Brent Laray Tucker v. The State of Texas — Memorandum Opinion by Justice Wright

1
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00391-CR
________________
BRENT LARAY TUCKER, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 15-09-09853-CR
________________________________________________________________________
MEMORANDUM OPINION
In 2017, Appellant, Brent Laray Tucker, (“Tucker” or “Appellant”) was
convicted of two counts of indecency with a child by sexual contact.1 See Tex. Penal
Code Ann. 21.11(a)(1). He was sentenced to consecutive twenty-year terms of
1 See Tucker v. State, Nos. 09-17-00428-CR and 09-17-00429-CR, 2019 Tex.
App. LEXIS 2374, at *1 (Tex. App.—Beaumont Mar. 27, 2019, pet. ref’d) (mem.
op.) (not designated for publication). The evidence is summarized in this prior
opinion.

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imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. On appeal, we affirmed the trial court’s judgments.
Seven years after he was convicted, Tucker filed a Motion for Forensic DNA
Testing, contending that retesting certain evidence with newer testing techniques
would exculpate him as to one of the offenses. The trial court denied Tucker’s
motion and this appeal followed. Since Tucker did not meet his evidentiary burden,
we affirm the trial court’s denial of forensic DNA testing. See Tex. Code Crim. Proc.
Ann. art. 64.03(a).
BACKGROUND
The Criminal Trial
Although the trial testimony is summarized in our previous opinion, for ease
of reference, we provide pertinent portions of it below.
Tucker was convicted of indecency with two different preteen boys: “Tim,”
age twelve, and “Dylan,” age eleven.2 According to Tim, Dylan, and their parents,
the boys became friendly with Tucker’s stepson through their involvement in a youth
baseball program, and Tucker invited Tim and Dylan to spend some nights at his
2 We use pseudonyms to refer to the complainants to conceal their identities.
See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process”).

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home.3 After Tim and Dylan told their parents of Tucker’s indecency during these
visits, the parents alerted the police, and Tucker was indicted and convicted of both
counts of indecency with a child by contact. Count One pertained to Tim and Count
Two pertained to Dylan. Count Two is the sole count at issue in this matter.
At trial, Dylan testified that he and Tucker’s stepson were sleeping on a futon
or mattress in Tucker’s living room when he felt a hand “messing . . . in my pants.”
Dylan tried to push the hand away, but it “kept coming[,]” so he covered his groin
area and feigned sleep. Dylan then felt a hand around his waist, sat up, and asked
Tucker, “Why are you hugging my waist?” and Tucker responded, “I can hug you[,]”
or words to that effect. Tucker then told Dylan that he “must have been dreaming[,]”
but Dylan knew it was not a dream. Dylan recalled that Tucker’s stepson slept
through this incident.
Tim testified that when he was at Tucker’s home, Tucker “started going under
my boxers, and then he started touching my private parts.”
Tucker testified at trial, denying that he had committed the offenses alleged.
Although Tucker acknowledged that he was in the room while his stepson and Dylan
slept, Tucker testified that Dylan “shot up[]” suddenly and “put his back up against
the main couch.” Since, according to Tucker, Dylan was “visibly frightened[,]” and
3 Tim slept at Tucker’s home once in June 2015 and once in July 2015. Dylan
slept there once in August 2015.

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“shaken up[,]” Tucker “got down on the floor next to” Dylan and put his arm on
Dylan’s back and asked him what was wrong. At that time, Tucker believed that
Dylan had had a bad dream but Dylan told Tucker he felt as though “someone
touched” him. Tucker then told Dylan, “that couldn’t have happened. There was no
one next to you.”
In addition, Tucker testified that when the boys awoke the following morning,
they went around the corner to buy kolaches and that Dylan stayed at his home until
baseball practice began at about four o’clock in the afternoon. Tucker also testified
that none of his DNA was found on Dylan’s shorts and denied touching a former
housemate the way he reportedly touched Tim and Dylan. This former housemate,
however, testified that while he lived in Tucker’s home, he would wake up to find
Tucker touching his crotch area.
Jessica Ehmann, a forensic scientist with the Texas Department of Public
Safety Laboratory, testified that there was no interpretable DNA on Dylan’s orange
and black camouflage shorts, meaning that “there was some small amount of DNA,
but it wasn’t enough for [her] to determine anything about it.” As for Dylan’s yellow
and grey camouflage shorts, Ehmann testified that the analysis of these shorts
yielded a mixture of three individuals and excluded both Tucker and Dylan’s father
as contributors.

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The Motion for DNA Testing
In the instant case, Tucker contended that he was entitled to new forensic
DNA testing of the evidence, Dylan’s yellow and grey shorts, because his request
complied with the statutory scheme set forth in the Texas Code of Criminal
Procedure.
The Code of Criminal Procedure permits forensic DNA testing under the
following circumstances, only:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing
possible; and
(ii) has been subjected to a chain of custody sufficient to
establish that it has not been substituted, tampered with,
replaced, or altered in any material respect;
(B) 	there is a reasonable likelihood that the evidence contains
biological material suitable for DNA testing; and
(C) 	identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence
that:
(A) the person would not have been convicted if exculpatory results
had been obtained through DNA testing; and
(B) 	the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration
of justice.

