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Click here for the full text of this decision FACTS:In February 1990, appellant Frederick Wayne Johnson was convicted of aggravated sexual assault of a child and sentenced to life in prison. In 2001, he filed a motion seeking DNA testing of biological evidence obtained during the investigation of the assault. The trial court ordered the testing and then held a hearing regarding the results. The trial court found that the results were “not favorable” to appellant under Chapter 64 of the Texas Code of Criminal Procedure. HOLDING:Affirmed. The appellant contends that the trial court erred in finding that the DNA test results were not favorable to him. Results are considered favorable only if, had the results been available before or during the trial of the offense, it is reasonably probable that the person would not have been prosecuted or convicted. The trial court specifically found that the DNA test results were not favorable to appellant under article 64.04. A trial court does not err by finding DNA test results “not favorable” if the post-conviction results fail to demonstrate a reasonable probability of innocence in the face of other evidence that is sufficient to establish guilt. Here, the DNA test results demonstrate that appellant could not have been the source of a semen stain on a cutting from complainant’s underwear. “Although this evidence is certainly exculpatory in nature, we do not consider it in a vacuum. It must be evaluated in the context of the other relevant evidence, particularly: 1. the results of DNA testing on the vaginal swabs, 2. the unusually persuasive eyewitness testimony, and 3. the evidence that complainant was sexually active during the period of time in which the assault occurred.” The court notes the inconclusive nature of the results of the DNA evidence. The eyewitness testimony in this case was “particularly compelling” and less open to misidentification than in many cases based primarily on eyewitness testimony. Complainant’s identification of appellant as her attacker was corroborated by other witnesses who saw appellant with complainant immediately before and immediately after the assault. The court also notes evidence that complainant was sexually active during the period of time in which the assault occurred. That evidence provides an alternative explanation for semen stains that were on the complainant’s clothing that did not match appellant’s DNA. The trial court did not err in finding that the results were not favorable to appellant, the court concludes. OPINION:Hedges, CJ; Hedges, CJ, Yates and Anderson, JJ.

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