## In the Court of Appeals Secon d Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 23

- 00195

- CR

____ ____ ________ ___________

On Appeal from the 211th District Court Denton County, Texas Trial Court No. F15

- 1103

- 2 11
Before Sudderth, C.J.; Bassel and Wo mack, JJ. M emorandum Opinion by Chief Justice Sudderth 

### R AYMOND 

### E DWARD 

### L UMSDEN 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION In 2016, Appellant R aymond Edwar d Lumsden was con victed of a ggravated sexual assault of a child, indecency with a child, and criminal solici tation of a minor , and the trial court s entenced him to thre e consecutive life sentences

. 1 S ince the n, he
has filed numerous moti ons reque sti ng postconviction forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure , all of which have been denie d. 2
Lumsd en , acting pr o se, now appeals from the trial court ’ s denial of his fourth motion for postconviction forensic DNA testing and his request for the appointment of

couns el. W e will affirm.
I. B ACKGRO UND
T he underlying facts of this c a se have been discussed in detail in our prior opin ions

. See Lumsden II

, 2021 WL 4319602 , at * 1

– 5 ; Lumsden I , 564 S.W.3d at 866

– 7 4

. Therefo r e, we borrow the pertinent facts from them , summarizing where
ap propriate

.

1 We affirmed his conviction s and sentences o n direct appeal. S e e gen erally Lumsden v. State , 564 S.W.3d 858 (Tex. App.

— Fort Worth 2018, pet. r ef ’ d) ( Lumsden I )

.

2 We previously affirmed the trial court ’ s deni al of Lum s den ’ s second and third motions for postconviction DNA testing. See generally Lumsd en v. S tate , No. 02

- 21

- 00012

- CR , 2021 WL 4319602 (Tex. App.

— Fort Worth, no pet.) (mem. op., not designate d for publicat ion) ( Lumsden II )

.3

A. The Assault Allison, 3 Lumsden ’ s then

- girlfriend ’ s elementary

- aged daughter , accused
Lumsden of sexuall y assaulting her

. She testified that after her mother start ed dating
Lu msden, they moved in with him and that she had her own room at Lumsden ’ s house. Allison accused L umsden of sexual ly assault ing her one night wh ile her mother was upstairs sleeping. She told her mother abou t the assault th e next morning
and re counted the allegations to a SANE 4 nurse and a fore nsic interviewer

. B. The D NA Evidence
The SANE nurse “ swabbed Allison ’ s mouth, vagina, anus, and fin gernai l area and combed through her hair to collect biological evidence. ” Lumsden II , 2021 WL 4319602, at *2 (quot

ing Lumsden I

, 564 S.W.3d at 870 ). T he State ’ s for ensic DNA expert was C hristina Capt , a forensic DNA analyst wi th the Univer sit y of North
Texas C enter for Human Id en tifica tion. [ S he ]

. . . testif ied that the vaginal swa bs that had been taken from Allison were used to develop an unknown Y STR profile. The buccal swabs from Lumsden were used to develop a known Y STR profile. Capt explained that the profile developed for Lumsden was compared to the profile from Allison ’ s vaginal swab , and “at all nine locations where we obtained data for the vaginal swab, there was an exact match with the

3 I n our p rior opi nions, we used pseudon yms to refer to the complainant, her mother, and all minors. See Tex . R. App. P. 9.10(a)(3); McC l endon v. St ate , 643 S.W.2d 93 6, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982). We use those same pseudonyms here

.
4 S ANE stands for S exual A ssault N urse E xaminer

. Lumsden I , 564 S.W. 3d at 868.4

alleles detected in Raymond Lumsden ’ s profile.” Capt testifie d that she was thus not able to exclude Lumsden from being a contributor t o the unknow n Y STR profile found in Allison ’ s vaginal swabs. Capt furth er testified that six out of 10,000 people would have the same nine markers that were located in this case an d that no other male contributors were detected on any of the items that w ere tested.