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Tex. Code Crim. Proc. Ann. art. 64.03(a).
To support his motion, Tucker attached (1) his own unsworn declaration
denying his guilt; (2) the declaration of Christy Lumpkin, affirming that the
Montgomery County Sheriff’s Office retained the shorts and that the “chain of
custody has not been broken[;]” (3) the declaration of Dr. Robert Collins, a DNA
expert, who averred that newer testing techniques would reveal the absence of touch
DNA on the complainant’s shorts, thus exonerating Tucker; and (4) the jury
selection portion of the trial record, wherein the State discussed DNA evidence with
the jury panel.
Collins’ declaration outlined his educational and professional credentials and
cited a study that, in Collins’ view, supported his belief that DNA tests were so
sensitive that the absence of Tucker’s DNA on the shorts would prove that Tucker
had not touched them. Collins continued as follows:
Purpose
8. 	I was in no way connected to the trial of [B]rent Tucker. Post-
conviction counsel for Mr. Tucker requested that I use my
education, training, experience, and expertise in the science and
analysis of DNA to determine if the DNA evidence in this case
is eligible for re-testing under Chapter 64. Chapter 64 provides
relief when the DNA evidence in a case “can be subjected to
testing with newer testing techniques that provide a reasonable
likelihood of results that are more accurate and probative than
the results of the previous test.”
9. 	Touch DNA refers to the DNA left by human physical contact
with an item. Touch DNA has always been present on many

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evidence items, but its probative use was limited by two factors.
First, the low levels of DNA found on evidence were undetected
by the technology of the day. Second, there were no evidence
processing 	techniques 	that 	were 	specific 	for 	touch 	DNA
evidence. Today, DNA STR analysis kits are more sensitive and,
more importantly, there are now touch DNA specific processing
techniques that meet the Daubert standard for scientific evidence.
10. 	The lack of scientific knowledge about touch DNA caused the
State to make incorrect statements to the Jury through no fault of
their own. Similarly, this lack of scientific knowledge prevented
the Defendant from making a proper defense. The deficiencies
were magnified by there only being a single evidence item. These
statements would not have been made by the State with today’s
scientific knowledge if processed with today’s technology and
methods.
Basis for Opinion
11. 	I have personal knowledge of the matters in this document that
pertain to my knowledge, education, training and experience
involving DNA casework analysis. My opinions, set forth herein,
are based on my knowledge, education, training and experience
involving all aspects of DNA analysis.
12. 	Post-conviction counsel requested that I provide my opinion on
the technology and methods used to produce the DNA results that
were presented to the Jury in comparison to the technology and
methods used today. In this document, I will give my opinion
based on the generally accepted scientific methods and data
recognized in my field and in peer-reviewed literature using
accepted scientific practices.
DNA Evidence Processing and Analysis in 2015
13. 	The use of DNA evidence in criminal trials, especially sexual
assault, became widespread in the early 2000’s. Body fluids such
as sperm and blood are prime sources of DNA evidence.
Technology advances allowed for the detection of smaller and

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smaller amounts of DNA on evidence. By the 2010’s, the
identification of “touch” DNA on evidence was becoming more
and more common. Touch DNA is left on evidence simply by
touching or handling the evidence.
14. 	The presence of touch DNA on evidence was immediately, and
justly, used by the State in the prosecution of crime. An
individual’s DNA was strong evidence that they were present at
the crime scene. What about the absence of an individual’s
DNA? Should the perpetrator’s DNA be present on the evidence?
How much weight should the Jury give the absence of the
Defendant’s DNA on the evidence?
15. 	In 2015, these questions were scientific unknowns. Studies had
shown that it was possible to recover touch DNA from most
surfaces commonly found including metals, plastics, glass, and
clothing. However, scientific studies of the specific interactions
by an individual with each material that were required for
detection of their DNA had not been completed.
16. 	The absence of studies on touch DNA left Defendants at a
distinct disadvantage in many cases. The presence of their DNA
could be incriminating but its absence had no value toward their
innocence. For the State, touch DNA was “heads we win, tails
you lose.”
17. 	Improved DNA detection techniques led to the increased use of
touch DNA in criminal prosecutions. However, the scientific
studies necessary to establish evidence processing techniques
that meet the strict standards for admissibility under Daubert can
take years to develop. The three Daubert requirements for
admissibility and how they effect the analysis of touch DNA
evidence are:
1. Must have a known or potential error rate. - what percentage
of times was an individual’s DNA detected when it is known
that they touched a defined item under defined conditions.
Should we expect that any touch DNA will be recovered by
this method?

