Dugar, Lindsey v. State

Opinion issued April 24, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00701-CR ____________ LINDSEY DUGAR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 740266 MEMORANDUM OPINION A jury convicted appellant, Lindsey Dugar, of aggravated sexual assault and assessed punishment at confinement for 30 years. In a single point of error, appellant contends that the convicting court erred in denying his motion for post-conviction DNA testing. We affirm. Background On August 16, 2001, appellant filed a pro se motion for DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01–.05 (Vernon Supp. 2003). Subsequently, on March 26, 2002, appellant’s counsel filed a second motion for DNA testing. The State filed a written response with supporting affidavits. The convicting court denied appellant’s motion without a hearing and issued findings of fact and conclusions of law. In its findings of fact, the convicting court found “based on a review of the trial court record, that the defensive theory advanced at trial was that the sexual intercourse was consensual.” The court further found that “identity was not an issue on the instant case.” In its conclusions of law, the convicting court concluded that appellant “failed to meet the requirements of 64.03(a)(2).” Sufficiency of Motion Appellant argues that the convicting court erred in denying his motion for DNA testing because the court erroneously found that identity was not an issue at trial. In order to obtain post-conviction DNA testing, an applicant must show that: (1) evidence, which has been subjected to a sufficient chain of custody to establish its integrity, exists in a condition making DNA testing possible; (2) identity was or is an issue in the case; and (3) a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a); Thompson v. State, 95 S.W.3d 469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. filed). We review whether identity “was or is an issue in the case,” and we do not consider whether future DNA testing could raise the issue. Bell v. State, 90 S.W.2d 301, 308 (Tex. Crim. App. 2002). Appellant asserted in his first motion for DNA testing that “identity was and is an issue in this case.” In appellant’s second motion for DNA testing, appellant conceded that “whether or not sexual activity occurred in this case was not an issue; consent was the trial issue.” However, appellant further argued in the second motion that “he maintained to his trial lawyer from the start that he had not had sexual intercourse with the complainant,” and that “his identity as the perpetrator of this offense was always an issue at trial.” In his brief, appellant argues that the issue of consent was a “defensive theory” used by his counsel as “trial strategy,” which could not be the basis for the denial of his motion for DNA testing. Appellant’s argument is without merit. Although appellant states that identity was an issue in his case, the record reflects that appellant never challenged the complainant’s identification of him as the perpetrator. The complainant testified that appellant, a friend of her then boyfriend, sexually assaulted her at gunpoint. The record further reflects that Houston Police Officer P.R. Moreno testified that appellant admitted to engaging in sexual intercourse with the complainant, but that it was consensual. Appellant did not present witnesses rebutting the testimony of the complainant or Officer Moreno. Contrary to appellant’s assertions, the issue was not who sexually assaulted the complainant, but whether the complainant consented to the alleged sexual intercourse. Accordingly, we hold that the convicting court did not err in denying appellant’s motion for post-conviction DNA testing. We overrule appellant’s sole point of error. Conclusion We affirm the order of the convicting court. Terry Jennings Justice Panel consists of Justices Hedges, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.2(b).