. . . . Lumsden admitted that he could not explain the DNA evidence. Id. ( quoting Lumsden I

, 564 S.W.3d at 8 72

– 74).
After Capt ’ s tes ting, Lumsden had the vaginal and anal swabs re analyzed by his own expert, Suzanna Ryan at Ryan Forensic in C alifornia. Because Ryan did not testify at tr ial, her report was not admi tted in to evi dence. B ut her re port was attached

as an ex hibit to Lum sden ’ s third motion for DNA testing an d included findings
similar to C apt ’ s: No male DNA results were obtained fr om the ampli fic ation of the anal swab sample. In fact, no male DNA at all was detected during the quantitation stage of analysis. The male quanti tation system in use at the UNT la boratory is quite sensitive

- capable of detecting the DNA from about 3 or 4 cells ’ wor th of DNA, yet no male DNA was detected from this sample.

. . . A low

- level, partial, male profile has been detected in the vaginal sw ab sample. Re

- analysis of the dat a at a lower analytical threshold than used by the UNT laboratory reveals t he possible presence of more than one male individual

. . . . However, a major male profile is present[,] and this profile is consistent with Mr. Lumsden and with any paternally re lated male individual.5

Id. at *3. In her report, Ryan also discussed the p ossib ility o f second ary DNA
transfers

— a theory that is central to Lumsden ’ s argument for addit ion al DN A testing. Regarding such secondary transfer s , Ryan op ined as follows:
4. The amount of male DNA detected on what has been labeled as the vaginal swab is very low le vel[,] and there is no way to deter mine, through DNA testing, whether the DNA was deposited via a direct contact or through an indirect (secondary) transfer. Considerin g that [Allison] and Mr. Lumsden [had been] residing in the home together fo r several mo nths[,] there are many ways in whic h the DNA located in [Allison ’ s] vaginal area could have transferred here. It is known that DNA can transfer from person to person or from person to object through a direct contact. The amount of DNA that can transfer thr ough direct contact varies from per son to person but can range from no detectable DNA all the way up to 160 nanograms (Kamphausen) or 169 ng (Daty et al. ). It has als o been illustrated through various peer

- reviewed journal articles (Cale et al. , for exampl e) that DNA can transfer secondaril y, through an intermediary. This can be from person to person to object or from person to object to person. An example would incl ude the transfer of Person A ’ s DNA to Person B ’ s hands through a hug or handshak e (direct tr ansfer). Person A ’ s DNA would then be available for further transfer onto an object that is touched by Person B (a cell phone, a d oor knob, a weapon) or even onto
a nother location on Person B ’ s body. For example, if Person B touched [his] face, neck, or ge nital area, it has been shown by Gr aham and Rutty and by Jones et al. among others that DNA can transfer from a person ’ s hands to other areas on [his] bod[y]. Secon dary transf

er can also occur from person to object to person. An example of this sort of tra nsfer could be if Person A dried [h is] hands on a towel, thus transferring [his] DNA to the towel (primary transfer). If Person B then used that same towel to dry [her] hand s or body, [she] could inadvertently transfer some of Person A ’ s DNA to [her] body during the drying process. Secondary transfer of blood, saliva, vaginal secretions, and semen (as well as possibly skin cells) c an also occur in the laundering pr ocess as de scribed by Noël et al. and Kamphausen et al. (2015) who both6

observed t ransfer of b ody fluids onto clean cloth ing items during the laundering process. Noël et al. found in their research that underwear of girls in volunteer family groups consist ently demon strated the presence of DNA from all members of the family, including t he father, m other, and siblings. Y

- S TR testing would make it even more likely to detect [a] male family member ’ s DNA on a female family mem ber ’ s underwear since it ignores t he presence of female DNA. In this case, since the laboratory did not analyze the u nderwear, it is unknown whether Lums den ’ s DNA is also present on [Allison ’ s] underwear as “background” DNA from living in the same home as Lumsden and his male child. Any D NA present on [Allison ’ s] underwear could easily transfer to her vaginal area while she was wear ing the underwear. The p ossible low