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2. Standards must exist that control the method’s operation. – the
method must have controls and standards to ensure it is
performed properly. Is there a standard method that reliably
produces accurate results?
3. It must be published and have widespread acceptance in the
relevant scientific community. – method must be published
and obtained acceptance among the scientific community. Do
scientists accept that results produced by this method are
accurate?
18. 	In this case, a juvenile reported being fondled while he slept. The
evidence in this case was collected and submitted to the Texas
Department of Public Safety (DPS) crime lab on September 02,
2015 (A below). The yellow/grey camo shorts (B) are the only
DNA 	evidence 	item in 	question. 	They 	were 	worn 	by 	the
complainant (C). The DPS lab received only DNA swabs that
were collected from the evidence in the standard method of the
day.

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1[9]. 	The 	circumstances 	of 	the 	crime 	indicate 	that 	only 	the
complainant’s DNA and the DNA of the perpetrator should be
present on the inside of the shorts. The entire interior surface of
the shorts was swabbed for DNA. The goal is to collect as much
DNA as possible from the evidence for analysis.
[20]. 	For comparison, below is the evidence list from a similar case
(unrelated, for demonstrative purposes only) that was processed
for touch DNA in 2022. Now, specific areas are tested for touch
DNA based on the circumstances of the case. Swabs from two
areas of the front panel and two areas of the crotch were analyzed
for DNA.
2[1]. 	In 2015, touch DNA was collected from the critical evidence
item using the accepted methods of the day. Specifically, the
entire area of the yellow/grey camo shorts was swabbed for touch
DNA. This is the only processing that produced the swabs for the
touch DNA evidence in this case. Processing methods specific
for touch DNA had not been developed and the detection of
touch DNA on evidence was often missed.

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2[2]. The trial was two-and-a-half years later in 2017. Processing
techniques for touch DNA were being developed in forensic labs
but touch DNA detection was still unreliable. The lack of
scientific knowledge about touch DNA at this time was unfair to
many defendants. The State argued that the presence of touch
DNA meant guilt but when it wasn’t present, it wasn’t expected
to be found. Below is an excerpt from voir dire in this case. The
prosecutor screens for Jurors that believe touch DNA would not
be found because methods and technology do not exist. This
technology is equated to something out of Star Trek.
[PROSECUTOR]: Do you think it’s a myth that DNA or forensic
proof would be on the victim? Juror No. 29, would you expect it
in a touching case?
PROSPECTIVE JUROR []: Probably not, but it could be.
[PROSECUTOR]: Yeah. So it’s possible. How many of you
watch CSI? I watched an episode where they literally lifted a
fingerprint on a dead body. All right. Enough. This is over the
line. So, no, we don’t get fingerprints off of body parts. When
we talk about forensic proof, that’s not something that exists.
Sure, it’s possible one day with Star Trek, all kinds of options.
But this is – it is not in the purview of what we’re able to do
scientifically. Sometimes DNA can be picked up. But with
touching, do you think it’s as good as semen or bodily fluids?
PROSPECTIVE JUROR[]: No.
[PROSECUTOR]: Of course not. So depending on the time
period that’s passed, we heard it’s just a touching case, we don’t
really expect those kind of things. So, in fact, in these cases, we
rarely see DNA or forensic evidence because it’s touching and
not fluid exchange. Okay. Does anyone here say I understand
that, I get it, it totally makes sense; but [. . . .]
2[3]. Testimony from the State’s DNA expert reflected the improved
methodology for touch DNA analysis that had been adopted by
the DPS laboratory at the time of the trial (below). To process for
touch DNA, the DPS lab would swab an area for touch “based on

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the circumstances of the case.” However, this is misleading to the
Jury as the evidence in this case was not processed even in this
rudimentary touch-DNA-specific manner. The entire area of the
shorts was swabbed according to the accepted methods in 2015.
Q. 	Is 	there a 	threshold 	you 	use within 	your training 	and
experience for detection of those skin cell or touch DNA
samples?
A. We don’t have a way to test for the presence of touch DNA.
But we will collect items or swab an area that we think might
have DNA left behind just based on the circumstances of the
case. So we don’t have a threshold for which we can determine
if it needs to be tested. But if we think that touch DNA may be
present, then we will run DNA on that sample. If there’s too little
DNA present, it just won’t be picked up by our instrumentation.
If there is enough to be picked up by the instrumentation, we can
generally analyze it.
Q. If you say – if we believe touch DNA might be present
because you kind of said before there is no way to detect if it is
actually there or not, when you think about that, where to swab,
things like that, that’s based on the information that’s provided?
A. Yes. So if a swab of an item is submitted to us – if, for
example, an officer has swabbed a gun and they send us that swab
and we know that’s what they are [. . . .]
2[4]. Later in the testimony, the DPS laboratory analyst stated in
passing that the swabs were merely “repackaged” by the DPS lab
(below). No processing for touch DNA was performed by the lab
on the yellow/grey camouflage shorts evidence. The swabs from
the shorts were received already processed as described above.
[A.] In this case, since there were just swabs that were submitted,
the serologist just basically repackaged the swabs that were given
to us for storage in our freezer. And she also cut a small portion
of each of those swabs into a bar-code labeled tube to go into a
robot that has automated a lot of the DNA process for us.

