his

[sic] dope” and said that he recalled T.H. calling Jermaine too when she was looking to get a ride back

home.8 No. 10

- 14

- 00363

- CR, 2016 WL 102851, at *1 (Tex. App.

— Waco Jan. 7, 2016, pet. ref ’ d)

(mem. op.

, not designated for publication ).

On June 29, 2020, Thompkins filed his motion for DNA testing under Chapter 64,

seeking the “reexamination of the complete sexual assault ki[t].” See T EX

. C ODE C RIM

.

P ROC

. A NN

. art s

. 64.01

– .03

. Thompkins contend ed that (1) the evidence remains testable,

uncompromised, and in the possession of the district clerk ’ s office ; (2) the perpetrator ’ s

identity is at issue in this case; and ( 3 ) although “DPS determined that there was not were

[sic] large enough samples obtained to create a full DNA profile and match [Thompkins],”

“ a more sensitive test will establish the identity of another perpetrator.” The State

countered that identity was not an issue in this case because Thompkins concede d to

being with T.H. on the evening the offense occurred ; the presence of another individual ’s

DNA would not exclude Thompkins as a perpetrator in this offense ; and a jury had

convicted Thompkins despite the State’s undisputedly “weak” DNA evidence

.

On September 24, 2020

, a hearing was held on Thompkins ’ s Chapter 64 motion

.

The State and Thompkins ’ s counsel appeared via teleconference. Thompkins was not in

attendance

, and no witnesses were called

. T he trial court denied Thompkins ’ s motion

without making any written findings

. T his appeal followed.

I I

. D ISCUSSION

T here exists “ no free

- standing due

- process right to DNA testing

. ” Ramirez v. State

,

621 S.W.3d 711, 717

– 18 (Tex. Crim. App. 2021) ( citing Ex parte Gutierrez

, 337 S.W.3d

883, 889 (Tex. Crim. App. 2011))

. Rather, C hapter 64 of the Texas Code of Criminal

Procedure provides that a convicted person may submit a motion to the convicting court

to obtain post

- conviction DNA testing

, and a convicting court may order forensic DNA9 testing only if the statutory preconditions of Chapter 64 are met

. T EX

. C ODE C RIM

. P ROC

.

A NN

. art. 64.01; Ex parte Gutierrez

, 337 S.W.3d at 889. Pursuant to Chapter 64, the

convicting court must order DNA testing if the court finds that:

1. the evidence still exists and is in a condition making DNA testing possible;

2. the evidence 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;

3. t here is a reasonable likelihood that the evidence contains biological

material suitable for DNA testing; and

4. identity was or is an issue in the case.

Ex parte Gutierrez

, 337 S.W.3d at 889 (quoting T EX

. C ODE C RIM

. P ROC

. A NN

. a rt.

64.03(a)(1) ( cleaned up ) )

. Additionally, the convicted person must establish by a

preponderance of the evidence that: (1) he “would not have been convicted if exculpatory

results had been obtained through DNA testing; and” (2) “the request for the proposed

DNA testing is not made to unreasonably delay the execution of sentence or

administration of justice.” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03 ( 2 )( A ) , (B) ; State v.

Swearingen

, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014). “ [T] he appellant must show that,

more likely than not, []he would not have been convicted had the jury been able to weigh

evidence that []he did not deposit biological material on the [ complainant ] against the

balance of the evidence presented at trial. ” Holberg v. State

, 425 S.W.3d 282, 287 (Tex.

Crim. App. 2014)

. “The required showing has not been made if exculpatory test results

would ‘ merely muddy the waters. ’ ” LaRue v. State

, 518 S.W.3d 439, 446 (Tex. Crim. App.

2017) (quoting Rivera v. State

, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002)).