- level presence of more than one male individual at two loci could be further proof of som e sort of secondary DNA transfer e vent. 5. Si nce a low amount of male DNA was detected in an excess of female DNA, Y

- ST R testing ha d to be conducted in thi s case in order to obtain any usable DNA results. However, Y

- STR testing is different than tradition al autosomal testing in that even when a full DNA profile is obtained, the lab can ’ t identify one individual to the excl usion of all others. Due to the pate rnal inheritance of the Y

- chromosome, Mr. Lumsden ’ s son (in fact, all of his paternal male relatives ) would have exactly the same Y

- ST R profile[, ] and it would be impossible to differentiate between the two individuals [ ’ ] DNA based upon Y

- STR testing. Cons idering this fact, it cannot be stated with any certainty that Lumsden ’ s DNA is truly present in th e vaginal area of [Allison]. Firs t, only a p artial profile has been obtained. If any of the 8 loci where no results were obtained hap pened to not be consiste nt with Lumsden, he would be 100% excluded as a possible contributor to the DNA profile. In addit ion, the DNA detected on the vagin al swab cou ld just as easily be from a secondary transfer event involving Lumsden ’ s son ’ s DNA. If the two children shared a b athroom, bedroom, hamper, or other communal items[,] it would be very easy for DNA from Lumsden ’ s son to be picked up on [Allison ’ s] hands or clothing and be further transferred to her vaginal area.7 The longer a person l ives in a pa rticular home, the more of [his] DNA we would expect to find. Touch DNA can last for extended periods of time indoors wi th one study indicating full “touc h” DNA profiles obtained up to 6 weeks after deposition (Raymond et al. ). This was the lon gest time pe riod studied, so it is q uite likely, and supported by anecdotal evidence, that touch or transfer DNA can remain for even longer time periods. 6. In this c ase it is impossible to determine how the male DNA arrived on the vaginal area of [Allison ] (primary o r secondary transfer)[,] and it is impossible to determine exactly whose DN A is actually present due to the partial Y

- ST R profile and the paternal inherit ance demonstrated with Y

- STR typing

. It should be noted that the probability of randomly s electing an unrelated Caucasian indi vidual who could also be a contributor to the partial profile obtained from the vaginal swab sa mple is 1 in 2,457 and, if even on e of the 8 loci where no results were obtained is found to be inconsistent with Mr. Lumsden ’ s known DNA profile[,] he would be eliminated as a possible contributor to the DNA detected in this sample. Id. at *3

– 4.
C. Lum sden ’ s Postconvict ion Mot ions
Soo n a fte r we aff

irmed his conviction s and sentence s , Lumsden filed his first

mot ion for DNA t esting, whic h the trial court denied in April 2019.
T he follow

ing April, Lumsden filed an application for w rit of habeas corpus. In August 2020, the trial court r ecommended that the application be denied, and the Court of Criminal Appeals d enied it with out a writte n order in June 2021.
In November 2020, Lumsden filed his secon d and third motions for DNA testing in which he sough t testing of the victim ’ s underwear that had not been previously tested and retesting of the vaginal swabs

. T he t rial court denied both8

motions in a single order , and a s previously n oted, w e affirmed this o rder on appeal.
See id. at *13.
L umsden filed a second application for writ of ha beas corpus in April 2022 and

a third such application in June 2022. H is second applicat ion was d eni ed in July 2022 , and his thir d application was dismissed one we ek later.
I n April 2023, Lumsden filed his fourth moti on for DNA testing in wh ich he again sought t esting of the victim ’ s underwear as well as the untested DNA swabs
i nside t he sexual

- as sault kit

. Without holding an evidentiary hearing, t he trial court issued an order, which contained findings of fact and concl usions of law, denying the
motion. This appeal followed.
II. D ISCUSSION
In two issue s , Lum sden argues that the trial court erred by (1) denying his
fourt h motion for DNA te st ing and (2) de nying his motion for the appointment of
counsel