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Q. Okay. And so –
. . .
Q. So in talking about what was actually submitted on that
September 2nd, 2015 date, what were the items submitted to DPS
for analysis?
A. We received swabs from orange and black camouflage shorts,
swabs from yellow and gray camouflage shorts, buccal swabs
from [Dylan], and buccal swabs from [Dylan’s father].
2[5]. The DNA witness testified that a mixture of three individuals,
including 	the 	Complainant, 	was 	found 	on 	the 	yellow/grey
camouflage shorts. The defendant, Brent Tucker, was excluded
from being any of the three individuals on the shorts. The DNA
from two unknown people was found. However, the Jury gave no
value to the absence of Brent Tucker’s DNA and the current
research on touch DNA did not allow him to properly defend
himself. Brent Tucker was found guilty by the Jury.
2[6]. The single item of evidence was analyzed for the presence of DNA
using the methods and technology available in 2015. However,
today there are specific methods used to process evidence for
touch DNA. These methods were unknown and not used in this
case. 	Additionally, 	the 	DNA 	detection 	technology 	is 	more
sensitive today and can detect smaller amounts of DNA.
Remedy Sought Meets Daubert Standards
2[7]. Today there are specific methods used by forensic laboratories to
recover touch DNA from cloth evidence. A study of three
methods to recover touch DNA from fabric was published in
2019.This study determined the best method for recovering touch
DNA from fabric in circumstances that mimic this case.

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2[8]. The author’s summary of the article is given below.
“Touch 	DNA” 	is 	DNA 	obtained 	from 	biological 	material
transferred from a donor to an object or a person during physical
contact. This particular kind of evidence could play an essential
role in forensic laboratory work and is considered an important
tool for investigators. Even though the principal aspects of
“Touch DNA” have been extensively studied to date, there are
few reports in the research field of DNA retrieval from garments
that have been worn. This 	study 	aimed 	to 	investigate the
“handling time[,]” analyzing particularly the minimum contact
time required to deposit a sufficient amount of DNA on a
garment to produce an interpretable profile of the “handler[.]”
Moreover, three different sampling techniques were compared
(“dry swab[,]” “cutting out[,]” and “adhesive tape”) with the aim
of defining the technique that guarantees the best recovery of the
three methods tested. Analyzing the data of this experimental
model, a “handling time” of two seconds is enough to release
sufficient DNA on to a garment to obtain a complete profile.
[. . . .]
2[9]. Below is specific touch DNA collecting methodology tested in
this excellent study. These methods were alrea[]dy in use by
different labs for touch DNA analysis.
SC IE NTI F IC
Received: 9 November 2018
Accepted: 17 June 2019
Published online: 02 July 2019

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Methods
Substrates and contact simulations. Ten female volunteers
(“wearers”) wore a new brassiere (previously irradiated with UV
rays for 20 min to remove exogenous DNA) for more than 12 h
(from 8 pm to 8/9 am, minimum 12 h and maximum 13 h), under
normal conditions (during this time they carried out their usual
activities such as walking about, eating, sleeping). Prior to the
experiment, the lateral regions of the brassieres were marked in
8 areas (4 for each side).
Each brassiere was then placed in a sterile “acid-free” plastic
bag. Subsequently, after 1 h, the brassieres were removed from
the sterile bag by 10 male volunteers (“handlers”), each assigned
to a specific brassiere. Moreover, they held each region of the
brassiere for different time intervals with the same two fingers
(thumb and index) for each hand. Particularly, the two fingers
moved on two opposed specific region[s] of the brassiere for the
established time, depositing DNA on the brassiere. Prior to this,
they had washed their hands 2 h before the experiment, to allow
for sufficient DNA transfer. Furthermore, after the first touch and
between touches, they were invited to avoid contact with other
subjects, handling only their own personal objects. Moreover,
between each application, an interval of at least 60 min was
maintained.
For each handler a set of eight different handling times on
brassieres was recorded: 60 s for region A, 45 s for B, 30 s for C,
20 s for D, 10 s for E, 8 s for F, 5 s for G, and 2 s for H. Later
regions were chosen because they are in full contact with the
“wearer’s” skin. Reference profiles of both handler and wearer
were obtained with buccal swabs.
For consistency, and for the purpose of this study, the same
model of brassieres was used with bright textiles (white and
beige) 	made 	of 	cotton 	(85%) 	and 	elastane 	(15%). 	The
experimental model is illustrated in Fig. 1.
All procedures were approved by the Scientific Committee of
University of Foggia (Italy).

