Background
Brent Laray Tucker was convicted in 2017 of two counts of indecency with a child by sexual contact involving two preteen boys and received consecutive twenty-year prison terms. The Ninth Court of Appeals previously affirmed those convictions. The present appeal concerned only the count involving an eleven-year-old complainant who testified that Tucker reached into his pants while he slept at Tucker’s home.
Seven years after his conviction, Tucker sought post-conviction DNA testing of the complainant’s yellow-and-grey shorts under Chapter 64 of the Texas Code of Criminal Procedure. Testing before trial had produced a three-person DNA mixture that excluded Tucker and the complainant’s father. Tucker submitted an expert declaration asserting that newer touch-DNA collection methods, including cutting fabric from targeted areas, could more reliably establish that Tucker’s DNA was absent and thereby show that the alleged touching did not occur. The trial court denied the motion, finding deficiencies concerning chain of custody, identity, the likely probative value of new testing, and whether exculpatory results probably would have prevented Tucker’s conviction.
The Court’s Holding
The Court of Appeals affirmed. Reviewing the ruling de novo because the trial court held no evidentiary hearing, the court concluded that Tucker failed to satisfy Chapter 64’s threshold requirements. Evidence showed that two pairs of shorts had been stored together in one plastic bag and may previously have been handled by the complainant’s parents or commingled with family laundry. The court therefore upheld the finding that Tucker had not established that the requested evidence remained unaltered and uncontaminated.
The court also held that identity was not an issue within Chapter 64 because Tucker sought to show that no offense occurred, not to identify a different perpetrator. It further concluded that newer testing would likely only confirm the earlier result excluding Tucker from the DNA mixture, rather than produce a more probative result. Because the jury convicted Tucker despite that exclusion and the complainant’s testimony independently supplied substantial evidence of guilt, Tucker did not establish a greater-than-50-percent chance that exculpatory DNA results would have prevented his conviction.
Key Takeaways
- A Chapter 64 applicant must establish that the specific evidence sought to be tested remains suitable for testing and has not been materially altered or contaminated.
- Chapter 64’s identity requirement is not satisfied when proposed testing is intended to show that no offense occurred rather than determine who committed an offense.
- More sensitive testing is not sufficiently probative when it is expected merely to confirm an earlier exclusion that the jury already considered alongside substantial independent evidence of guilt.
Why It Matters
The decision underscores that scientific advances alone do not entitle a Texas prisoner to post-conviction DNA retesting. The applicant must connect the proposed testing to each statutory requirement, including evidence integrity, disputed identity, greater probative value, and a probability that exculpatory results would have changed the verdict.
For practitioners, the opinion also illustrates the difficulty of obtaining retesting when the desired result—exclusion of the defendant—was already before the jury and the conviction rested substantially on eyewitness or complainant testimony.