Generally, i n reviewing a trial court’s ruling on a Chapter 64 motion, we give almost

total deference to the trial court’s “resolution of historical fact issues supported by the10 record and application

- of

- law

- to

- fact issues turning on witness credibility and demeanor”

and “ consider de novo all other application

- of

- law

- to

- fact questions. ” Ramirez

, 621

S.W.3d at 718. W here , as here

, there are no findings of fact or conclusions of law from

this DNA proceeding in the record, we infer findings necessary to support the trial court’s

ruling so long as they are reasonably supported by the record. Dunning v. State

, 572

S.W.3d 685, 692 (Tex. Crim. App. 2019); see also Nious v. State

, No. 13

- 17

- 00482

- CR,

2018 WL 6815496, at *2 (Tex. App.

— Corpus Christi

– Edinburg Dec. 27, 2018, no pet.)

(mem. op., not designated for publication).

Both Thompkins and the State discuss the applicability of Blacklock v. State

, 235

S.W.3d 231, 233 (Tex. Crim. App. 2007) and Esparza v. State

, 282 S.W.3d 913, 922

(Tex. Crim. App. 2009) at length in their respective briefs

. In Esparza and Blacklock

, the

Texas Court of Criminal Appeals held that the appellant’s motion for DNA testing

sufficien tly showed that identity had been at issue in their respective cases and that

exculpatory DNA tests would prove their innocence

. Esparza

, 282 S.W.3d at 922 ;

Blacklock

, 235 S.W.3d at 233

. In Blacklock

, the c ourt observed that “DNA testing of

semen from the victim ’ s vaginal smears was inconclusive ,” and the appellant had alleged

in his Chapter 64 motion that there was “no indication

. . . that [ the State ] tested the

semen” found on the complainant’ s pants and underwear. Blacklock

, 235 S.W.3d at 2 32

(alteration in original)

. The c ourt concluded that

, given these facts, whether “ the victim

testified that she knew appellant and identified him as her attacker is irrelevant to whether

appellant ’ s motion for DNA testing makes his identity an issue ” and ordered additional

testing. Id. at 233.11 “ Adhering to Blacklock ,” the c ourt in Esparza determined that Esparza had

sufficiently showed identity was at issue because the “ record establishes that

[ complainant’ s ] attacker deposited semen or seminal fluid inside [the complainant] during

the assault ” ; there was testimony that “semen was found on the swab but that it was

inconclusive” ; and there was no contrary evidence to “support the conclusion that DNA

evidence recovered from [the complainant] would belong to someone other than

Esparza

. ” Esparza

, 282 S.W.3d at 917, 92 1

– 2 2

.

The facts before us differ from those before the c ourt in Esparza and Blacklock

.

See Esparza

, 282 S.W.3d at 922 ; Blacklock

, 235 S.W.3d at 233

. Here, there was no

evidence presented that Thompkins ejaculated, semen was not observed during T.H. ’s

examination

, 6 and there was no semen or seminal fluid detected in either of the smears

collected ; therefore, unlike in Esparza and Blacklock

, there is no semen to test and

exclude Thompkins as a source from

. See Holberg

, 425 S.W.3d at 287 ; cf. Esparza

, 282

S.W.3d at 922 ; Blacklock

, 235 S.W.3d at 233

.

T he only biological material recovered here were skin cells , and more notably, the

results of testing those cells indicated the presence of other contributors. The initial testing

of th e vaginal swab produced a “single source DNA profile

, ” which was “consistent with

the DNA profile of [ T.H. ], ” and the anal swab produced a “partial DNA profile” that was

“consistent with a mixture”

— from which Thompkins was excluded as a contributo r

.

Cas mus testified that s he could “ see that there is probably someone else in that [anal

6 Davis testified that T.H. refused the speculum vaginal examination , citing excess pain, so Davis

was unable to examine T.H.’s “fossa navicularis,” which Davis described as a “little cup inside” of the vagina

that “usually holds a [] lot [of] semen if they've ejaculated

. ” Davis made no note regarding a presence of

semen oth erwise

.12 swab] sample

, ” but the “ low level of data present” precluded further comparison testing.