. Lumsden ’ s argum ents are meritless.
A. Standard of Review
When reviewi ng a trial court ’ s ruling on a motion for DNA testing pursuant to
C hapter 64 of the Texas Code of Criminal Procedure , we apply a bifurcated standard
of re view. Reed v. State , 54 1 S.W.3d 759 , 768 (Tex

. Crim. App. 201 7) ; Rivera v. S tate , 89 S.W.3d 55, 59 (T ex. Crim . App. 20 0 2)

. Under t h i s s tandard, “ w e give almost total deference to the judge ’ s resoluti on of histo rical fact issues supported by the record and applicati on []

- of

- law

- t o

- fact issues turning on witness credib ility and demeanor , ”9

b ut “ we review de novo all other appl ication

- of

- l aw

- to

- fact questions. ” Reed , 541
S.W.3d at 768

– 69.
B. Cha pter 6 4
Under Chapter 64 , a convicted pe rson may file “ a motion for forensic DNA testing of evidence

. . . con tainin g biological material.” Tex. Code C rim. Proc. Ann.

art. 64.0 1(a

- 1). Su ch a mot ion req uests test ing of evidence that wa s in the State ’ s possession during trial and that eithe r was not previously tested or, although previously tested, can be tested w ith ne w er techniques that would provide more “accurate and pro bative” r esults

. Id

. a rt . 64. 01(b) (2)(A) ; see Holberg v. State , 4 25 S.W.3d 282, 284 (Tex. Crim. App. 2014). A convi cting court may o rder testing only if (1) the
evidence “still exist s and is i n a conditio n making DNA testing possible ” ; (2) the
evidence “has be en s ubjected to a chain of cus tody sufficient to establish that i t has not been substituted, tampered with, replaced , or altered in a ny material respect ” ; and (3) “identity was or is an is sue in the c ase.” Tex. Code Crim. Proc. Ann. art.
64.0 3(a)(1); Holberg

, 425 S.W.3d at 2 84. Addit ional ly , to p revail on a Chapter 6 4

mot i on , a convicted person must prove by a preponderanc e of the evidence that he

“ would not have been convicted if ex culpa tory results had been obtained through DNA testing ” and that “the request for the propos ed DNA testing i s not made to unreasonably delay t he execution of [the convicted person ’ s ] sentence

. ” Tex. Code
Crim. Proc. Ann. art. 64.03(a)( 2 ); Holberg , 425 S. W.3d at 284

.10

C. Analysis
1. The Trial Court Properly Denied Lu msden ’ s Motion for DN A Testing
In his fourt h m otion for DNA testing, Lum s den sough t testing of the victim ’s
underwear that had n ot been previous ly tested and “untested DNA swabs inside of
the sexu al as s ault kit. ” T he crux of Lumsd en ’ s argument for additiona l testing is that
if an other ma le profile were found , this would not only prove th at a secondary or tertiary DNA transfer occurred but also would support Lumsden ’ s the ory that th e presence of his DNA on the vagi nal swab could be explaine d by su ch an “innoc ent” secondary or ter tiary transf er
. 5
This argument is just a slightly modified version of the one we rejected in our opinion affirming the trial court ’ s den ial of Lumsden ’ s second and third motions for
DNA test ing

. T here, Lumsden arg ued “ that DNA testing on Allison ’ s underwear

w [ould] uncover his and his son ’ s DNA ” and that this would show that Lumsden ’ s

“ DNA on the vaginal swab came from the DNA on the unde r wear via ‘ innocent ’ secondary transfer in the laundry

. ” Lumsden II , 2021 WL 4319602 , at *10. How ever,

as we explained, even assuming that DNA testing on Allison ’ s underwear would reveal that it contains Lumsden ’ s DNA, we cannot make the leap, as Lumsden does,

