in Re: The Interest of George Ralph Newby, Jr.

NO. 07-03-00431-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JANUARY 16, 2004 ______________________________ IN RE THE ESTATE OF GEORGE RALPH NEWBY, JR. _________________________________ FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY; NO. 35,142; HONORABLE WILLIAM D. SMITH, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Betty Ann Newby, proceeding pro se, filed a notice of appeal, received by this court on October 10, 2003, stating that she was appealing an order dated September 8, 2003, that approved a claim against the estate of George Ralph Newby, Jr., deceased. The notice of appeal referenced two cause numbers, 35,150 and 35,142 in the 84th District Court of Hutchinson County, so the appeals were assigned two case numbers in this court, 07-03-0431-CV and 07-03-0432-CV. Appellant did not pay the filing fees of $125 for either appeal or submit an affidavit of indigence pursuant to Rule 20 of the Rules of Appellate Procedure. By letter dated October 14, 2003, the clerk of this court notified appellant that the filing fee had not been paid, and that failure to pay it could result in dismissal. We also received correspondence dated the same date from the trial court clerk, indicating that appellant had not paid for preparation of the clerk's record. Having received no fee by November 18, 2003, we directed appellant by letter of that date, to pay the filing fees on or before December 2, 2003, and to certify to the clerk of this court by the same date, whether appellant had complied with Rule of Appellate Procedure 35.3, concerning payment for preparation of the record, and if not, to give a reasonable explanation for her non-compliance. That letter again advised appellant that failure to pay the filing fees could result in the appeals being dismissed. Tex. R. App. P. 42.3(c). Appellant responded on December 3, 2003 with a Motion to Extend Payment Date and an Affidavit of Indigency. Those documents did not comply with the requirements of Rule 20.1 for establishing indigence. The affidavit was untimely; it was due to be filed in the trial court with or before the notice of appeal. Any motion for extension of time to file the affidavit would have been due not later than October 25, 2003. Tex. R. App. P. 20.1(c)(3). Moreover, the affidavit stated that appellant would be able to pay the court costs and fees on January 1, 2004. By letter dated December 30, 2003, we notified appellant that she had not complied with the requirements of Rule 20.1. We granted appellant's request for an extension of time to pay the fees, and directed her to pay this court's filing fees for both appeals, on or before January 5, 2004. Appellant was also directed a second time to certify to the court, by the same date, whether she had complied with Tex. R. App. P. 35.3. On January 9, 2004, the court received from appellant a response, requesting we require her to pay only one filing fee because the two causes were consolidated at the trial court level. Documents appellant submitted with her response indicate that the consolidation occurred on May 17, 2002, sixteen months before appellant filed her notices of appeal. But appellant did not tender even one filing fee with her response and did not provide the certifications of compliance with Tex. R. App. P. 35.3, as directed. Appellant is not excused by statute or the Rules of Appellate Procedure from paying costs. Tex. R. App. P. 5. Despite more than reasonable opportunities to do so, appellant has persistently failed to comply with the requirement that she pay the filing fees this court is obligated to collect, and with this court's orders with respect to the filing fees and the preparation of the clerk's record. All parties having had more than ten days' notice that dismissal could result from appellant's continued failure to comply with the rules and this court's orders, these appeals are dismissed. Tex. R. App. Proc. 5, 37.3, 42.3(b) and (c). Per Curiam Name="Strong"/> NO. 07-10-0256-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 26, 2010 BOBBY J. CATE, Appellant v. THE STATE OF TEXAS, Appellee ___________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-436,240; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING Opinion Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Bobby J. Cate appeals an order determining that, had the results of DNA testing been available during his trial for aggravated sexual assault, it is not reasonably probable that he would not have been convicted. We affirm the order. Background In 2002, appellant was convicted of raping a woman he approached in the parking lot of a shopping mall in Lubbock and who offered to give him a ride in her vehicle. That conviction was based primarily on the victim’s identification of appellant. In other words, there was no forensic evidence offered to support the verdict. In 2004, appellant filed a motion for DNA testing of hair samples found in the victim’s car. One of the hair samples found in the vehicle was confirmed to belong to John Walter Hamilton. After testing, the trial court held a hearing in accordance with art. 64.04 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 64.04 (Vernon 2006) (requiring that after examining the results of testing, the convicting court hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted). At the conclusion of an evidentiary hearing, the trial court ruled against appellant. Discussion We review the trial court’s order to determine whether the DNA test results create a probability of innocence sufficient to undermine confidence in the outcome of the trial. Fuentes v. State, 128 S.W.3d 786, 787 (Tex. App.–Amarillo 2004, pet. ref’d). While there may be subsidiary fact issues which we review deferentially, Johnson v. State, 183 S.W.3d 515, 519-20 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d, untimely filed), the ultimate question is one of law which we review de novo. Fuentes v. State, 128 S.W.3d at 787; see also Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Appellant argues that because the hair fibers of Hamilton were found in the victim’s vehicle where the rape occurred and because Hamilton fits the general description the victim provided of her assailant, i.e. white male, six feet, 160 pounds, late thirties to early forties, brown hair, beard, and mustache, and blue or green eyes,[1] there is a reasonable probability he would not have been convicted had that particular evidence been available at trial. Yet, the record suggests that a witness during appellant’s original trial indicated that hairs belonging to someone other than appellant were found in the vehicle. Indeed, more than eighty hairs with various characteristics were found and at least forty of them were dissimilar to appellant’s hair. So, the theory underlying appellant’s current attack upon his conviction was proffered to the jury before it decided to convict him. Simply put, the DNA evidence does not exclude appellant as the assailant but merely tends to place someone with the same general physical characteristics as appellant (Hamilton) in the vehicle at some time or another. That Hamilton lived in Midland (as opposed to Lubbock where the assault occurred), that the assault victim acquired the vehicle from an individual living in Midland, that both the latter and Hamilton were acquaintances, and that Hamilton admitted to using the vehicle as the locus of a sexual rendevous in Midland with his girlfriend at one time could reasonably explain how the hair came to be in the vehicle. At the very least, it provides little to no logical basis to replace appellant with Hamilton at the scene of the assault in Lubbock. More needed to be presented before such could occur. It must also be remembered that the victim was quite certain of her identification of appellant as her attacker. Moreover, she so identified him in three different photo arrays. As previously held by us in Cate v. State, 124 S.W.3d 922 (Tex. App.–Amarillo 2004, pet. ref’d), such testimony was sufficient to support his conviction. Id. at 928-29. This is of import for authority tells us that a reasonable probability of innocence does not exist if there is sufficient evidence, independent of the DNA evidence in question, to establish the appellant’s guilt. Johnson v. State, 183 S.W.3d at 520. Inconclusive evidence does not make innocence more or less probable. Baggett v. State, 110 S.W.3d 704, 707 n.1 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d); see also Booker v. State, 155 S.W.3d 259, 266-67 (Tex. App.–Dallas 2004, no pet.) (finding no reasonable probability of innocence because the testing did not exclude appellant as the culprit); Fuentes v. State, 128 S.W.3d at 787 (noting, among other things, that the testing failed to exclude appellant as the assailant); Eubanks v. State, 113 S.W.3d 562, 566 (Tex. App.–Dallas 2003, no pet.) (casting doubt is not enough to meet the burden to show a reasonable probability of one’s innocence). The DNA evidence at bar falls within that realm; it is inconclusive. So too does it touch upon a defense presented to and apparently rejected by the jury that convicted appellant. Consequently, we overrule the issue before us and affirm the trial court’s order. Brian Quinn Chief Justice Publish. [1]Appellant was actually forty-four and had brown eyes.