F ollowing additional testing, wherein the isolated DNA was analyzed using Y

- STR testing

,

Thompkins was no longer able to be excluded as a possible DNA profile contributor

. Even

so, Cas mus opined that the statistical link was wea k because “[m] ore people could

potentially be the contributor .” Cas mus explained that the Y

- STR database contained

approximately “ 20,000 [contribution] samples,” and t he vaginal swab results in di cated “the

selected profile is found in 1,880 of 28,088 total individuals within the database

. ” Similarly,

though Thompkins could not be excluded as a contributor from the anal swab tested, the

selected profile detected was “found in 11,536 of 28,367 total individuals within the

database.”

U nlike the juries in Esparza and Blacklock

, the trier of fact here was already

presented with DNA evidence that potentially exculpated Thompkins and rejected it

. Cf.

Esparza

, 282 S.W.3d at 922 ; Blacklock

, 235 S.W.3d at 233 ; s ee Swearingen

, 424 S.W.3d

at 39 (affirming the trial court ’ s denial of a Chapter 64 request because “ the jury already

was aware that an unidentified male ’ s DNA was found under the victim ’ s fingernails” and

“disregarded” the results, so there was “no reason to believe that it would be any different”

following additional testing) ; s ee generally Dist. Atty ’ s Office for Third Judicial Dist. v.

Osborne

, 557 U.S. 52, 80

– 81 (2009) (Alito, J., concurring) (“ DNA testing

— e ven when

performed with modern STR technology

, and even when performed in perfect accordance

with protocols

— often fails to provide ‘ absolute proof ’ of anything. ”).

Thus , w e are unconvinced that additional testing of the skin cell s yielding the

presence of another DNA donor would overcome the substantial evidence of Thompkins’s

guilt. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 64.03(2)(A) (requiring that the convicted13 person establish by a preponderance of the evidence that he “ would not have been

convicted if exculpatory results had been obtained through DNA testing”) ; Swearingen v.

State

, 303 S.W.3d 728, 736 (Tex. Crim. App. 2010) (“ T exas courts have consistently held

that a movant does not satisfy his burden under Article 64

. 03 if the record contains other

substantial evidence of guilt independent of that for which the movant seeks DNA

testing

. ”); Bell v. State

, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (concluding that

appellant ’ s “ bare assertion that the biological samples in question might belong to

someone else ” was “not enough” to constitute affirmative evidence of appellant ’ s

innocence ). T he evidence indicating guilt independent of the State’s DNA evidence

included : (1) T.H. ’s testimony that Thompkins had sexually assaulted her;

(2) Thompkins ’s testimony that he had sought prostitution services from T.H. on the

evening of the alleged assault and that he had been with her for the entire evening ;

( 3 ) Thompkins ’ s two witnesses testifying that they heard a voicemail comprised of sex

noises left by Thompkins on the same evening; and ( 4 ) Thompkins ’s established history

of committing assaultive offenses against women. See Swearingen

, 424 S.W.3d at 39 ;

see also

, e.g.

, Wilson v. State

, 185 S.W.3d 481, 485 (Tex. Crim. App. 2006) (concluding

that “ [e] ven if we accept the premise that identity is an issue, ” “ there was ample evidence

from a variety of sources ,” including appellant’s “ history of abduction and sexual assault ”

and testimony verifying his presence in the complainant ’ s apartment complex; therefore,

“the trial court did not err in denying relief ”); Flores v. State

, 491 S.W.3d 6, 10 (Tex. App.

—

Houston [14th Dist.] 2016, pet. ref ’ d) (“Even if we were to infer from the results that

another person was present at the time of the shooting, this inference alone ‘ would not

factually exclude the appell[ant] from having killed [ the victim ] ’ and would not demonstrate14 a reasonable probability of acquittal.”); Morris v. State

, 110 S.W.3d 100, 103 (Tex. App.

—

Eastland 2003, pet. ref ’ d) (concluding identity was not an issue when appellant admit ted

he was with the victim at the time of alleged assault ).

W e conclude that the trial court ’ s denial of Thompkins’s motion for post

- conviction

DNA testing is supported by the record

. See Dunning

, 572 S.W.3d at 692

. The trial court

did not err in denying Thompkins’s motion, and Thompkins’s sole issue is overruled.

III. C ONCLUSION

We affirm the trial court ’ s order denying further DNA testing

.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

26th day of August

, 202 1

.