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All participants gave their written informed consent to take part
in the study and signed permission for obtaining DNA profiles
and all procedures were performed in accordance with the
Declaration of Helsinki. The participants were free to withdraw
their participation at any time during the course of the study.
3[0]. A brief description of a single test item follows. A brassiere is
worn in normal circumstances for 12-13 hours (A). A second
person (handler) (B) touches the bra as described in eight distinct
places (C). The bra is touched as shown (D) for the eight periods
of time above. Finally, touch DNA is collected from the bra (E)
for analysis in each of the methods being tested: dry swabbing,
adhesive tape, and cutting out. Neither were used to analyze the
evidence in this case.
3[1]. The DNA recovered from each test area was amplified and
analyzed with standard methods that are in use today. The
greatest amount of DNA was recovered by the “cutting out”
method (below). 	Most importantly, the handler’s DNA was
detected [in] all 240 samples analyzed. Each technique that was
developed to specifically analyze touch DNA recovered the
handler’s DNA every time. The handler’s DNA was frequently
the only DNA recovered when specifically testing for touch
DNA.
(Attached article, page 6)

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3[2]. The Discussion below emphasizes three issues that are important
to this document. (A) The suspected area for touch DNA must be
targeted and restricted to the area of interest. The relevant area on
the shorts in this case was not targeted. Though standard practice
at the time, the State made the error of sampling the wrong area
and obtaining a DNA profile not useful for the investigation. (B)
The “cutting out” technique produced the greatest DNA recovery.
(C) The dry swabbing technique showed the worst recovery.
Discussion
It is a known fact in the forensic community that the recovery of
DNA profiles is related to many factors when touch DNA is
collected from the clothing of a victim or suspect. Unmanageable
factors, such as the type of contact, shedder status of victim and
offender, and environmental conditions, can play significant roles
in touch DNA recovery. In this study, 10 “handler” males were
invited to touch the brassieres worn by 10 “wearer” females for
different times: this experimental model was used to enhance the
inter-individual variability, considering the presence of good or
bad shedders.[] The first step in collecting touch DNA is to target
the relevant area. Touch DNA on clothing is normally not visible
even under a forensic polilight source. Usually, the sampling
should be restricted to the area of interest, avoiding the error of
sampling the wrong area and thus obtaining a DNA profile not
useful for the investigation, with the presence of unknown or
“drop in” alleles that could be related to secondary/indirect DNA
transfer. On the other hand, the selection of the appropriate
recovery method should be standardized to obtain an optimal
DNA profile.
In this study, three sampling techniques for detecting touch DNA
were compared: “adhesive tape[,]” “cutting out” the area of
interest and “dry swab[.]” The data reported here show that in
recovering the “handler” there were no statistically significant
differences among the three techniques analyzed, even if the
“cutting out” technique showed the greatest recovery. However,
analyzing the data of the “wearer[,]” the sampling with “adhesive
tape” showed the best result among the three techniques: this
result was statistically significant. “Dry swab” seems the worst

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technique for DNA profiling in the proposed experimental model,
even though at the shortest periods of contact, this technique
yielded 	the highest number of “handler” profiles 	recovered
compared to the other techniques.
The reported DNA show that “adhesive tape” and “cutting out”
of the area are the two most efficient and sensitive techniques.
Nonetheless, each method has its own limitations: the adhesive
technique is quick and straightforward, however, DNA extraction
may require some adjustment, according to Forsberg et al.[] On
the other hand, “cutting out” the area of interest does not conserve
the garment; moreover, it cannot always be applied because not
every surface can be cut out. Another problem related to “cutting
out” is that both inner and outer surfaces are sampled at the same
time increasing the chance of wearer DNA swamping any traces
of foreign DNA present and/or generation of uninterpretable
complex mixtures.
3[3]. The study concluded that when touch DNA is not processed
properly, touch DNA will be missed, and the results detected
would of a single or major component. The study predicted that
the results obtained in this case would happen if the evidence was
processed for touch DNA using previous unscientific techniques
(below). 	The 	wearer 	was 	the 	major 	component, 	and 	two
additional unknown DNA profiles were found. It is unknown
what specific areas the DNA profiles were obtained. However,
none of the three touch DNA profiles found belong to Brent
Tucker.
Conclusion
This experimental work was performed in particular settings. In
fact, the principal limitation of this study design and thus the
limitation of the generated results, is related to the sampling area.
In routine forensic casework, when sampling for wearer DNA,
the target area is usually on the inside and larger than the surface
sampled in this experimental model: for examples, Petricevic et
al. sampled approximately 3cm [] of fabric in their study,[] while
Dong et al. sampled about 4 cm.[] The entire area of such a
sample is likely to contain the DNA of the wearer, while the

19
DNA of the handler is likely to be confined to a small area where
the garment was touched. For these reasons, in other papers and
in real casework, the wearer was frequently detected as a single
or a major component.[]
3[4]. The evidence in this case was analyzed for touch DNA before any
scientific methods to sample clothing evidence for touch DNA
had been developed. Methods are in common use today that
analyze 	clothing 	for 	touch 	DNA 	evidence 	by 	specifically
targeting the area where touching was alleged to have occurred.
The scientific findings and DNA laboratory methods referenced
above show that touch DNA analysis methods are now in use that
meet the three Daubert requirements for admissibility in Court:
1. Must have a known or potential error rate. – The method used
in the article above detected the handler’s touch DNA in 240
out of 240 samples tested under these conditions. The Jury
now has a scientific baseline to judge for themselves what
value to put on the presence or absence of touch DNA.
2. Standards must exist that control the method’s operation. –
the standards and controls used in the referenced publication
are 	clearly 	explained 	and 	peer-reviewed. 	Most 	DNA
laboratories currently use touch DNA protocols with the
required scientific controls and standards.
3. It must be published and have widespread acceptance in the
relevant scientific community. – the method above was
published by Nature, one of the top scientific publications in
the world. The touch DNA method above was peer-reviewed
by leading forensic scientists before publication. Touch DNA
methods, specifically area targeting, are in common use in
DNA laboratories today.
3[5]. It takes time for DNA laboratories to develop and validate
protocols after a new analysis method meets the conditions
outlined above. In February 2024[,] I received discovery for a
case analyzed in 2023 by the Texas DPS laboratory. The DNA
lab notified the prosecutors that, in addition to the reported
analysis, cuttings can be taken from the cloth evidence for

