PD-0445-18 06/20/2018
1. "Whether the court of appeals properly determined that the postconviction DNA testing results established a reasonable probability that the appellant would not have been convicted had they been available at the time of trial?"
2. "Whether the court of appeals gave proper deference to the trial court’s determination of historical facts and application-of-law-to-fact issues that turn on credibility or demeanor?"
3. "Whether the court of appeals considered all the evidence before the trial court in making its article 64.04 finding before determining that post-conviction DNA testing results established a reasonable probability that the appellant would not have been convicted had they been available at the time of trial?"
Dunning was charged with the aggravated sexual assault of a mentally-impaired and hearing-impaired boy after the boy picked him out of a photo lineup. The defense strategy was to argue that the boy’s step-father was the actual perpetrator. He lived in the apartment complex where the assault took place, had been convicted of sexually abusing his step-daughter in another state (and thus was a registered sex offender), and had pleaded guilty to sexually assaulting two other girls in that same apartment complex around the time of this assault. After the trial court made a pretrial ruling excluding the step-father’s out-of-state conviction for sexual abuse, Dunning accepted a plea-bargain offer for the minimum sentence and pleaded guilty. No DNA testing had been conducted at that point.
Years later, Dunning requested and was granted post-conviction DNA testing on the victim’s swim shorts and other items in the rape kit. DPS lab testing found no interpretable DNA profile on the submitted items. Testing by the Serological Research Institute (SERI) excluded Dunning as a donor on the tested items. The analyst also concluded there was a mixture of DNA profiles on the crotch and crotch swab of the victim’s shorts for which the victim was a major contributor and person other than the defendant was a minor contributor. At a Chapter 64 hearing, the State’s DNA expert agreed that the victim’s clothing had his DNA on it and the DNA of someone other than Dunning, but he disagreed about whether the existence of a minor contributor other than Dunning on the shorts established the presence of an alternate perpetrator. The trial court held that the new DNA results did not cast affirmative doubt on Dunning’s guilt and entered a “not favorable” finding.
On appeal, the court of appeals held that Dunning established a reasonable probability that he would not have been convicted if the DNA results had been available at the time of trial and that the trial court’s “not favorable” finding was in error. While it acknowledged Dunning had pleaded guilty, it concluded this was a result of the defense scrambling after the trial judge excluded evidence supporting his alternate perpetrator theory. It also noted that although the victim had identified Dunning in a lineup, he was only twelve, was mentally impaired, and could have been manipulated by his step-father.
The State argues that the court of appeals devalued Dunning’s judicial confession and admissions and presumed that his plea was involuntary. The State contends the court of appeals failed to give deference to the trial court’s determination of an issue that was thoroughly litigated at the hearing: whether the existence of low or trace level DNA in the DNA mixture found on the victim’s shorts established the presence of an alternate perpetrator. The State also argues that the court of appeals failed to consider all the evidence admitted and considered by the trial court and acted like a “super-factfinder” engaging in speculation and uncovering alternate theories.
