In the

Court of Appeals

Second 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. F15-1103-211

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

RAYMOND EDWARD LUMSDEN, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

In 2016, Appellant Raymond Edward Lumsden was convicted of aggravated 

sexual assault of a child, indecency with a child, and criminal solicitation of a minor, 

and the trial court sentenced him to three consecutive life sentences.

1 Since then, he 

has filed numerous motions requesting postconviction forensic DNA testing under 

Chapter 64 of the Texas Code of Criminal Procedure, all of which have been denied.2 

Lumsden, acting pro 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 

counsel. We will affirm. 

I. BACKGROUND

The underlying facts of this case have been discussed in detail in our prior 

opinions. See Lumsden II, 2021 WL 4319602, at *1–5; Lumsden I, 564 S.W.3d at 866–

74. Therefore, we borrow the pertinent facts from them, summarizing where

appropriate. 

1We affirmed his convictions and sentences on direct appeal. See generally

Lumsden v. State, 564 S.W.3d 858 (Tex. App.—Fort Worth 2018, pet. ref’d) (Lumsden I).

2We previously affirmed the trial court’s denial of Lumsden’s second and third 

motions for postconviction DNA testing. See generally Lumsden v. State, 

No. 02-21-00012-CR, 2021 WL 4319602 (Tex. App.—Fort Worth, no pet.) (mem. 

op., not designated for publication) (Lumsden II). 
3

A. The Assault

Allison,3 Lumsden’s then-girlfriend’s elementary-aged daughter, accused 

Lumsden of sexually assaulting her. She testified that after her mother started dating 

Lumsden, they moved in with him and that she had her own room at Lumsden’s 

house. Allison accused Lumsden of sexually assaulting her one night while her 

mother was upstairs sleeping. She told her mother about the assault the next morning 

and recounted the allegations to a SANE4 nurse and a forensic interviewer. 

B. The DNA Evidence

The SANE nurse “swabbed Allison’s mouth, vagina, anus, and fingernail area 

and combed through her hair to collect biological evidence.” Lumsden II, 2021 WL 

4319602, at *2 (quoting Lumsden I, 564 S.W.3d at 870). The State’s forensic DNA 

expert was Christina Capt, a forensic DNA analyst with the University of North 

Texas Center for Human Identification.

[She] . . . testified that the vaginal swabs 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

In our prior opinions, we used pseudonyms to refer to the complainant, her 

mother, and all minors. See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 

936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982). We use those same pseudonyms 

here.

4SANE stands for Sexual Assault Nurse Examiner. Lumsden I, 564 S.W.3d at 

868.
4

alleles detected in Raymond Lumsden’s profile.” Capt testified that she 

was thus not able to exclude Lumsden from being a contributor to the 

unknown Y STR profile found in Allison’s vaginal swabs. Capt further 

testified that six out of 10,000 people would have the same nine markers

that were located in this case and that no other male contributors were 

detected on any of the items that were tested.

. . . .

Lumsden admitted that he could not explain the DNA evidence. 

Id. (quoting Lumsden I, 564 S.W.3d at 872–74). 

After Capt’s testing, Lumsden had the vaginal and anal swabs reanalyzed by his 

own expert, Suzanna Ryan at Ryan Forensic in California. Because Ryan did not 

testify at trial, her report was not admitted into evidence. But her report was attached 

as an exhibit to Lumsden’s third motion for DNA testing and included findings 

similar to Capt’s:

No male DNA results were obtained from the amplification of the anal 

swab sample. In fact, no male DNA at all was detected during the 

quantitation stage of analysis. The male quantitation system in use at the 

UNT laboratory is quite sensitive - capable of detecting the DNA from 

about 3 or 4 cells’ worth of DNA, yet no male DNA was detected from 

this sample.

. . . A low-level, partial, male profile has been detected in the 

vaginal swab sample. Re-analysis of the data at a lower analytical 

threshold than used by the UNT laboratory reveals the 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 related male individual.
5

Id. at *3. In her report, Ryan also discussed the possibility of secondary DNA 

transfers—a theory that is central to Lumsden’s argument for additional DNA testing. 