20
analysis. This method is now validated and used in DNA
laboratories.
Conclusion
3[6]. 	My 	conclusions 	are 	based 	on 	my 	education, 	training, 	and
experience 	in 	the 	field 	of 	genetics 	including 	my 	personal
knowledge 	from 	working 	with 	DNA 	and 	my 	professional
expertise in the use of DNA evidence in the courtroom.
3[7]. The facts and information provided show that significant scientific
progress has been made in the processing and analysis of touch
DNA on evidence since the evidence in this case was analyzed.
These Daubert admissible methods and their Court admissible
error rates were unknown to the State and Defense at the time of
analysis or trial.
3[8]. The prosecutor screened the Jury based on the false, but unknown,
premise that touch DNA would not be expected to be found on
the evidence. Scientific data indicates that touch DNA would
almost certainly be found if the evidence was analyzed using
today’s methods.
3[9]. All three touch DNA recovery methods tested found the handler’s
touch DNA in every evidence sample specifically collected and
analyzed for touch DNA. However, the “cutting out” method
produced the strongest DNA profiles. We ask the Court to re-
analyze the yellow/grey camouflage shorts in this case with the
“cutting out” method to produce the most probative evidence for
the Jury to evaluate.
4[0]. The Defendant has the right to have all scientific evidence against
him presented fairly and accurately to the Jury by the parties
representing the State without the presence of a DNA expert. The
prosecutor unknowingly gave the Jury false information and
screened the Jury based on their belief in the false information.
4[1]. This is a perfect case for the re-analysis of evidence under Chapter
64. Scientific methods for the analysis of touch DNA that

21
produce probative evidence are now available or that were not
available at the time of the original touch DNA analysis.
4[2]. Additionally, today’s DNA analysis technology is more sensitive
to small amounts of DNA being recovered from evidence. Based
on the scientific study 	I provided, I believe that 	the true
perpetrator’s DNA profile will be obtained if the evidence is re-
analyzed using the “cutting out” method described above.
The trial court denied Tucker’s motion, stating that it had considered the motion,
the State’s response, the trial record, and the contents of the Court’s file. The trial
court found:
1. The chain of custody is insufficient to establish that the sliding
shorts have not been altered or contaminated;
2. Identity was not and is not an issue in the case;
3. Testing the sliding shorts using the method requested by the
defendant is not reasonably likely to provide results more accurate
and probative than the results of the previous testing; and
4. The defendant has not established by a preponderance of the
evidence that he would not have been convicted if exculpatory
results had been obtained through DNA testing of the sliding shorts.
ANALYSIS
In four issues, Tucker claims that the trial court erred in making each of its
adverse findings.
When reviewing the trial court’s Chapter 64 rulings, we employ a bifurcated
standard. See Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017); Rivera v.
State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We give almost total deference to

22
the trial court’s findings of historical fact and application of the law to facts which
hinge on witnesses’ credibility and demeanor. See Reed, 541 S.W.3d at 768; Ex parte
Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). We consider all other
application-of-law-to-fact questions de novo. See Gutierrez, 337 S.W.3d at 890.
Since the trial court did not conduct a hearing or hear testimony from witnesses on
the post-conviction DNA motion, we will review the issue de novo. See Smith v.
State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005).
Under Article 64.03, a convicted person is not entitled to DNA testing unless
he can show that there is “greater than a 50% chance that he would not have been
convicted if DNA testing provided exculpatory results[.]” Prible v. State, 245
S.W.3d 466, 467-68 (Tex. Crim. App. 2008); see Tex. Code. Crim. Proc. Ann. art.
64.03(a)(2)(A). A defendant meets this burden “if the record shows that exculpatory
DNA test results, excluding the defendant as the donor of the material, would
establish, by a preponderance of the evidence, that the defendant would not have
been convicted.” Gutierrez, 337 S.W.3d at 899. A motion to obtain post-conviction
DNA testing must include an affidavit alleging facts showing that the test results
will be so exonerating that he would not have been convicted had the results been
available. Dunning v. State, 572 S.W.3d 685, 697 (Tex. Crim. App. 2019). The
convicted person must also allege and prove that the biological material he seeks to
have DNA tested was not previously tested, or that the biological material was