5 As shown below, Lumsden ’ s innocent transfer theory re lies on a t ertiary transfer ( i.e., perso n to object to object to pers on) , but he has not pr e sented any evidence of studies documenting such transfers

. Lum sden II , 202 1 WL 4319602 , at *1 1

.11

that the presence of his DNA on the underwear w ould prove that his DNA on the vaginal swab w as there mer ely because his underwear transferred DNA to Allison ’ s underwear via the laundry and that her underwear in turn transferred his DNA to her vagina

. Although Ryan opines in her report that such transf ers are possible, she su pports her opinion wi th summaries of studies and a rticles that deal with finding DNA and sperm only on female underwear that had been washed with underwear from male family membe rs. She does not describe any study in wh ich the fema le in the prior studies and articles had a va ginal swab t aken after wearing the laundered underwear and that the vaginal swab showed the presence of the male family members ’ DNA. Additionally, Ryan ’ s r eport mentions that person

- to

- object

- to

- pe rson transfe rs are possible. But fo r Lumsden ’ s DNA to be transferred to Allison ’ s vagina according to Lumsden ’ s alleged “innocent transfer theory,” it would be in the nature of person (Lumsden) to object (his unde rwear) to object (Allison ’ s underwear via the laundry) to person (Allison ’ s va gina). Neither the a rticles atta ched to Lumsden ’ s sec ond motion nor the articles described in Ryan ’ s report describe studies of such attenuated DNA transfers. The trial court w as therefore free to believe the evidence presented at trial and to conclude t hat DNA testing of Al lison ’ s unde rwear would not exoner ate Lumsden but would likely reveal the presence of his DNA

— not due to an innocent transfer via the laundry but because he put his finger in her underwear when he to uched her
va gina. Id. at *11. Thus, f

inding a third DNA profile on A llison ’ s underwear or vaginal swabs
would not prove Lumsden ’ s innocent tran sfer the ory, which is premised o n the

occurrence o f a heretofore undoc umented tertiary DN A transfer

. See id. A ny possible third

- party DNA on the u nderwear or swabs w ould not neg ate the fact that
Lumsden’s DNA was found on Allison’s vagina

. Therefore, e ven if we were to accept Lumsden ’ s premise that the presence of third

- p arty DNA would prove t hat secon dary

or ter tiary DNA tr ansfers are possible, th e reque ste d testing could not r ule out the possib ility that Lumsden ’ s DNA was found on Allison ’ s vagina because he sexually12

assaulted her. Accordingly , the requested testing wou ld , at most, “merely muddy the

waters ” ; it would not e x culpate Lumsden. S ee E ubanks v. State , 11 3 S.W.3d 562 , 565 (Tex. App.

— Dallas 2003 , no pet.) ( “ A trial court does not err in denying post

conviction DNA testing where, at most, exculpatory DNA tests wo uld ‘ merely muddy
the waters. ’ ” ( quoti n g K

utzner v. St ate , 75 S.W. 3d 427, 439 (Te x. Crim. App. 20 02))).
Fu rther, even if we were to a ssume that the testing would show th e results that Lumsden sugge sts, he has never theless failed to carry his burd en unde r Article 64.03
because the record contain s othe r subs tantial evidence of guil t
. See Tex. Code C rim.
Proc. A nn. art. 64.03(a)(2)(A) ; Swearingen v. St ate , 303 S. W.3d 728, 73 6 (Tex. Crim. App. 2010)

. A s we de tailed in our pri or opi nion , the record reflects that:

• Allison told her mothe r, [the S ANE nurse] , and the forensic examiner th at Lumsden had touc hed her priv ates; Allison did not mention being touched on her privates by any other male.

• During Allison ’ s physical exam, [the S ANE nurse] noted “generalized redness” that covered Allison ’ s vaginal ar ea.

• [The SAN E nurse] testified that the redness on Alli son ’ s vagina was consistent with Allison ’ s statement that Lumsden had put his finger there.

• Lumsden was the only male in his lineage who was present at the hou se on the night in question; his son was n ot home.