Regarding such secondary transfers, Ryan opined as follows:

4. The amount of male DNA detected on what has been labeled as the 

vaginal swab is very low level[,] and there is no way to determine, 

through DNA testing, whether the DNA was deposited via a direct 

contact or through an indirect (secondary) transfer. Considering that 

[Allison] and Mr. Lumsden [had been] residing in the home together for 

several months[,] there are many ways in which 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 through direct contact varies from person 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 also been illustrated 

through various peer-reviewed journal articles (Cale et al., for example) 

that DNA can transfer secondarily, through an intermediary. This can 

be from person to person to object or from person to object to person. 

An example would include the transfer of Person A’s DNA to Person 

B’s hands through a hug or handshake (direct transfer). Person A’s DNA 

would then be available for further transfer onto an object that is 

touched by Person B (a cell phone, a door knob, a weapon) or even onto 

another location on Person B’s body. For example, if Person B touched 

[his] face, neck, or genital area, it has been shown by Graham 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].

Secondary transfer can also occur from person to object to 

person. An example of this sort of transfer could be if Person A dried 

[his] hands on a towel, thus transferring [his] DNA to the towel (primary 

transfer). If Person B then used that same towel to dry [her] hands 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) can also occur in the laundering process as 

described by Noël et al. and Kamphausen et al. (2015) who both 
6

observed transfer of body fluids onto clean clothing items during the 

laundering process.

Noël et al. found in their research that underwear of girls in 

volunteer family groups consistently demonstrated the presence of DNA 

from all members of the family, including the father, mother, and 

siblings. Y-STR testing would make it even more likely to detect [a] 

male family member’s DNA on a female family member’s underwear 

since it ignores the presence of female DNA.

In this case, since the laboratory did not analyze the underwear, it

is unknown whether Lumsden’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 DNA present on [Allison’s] 

underwear could easily transfer to her vaginal area while she was wearing 

the underwear. The possible low-level presence of more than one male 

individual at two loci could be further proof of some sort of secondary 

DNA transfer event.

5. Since a low amount of male DNA was detected in an excess of 

female DNA, Y-STR testing had to be conducted in this case in order to 

obtain any usable DNA results. However, Y-STR testing is different 

than traditional autosomal testing in that even when a full DNA profile 

is obtained, the lab can’t identify one individual to the exclusion of all

others.

Due to the paternal inheritance of the Y-chromosome, Mr. 

Lumsden’s son (in fact, all of his paternal male relatives) would have 

exactly the same Y-STR profile[,] and it would be impossible to 

differentiate between the two individuals[’] DNA based upon Y-STR 

testing. Considering this fact, it cannot be stated with any certainty that 

Lumsden’s DNA is truly present in the vaginal area of [Allison]. First, 

only a partial profile has been obtained. If any of the 8 loci where no 

results were obtained happened to not be consistent with Lumsden, he 

would be 100% excluded as a possible contributor to the DNA profile.

In addition, the DNA detected on the vaginal swab could just as easily 

be from a secondary transfer event involving Lumsden’s son’s DNA. If 

the two children shared a bathroom, 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 lives in a particular home, the more of [his] 

DNA we would expect to find. Touch DNA can last for extended 

periods of time indoors with one study indicating full “touch” DNA 

profiles obtained up to 6 weeks after deposition (Raymond et al.). This 

was the longest time period studied, so it is quite likely, and supported by 

anecdotal evidence, that touch or transfer DNA can remain for even

longer time periods.

6. In this case it is impossible to determine how the male DNA 

arrived on the vaginal area of [Allison] (primary or secondary transfer)[,]

and it is impossible to determine exactly whose DNA is actually present 

due to the partial Y-STR profile and the paternal inheritance 

demonstrated with Y-STR typing. It should be noted that the 

probability of randomly selecting an unrelated Caucasian individual who 

could also be a contributor to the partial profile obtained from the 

vaginal swab sample is 1 in 2,457 and, if even one 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. Lumsden’s Postconviction Motions

Soon after we affirmed his convictions and sentences, Lumsden filed his first 

motion for DNA testing, which the trial court denied in April 2019. 

The following April, Lumsden filed an application for writ of habeas corpus. 

In August 2020, the trial court recommended that the application be denied, and the 

Court of Criminal Appeals denied it without a written order in June 2021.

In November 2020, Lumsden filed his second and third motions for DNA 

testing in which he sought testing of the victim’s underwear that had not been

previously tested and retesting of the vaginal swabs. The trial court denied both 
8

motions in a single order, and as previously noted, we affirmed this order on appeal. 

See id. at *13. 