23
previously tested and can be tested with newer techniques. See Tex. Code Crim.
Proc. Ann. art. 64.01(b)(1), (2)(A).
Issue One: Chain of Custody
Tucker’s first issue argues that the trial court erred in finding the chain of
custody insufficient to establish that Dylan’s shorts had not been “altered or
contaminated.” In support of this contention, Tucker relies on Lumpkin’s July 18,
2024 declaration, which states:
(1) 	“I am over the age of eighteen (18) years, of sound mind, and
otherwise capable of making this declaration. I have personal
knowledge of the facts and statements contained herein, and all are
true and correct.
(2) 	I work for Montgomery County Sheriff’s Office as the Property
and Evidence Manager in the Criminal Investigations Division –
Crime Laboratory. One of my responsibilities is the custodian of
the evidence.
(3) 	I was asked by counsel for Defendant, Brent Tucker, Trial Cause
No. 15-09-09853-CR, whether certain articles of clothing were
available for DNA testing and whether the chain of custody was
intact with regards to the clothing, specifically a pair of shorts
worn by the complainant.
(4) 	I affirm that the articles of clothing worn by the complainant are
in the custody of the Montgomery County Sheriff’s Office and the
chain of custody has not been broken.”
Lumpkin’s declaration states that the evidence still exists and that the chain
of custody was intact, as required by the Texas Code of Criminal Procedure. See
Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A). In this case, however, there were

24
two complainants and Ehmann testified that two pairs of Dylan’s shorts were tested,
a yellow and grey pair and an orange and black pair. Lumpkin’s declaration,
however, refers to a single pair of shorts and does not identify the shorts by color or
in any other manner. We do not know whether the pair of shorts referenced in
Lumpkin’s declaration is the yellow and grey pair, which excluded Tucker as a DNA
contributor, or the orange and black pair, from which no useable DNA was obtained
before trial. Lumpkin’s declaration therefore does not indicate that the pair of shorts
Tucker seeks to retest (1) still exists and is in a condition making DNA testing
possible; and (2) has been subjected to a chain of custody sufficient to establish that
is has not been substituted, tampered with, replaced, or altered in any material
respect. See id.
Lumpkin’s October 25, 2024 affidavit, which the State attached to its response
to Tucker’s motion, provides additional information. After repeating Lumpkin’s
qualifications to make the affidavit, it states:
Among the evidence we are storing for case number 15A013543 is one
brown paper bag with the contents listed as:
(1) white plastic trash bag with (1) grey & yellow shorts inside the trash
bag, and (1) Under Armour “sliding shorts” (baseball underwear)
inside the trash bag. Detective Jody Armstrong submitted these
items. This brown bag has two evidence seals. The first seal is the
original 	evidence 	seal 	with 	a 	signature/date 	from 	Detective
Armstrong. The second evidence seal is from former CSI Weldon
Richards, dated 08/28/2015, when he processed both items for
DNA. He swabbed the clothing and submitted DNA swabs to our

25
evidence section. These DNA swabs were submitted to DPS for
analysis.
Attached to this affidavit are photos of the brown evidence bag; gray
sheets for the shorts, underwear, and the swabs; as well as the chain
of custody information for the shorts, underwear, and swabs. These
attachments may contain redactions as required by law and/or to
protect the victim’s privacy.
Although Lumpkin’s 2024 affidavit distinguishes the two pairs of shorts from
one another, it also states that the two pairs had been stored in a single plastic bag.
Neither Lumpkin’s declaration nor her affidavit establishes that either pair of shorts
“is in a condition making DNA testing possible[,]” as statutorily required. Tex. Code
Crim. Proc. Ann. art. 64.03(a)(1)(A)(i). Although the trial court did not specify the
reasoning behind its finding that the “chain of custody [was] insufficient to establish
that the sliding shorts [had] not been altered or contaminated[,]” it may have relied
on Lumpkin’s affidavit stating that the two pairs of shorts were stored together. In
Reed, the Court of Criminal Appeals affirmed the trial court’s denial of forensic
DNA testing, citing the testimony that the items of evidence were not “separately
packaged, but instead commingled in a common repository.” 541 S.W.3d at 770.
The Reed court also referenced the ungloved individuals who had handled the
evidence, thus possibly contaminating it. 	See id. at 769-70. Here, the record
indicated that either or both of Dylan’s parents may have handled the shorts and that
the shorts may have been commingled with family laundry before being delivered
to the police. Given this evidence, the trial court did not err in determining that

26
Tucker 	failed 	to 	establish 	that 	Dylan’s 	shorts 	“[had] 	not 	been 	altered 	or
contaminated[.]” 	Consequently, 	Tucker 	has 	not 	complied 	with 	the 	initial
requirements of article 64.03 and the trial court did not err in so finding. See Tex.
Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(ii).
We overrule Tucker’s first issue.
Issue Two: Identity
In his second issue, Tucker contends that the trial court erred in finding that
identity was not an issue in this case.
According to Prible:
The identity requirement in Chapter 64 relates to the issue of identity
as it pertains to the DNA evidence. Therefore, if DNA testing would
not determine the identity of the person who committed the offense or
would not exculpate the accused, then the requirement of Article
64.03(a)(2)(A) has not been met.
245 S.W.3d at 470.
Tucker does not argue that the retesting he proposes would identify the person
who committed the offense in question, and he therefore has not satisfied the identity
requirement. See id. Instead, Tucker contends that the offense in question did not
take place. Chapter 64, however, “presupposes that an offense took place. Chapter
64 is not a means to prove that an offense did not occur.” Murrieta v. State, 698
S.W.3d 337, 344 (Tex. App.—Texarkana 2024, pet. ref’d). Since Tucker’s Motion
for forensic DNA testing does not seek to identify the perpetrator, but seeks to show