• And Lumsden could not be ex cluded as a contrib utor to the male DNA that was found on the vaginal swab. Lumsden II

, 2021 WL 4319602 , at *11. G iven t his evid ence and the lack of support for
the multitudinou s DNA transfers that Lumsden alleges occur red here , Lu msden has13

not demonstrat ed by a pr eponderan ce of the ev idence that, even if exculpatory results were obtained, there exists a greater than 50 percent likelihood that he would not have
been convicted. S ee Tex. Code Crim. Proc. Ann. art. 64.03(a )(2)(A) ; Ex parte Gutierrez , 337 S.W .3d 883, 899 (Tex. Crim. App. 2 011) ( “ [A] convicted person is not entitled to DNA testing unless he first shows that there is ‘ greater t han a 50% chance that he
would not have be en convicted if DNA testing provided excul patory resul ts
. ’ ” (quoting Prible v. State , 245 S.W.3d 466, 467

– 68 (Tex. Crim. App. 2008) ) ); see also Swearingen , 303 S.W.3d at 736 ( “ Texas courts have consistently held that a movant does not satisfy his burden un der Artic le 64.03 if the recor d contains o ther substan tial evidence of guilt

. . . . ” ) ; Thompson v . State , 95 S.W.3d 469, 472 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref

’ d ) ( holding t hat the movant did not establish that DNA testing would produce exculpa tory resu lts when ot her competent evidence was availab le to show that he commi tted the offense )

. Accordin gly , the trial court did not err by denying Lumsden ’ s request for DNA testing

. W e overrule Lumsden ’ s first issue.
2. The Trial Court Properly Denied Lums den ’ s Re ques t for Appointed Co unsel In h i s secon d iss ue , Lu msde n asserts tha t the tria l cou rt ab used its dis cretion by denying his request for the appoint ment of counsel during his C hapter 64 proceedings. We disagree.14

A convicted person d oes not have an “ absolute ” right to appointed counsel in

c onnection wi th a C hapter 64 request for DNA test ing

. G utierrez v. State , 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) . Rather, i f a convicted person intends to file a
motio n for post conviction DNA testing, the tria l court is only required to appoint

counse l to the app licant if (1) the applic ant tells the trial court that he wishes to apply for post conviction DNA testing; (2) the trial court finds “reasonable grounds” for the application to be filed; and (3) the tria l court determines that the applicant is i ndigent.
Te x. Code Crim. Proc. Ann. art. 64.01 (c )

. In short, enti tlement to court

- appointed
counsel in this context is conditioned on the trial court ’ s finding, in relevant part, that “reasonable grounds” exist f or filing the motion for post conviction DN A testing. Gutierrez , 307 S.W.3d at 321

. Here, Lumsd en ’ s motion

— h is fourth request for postconviction DNA testing

— asked to test the same evidence as his prior motions and mad e essentially the same arguments th at had previously been rejected by both the trial court and this

court
. Further , for the reason s set forth above, Lums den ha s failed to carry his
burden to show by a preponderance of th e evidence that he would not have been convicted if the results of the request ed DNA testing had been availab le at trial

. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A)

. Beca use Lumsden has not shown

“ r easo nabl e grounds ” for the filing of his C h apter 64 motion, the trial court did not

err by den ying his request for the appoint ment of cou nsel. S ee Tex. Code Crim . Proc.
Ann. art. 64.01(c ) ; Gutierrez , 307 S.W.3d at 321 ; Duran v. State , No. 02

- 17

- 00405

- CR,15

2018 WL 3075030, at *3 (Tex. App.

— Fort Worth Jun e 21, 2018, pet. ref ’ d) (mem. op., not designated for publication)

. We over rule Lumsden ’ s se co nd is sue.
II I. C ON CLUSION
Hav ing overruled both of Lumsde n ’ s issues, we affirm the trial court ’ s order.

/s/ Bonnie Sudderth
Bonnie Sudde rth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : Februa ry 29, 2024