Lumsden filed a second application for writ of habeas corpus in April 2022 and

a third such application in June 2022. His second application was denied in July 2022,

and his third application was dismissed one week later.

In April 2023, Lumsden filed his fourth motion for DNA testing in which he 

again sought testing of the victim’s underwear as well as the untested DNA swabs 

inside the sexual-assault kit. Without holding an evidentiary hearing, the trial court 

issued an order, which contained findings of fact and conclusions of law, denying the 

motion. This appeal followed.

II. DISCUSSION

In two issues, Lumsden argues that the trial court erred by (1) denying his 

fourth motion for DNA testing and (2) denying his motion for the appointment of 

counsel. Lumsden’s arguments are meritless. 

A. Standard of Review

When reviewing a trial court’s ruling on a motion for DNA testing pursuant to 

Chapter 64 of the Texas Code of Criminal Procedure, we apply a bifurcated standard 

of review. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017); Rivera v. State, 89 

S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard, “we give almost total 

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

and application[]-of-law-to-fact issues turning on witness credibility and demeanor,”
9

but “we review de novo all other application-of-law-to-fact questions.” Reed, 541 

S.W.3d at 768–69.

B. Chapter 64

Under Chapter 64, a convicted person may file “a motion for forensic DNA 

testing of evidence . . . containing biological material.” Tex. Code Crim. Proc. Ann. 

art. 64.01(a-1). Such a motion requests testing of evidence that was in the State’s 

possession during trial and that either was not previously tested or, although 

previously tested, can be tested with newer techniques that would provide more 

“accurate and probative” results. Id. art. 64.01(b)(2)(A); see Holberg v. State, 425 S.W.3d 

282, 284 (Tex. Crim. App. 2014). A convicting court may order testing only if (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”; and 

(3) “identity was or is an issue in the case.” Tex. Code Crim. Proc. Ann. art. 

64.03(a)(1); Holberg, 425 S.W.3d at 284. Additionally, to prevail on a Chapter 64

motion, a convicted person must prove by a preponderance of the evidence that he 

“would not have been convicted if exculpatory results had been obtained through 

DNA testing” and that “the request for the proposed DNA testing is not made to 

unreasonably delay the 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 Lumsden’s Motion for DNA 

Testing

In his fourth motion for DNA testing, Lumsden sought testing of the victim’s 

underwear that had not been previously tested and “untested DNA swabs inside of 

the sexual assault kit.” The crux of Lumsden’s argument for additional testing is that 

if another male profile were found, this would not only prove that a secondary or 

tertiary DNA transfer occurred but also would support Lumsden’s theory that the 

presence of his DNA on the vaginal swab could be explained by such an “innocent” 

secondary or tertiary transfer.

5

This argument is just a slightly modified version of the one we rejected in our 

opinion affirming the trial court’s denial of Lumsden’s second and third motions for 

DNA testing. There, Lumsden argued “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 underwear via ‘innocent’

secondary transfer in the laundry.” Lumsden II, 2021 WL 4319602, at *10. However, 

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, 

5As shown below, Lumsden’s innocent transfer theory relies on a tertiary

transfer (i.e., person to object to object to person), but he has not presented any 

evidence of studies documenting such transfers. Lumsden II, 2021 WL 4319602, at 

*11.
11

that the presence of his DNA on the underwear would prove that his 

DNA on the vaginal swab was there merely 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 transfers are possible, she supports her 

opinion with summaries of studies and articles that deal with finding 

DNA and sperm only on female underwear that had been washed with 

underwear from male family members. She does not describe any study 

in which the female in the prior studies and articles had a vaginal swab 

taken after wearing the laundered underwear and that the vaginal swab 

showed the presence of the male family members’ DNA. Additionally, 

Ryan’s report mentions that person-to-object-to-person transfers are 

possible. But for 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 underwear) to object 

(Allison’s underwear via the laundry) to person (Allison’s vagina).

Neither the articles attached to Lumsden’s second motion nor the 

articles described in Ryan’s report describe studies of such attenuated 

DNA transfers. The trial court was therefore free to believe the 

evidence presented at trial and to conclude that DNA testing of Allison’s 

underwear would not exonerate 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 touched her 

vagina.