27
that no indecency offense occurred, both Prible and Murrieta support the trial
court’s decision that identity was not an issue in this case. 245 S.W.3d at 470; 698
S.W.3d at 344.
We overrule Tucker’s second issue.
Issue Three: Accuracy of Results
Tucker’s third issue posits that the trial court erred in finding that the proposed
testing “is not reasonably likely to provide results more accurate and probative than
the results of the previous testing.” Tucker relies on Collins’ work to support this
argument, and Collins relies on a study showing that touch DNA is recoverable from
clothing under the circumstances of the study. The circumstances of the study,
however, were insufficiently similar to the circumstances of this case to support
Tucker’s point: that the absence of Tucker’s touch DNA on Dylan’s shorts would
demonstrate Tucker’s alleged innocence. See Valdez v. State, 776 S.W.2d 162, 168
(Tex. Crim. App. 1989) (requiring out-of-court experiments to be conducted under
similar circumstances).
Although we do not doubt that the science of DNA testing has progressed
since Dylan’s shorts were tested in 2015, we do not accept the proposition that the
absence of Tucker’s DNA on Dylan’s shorts would be more probative now than it
was in 2015. See Routier v. State, 273 S.W.3d 241, 250 (Tex. Crim. App. 2008). In

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Routier, the appellant moved to retest blood stains that the State tested before trial.
Denying this request, the court stated:
As for the stains that were tested and did yield a result, the appellant
must show that new testing techniques will provide a reasonable
likelihood of results that are more accurate and probative than the
results of the previous tests. It may well be that the new testing
techniques would yield more accurate results, in the sense that they
may have a higher power to exclude potential DNA donors. But on the
facts of this case, the appellant has not shown a reasonable likelihood
that those results would prove more probative. . . . While such a result
is remotely possible, the reasonable likelihood is that new testing will
only confirm the results of the old testing, albeit with greater accuracy.
At least under these circumstances, the appellant has not shown the new
testing to be more probative, and she is therefore not entitled to it.
Id.
In the instant case, Tucker claims that new testing would exclude him as a
contributor of the DNA found on Dylan’s shorts, thus showing that he did not
commit the offense. Therefore, as in Routier, the proposed “new testing will only
confirm the results of the old testing, albeit with greater accuracy.” Id. Since Tucker,
himself, contends that the new testing he seeks will exclude him as a DNA
contributor, this proposed retest would only confirm the results of the old testing,
and exclude Tucker as a contributor. The rationale of Routier therefore dictates that
Tucker is not entitled to retest evidence with newer techniques. See id.
We overrule Tucker’s third issue.

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Issue Four: Probability of Conviction
In his final issue, Tucker contends that he likely “would not have been
convicted if exculpatory results had been obtained through DNA testing.” To
prevail, Tucker must establish “that there is greater than a 50% chance that he would
not have been convicted if DNA testing provided exculpatory results[.]” Prible, 245
S.W.3d at 467-68. In this context, “exculpatory results” means “results excluding
the convicted person as the donor of” the biological material tested. LaRue v. State,
518 S.W.3d 439, 446 (Tex. Crim. App. 2017) (citations omitted). Tucker cannot
satisfy his burden on this point ‘“if the record contains other substantial evidence of
guilt independent of that for which [he] seeks DNA testing.”’ Hall v. State, 569
S.W.3d 646, 656 (Tex. Crim. App. 2019). Dylan’s trial testimony constituted other
substantial evidence of guilt. See Murrieta, 698 S.W.3d at 343-44 (citations omitted)
(relying on witness testimony as other substantial evidence of guilt).
The exculpatory results Tucker hoped to obtain would show the absence of
his DNA on Dylan’s shorts. In Tucker’s view, the anticipated absence of his DNA
from Dylan’s shorts would show that Tucker did not commit the offense charged
and thus would not have been convicted. This argument, however, overlooks the fact
that Tucker was convicted despite being excluded as a contributor of the DNA on
Dylan’s yellow and grey shorts, the pair Tucker sought to retest. Since the absence
of Tucker’s DNA from Dylan’s shorts did not preclude Tucker’s 2017 conviction, it

30
is incongruous to argue that a more sensitive test yielding the same negative result
would lead to Tucker’s acquittal. See Rivera, 89 S.W.3d at 60 (“While the presence
of the child’s DNA under appellant’s fingernails could indicate guilt, the absence of
such DNA would not indicate innocence.”).
We overrule Tucker’s fourth issue.
CONCLUSION
Having overruled all of Tucker’s issues, we affirm the trial court’s Order.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on September 4, 2026
Opinion Delivered October 21, 2026
Do Not Publish
Before Johnson, Wright and Chambers, JJ.