Id. at *11. Thus, finding a third DNA profile on Allison’s underwear or vaginal swabs 

would not prove Lumsden’s innocent transfer theory, which is premised on the 

occurrence of a heretofore undocumented tertiary DNA transfer. See id. Any 

possible third-party DNA on the underwear or swabs would not negate the fact that 

Lumsden’s DNA was found on Allison’s vagina. Therefore, even if we were to accept

Lumsden’s premise that the presence of third-party DNA would prove that secondary 

or tertiary DNA transfers are possible, the requested testing could not rule out the 

possibility that Lumsden’s DNA was found on Allison’s vagina because he sexually 
12

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

waters”; it would not exculpate Lumsden. See Eubanks v. State, 113 S.W.3d 562, 565 

(Tex. App.—Dallas 2003, no pet.) (“A trial court does not err in denying postconviction DNA testing where, at most, exculpatory DNA tests would ‘merely muddy 

the waters.’” (quoting Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002))). 

Further, even if we were to assume that the testing would show the results that

Lumsden suggests, he has nevertheless failed to carry his burden under Article 64.03

because the record contains other substantial evidence of guilt. See Tex. Code Crim. 

Proc. Ann. art. 64.03(a)(2)(A); Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim. 

App. 2010). As we detailed in our prior opinion, the record reflects that:

• Allison told her mother, [the SANE nurse], and the forensic 

examiner that Lumsden had touched her privates; Allison did not 

mention being touched on her privates by any other male.

• During Allison’s physical exam, [the SANE nurse] noted “generalized 

redness” that covered Allison’s vaginal area.

• [The SANE nurse] testified that the redness on Allison’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 

house on the night in question; his son was not home.

• And Lumsden could not be excluded as a contributor to the male 

DNA that was found on the vaginal swab.

Lumsden II, 2021 WL 4319602, at *11. Given this evidence and the lack of support for 

the multitudinous DNA transfers that Lumsden alleges occurred here, Lumsden has 
13

not demonstrated by a preponderance of the evidence that, even if exculpatory results 

were obtained, there exists a greater than 50 percent likelihood that he would not have 

been convicted. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A); Ex parte Gutierrez, 

337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (“[A] convicted person is not entitled to 

DNA testing unless he first shows that there is ‘greater than a 50% chance that he 

would not have been convicted if DNA testing provided exculpatory results.’”

(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 under Article 64.03 if the record contains other substantial 

evidence of guilt . . . .”); Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.—Houston 

[1st Dist.] 2002, pet. ref’d) (holding that the movant did not establish that DNA 

testing would produce exculpatory results when other competent evidence was 

available to show that he committed the offense). Accordingly, the trial court did not 

err by denying Lumsden’s request for DNA testing.

We overrule Lumsden’s first issue.

2. The Trial Court Properly Denied Lumsden’s Request for Appointed 

Counsel

In his second issue, Lumsden asserts that the trial court abused its discretion by 

denying his request for the appointment of counsel during his Chapter 64 

proceedings. We disagree.
14

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

connection with a Chapter 64 request for DNA testing. Gutierrez v. State, 307 S.W.3d 

318, 321 (Tex. Crim. App. 2010). Rather, if a convicted person intends to file a 

motion for postconviction DNA testing, the trial court is only required to appoint 

counsel to the applicant if (1) the applicant tells the trial court that he wishes to apply

for postconviction DNA testing; (2) the trial court finds “reasonable grounds” for the 

application to be filed; and (3) the trial court determines that the applicant is indigent. 

Tex. Code Crim. Proc. Ann. art. 64.01(c). In short, entitlement to court-appointed 

counsel in this context is conditioned on the trial court’s finding, in relevant part, that 

“reasonable grounds” exist for filing the motion for postconviction DNA testing. 

Gutierrez, 307 S.W.3d at 321. 

Here, Lumsden’s motion—his fourth request for postconviction DNA 

testing—asked to test the same evidence as his prior motions and made essentially the 

same arguments that had previously been rejected by both the trial court and this 

court. Further, for the reasons set forth above, Lumsden has failed to carry his 

burden to show by a preponderance of the evidence that he would not have been 

convicted if the results of the requested DNA testing had been available at trial. See

Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). Because Lumsden has not shown 

“reasonable grounds” for the filing of his Chapter 64 motion, the trial court did not 

err by denying his request for the appointment of counsel. See 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 June 21, 2018, pet. ref’d) (mem. 

op., not designated for publication).

We overrule Lumsden’s second issue.

III. CONCLUSION

Having overruled both of Lumsden’s issues, we affirm the trial court’s order.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: February 29, 2024