Full Opinion

NUMBER 13-25-00444-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG RICKY LEE PADY, Appellant, v. THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY, TEXAS MEMORANDUM OPINION Before Justices Peña, West, and Fonseca Memorandum Opinion by Justice West Appellant Ricky Lee Pady challenges the trial court’s denial of his motion for post- conviction DNA testing which sought retesting of previously tested evidence. See TEX. CODE CRIM. PROC. ch. 64. Appellant argues the trial court erred because it did not “apply the required statutory presumption that additional DNA testing” would show exculpatory results. We affirm because appellant failed to show the evidence previously subjected to DNA testing “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.” See id. art. 64.01(b)(2)(A). I. BACKGROUND Appellant was convicted in 2007 of the murder of Denise Ortman, and he was sentenced to fifty years’ incarceration. 1 On April 8, 2025, appellant filed a motion for post- conviction DNA testing of certain DNA evidence recovered from Ortman’s vehicle and the crime scene. 2 Specifically, appellant sought retesting of this evidence “using the most probative and advanced means of testing, including STR or mini-STR testing, Y-STR testing, as well as mitochondrial DNA testing.” Attached to appellant’s motion were two laboratory submission forms and one laboratory report from the Texas Department of Public Safety (DPS). The submission forms listed evidence that the State submitted to DPS for DNA testing. One of the submission forms listed appellant and “Rex Frautschi” as suspects and showed that the State submitted an “oral swab” from Frautschi for testing. The DPS lab report listed “all of the items and samples recovered by police” sent for DNA testing in this case. It indicated the State submitted six batches of evidence for testing, totaling fifty-two items or samples. Submissions I and II contained items or samples from Ortman’s vehicle and the crime scene. Submission II also included blood 1 This Court affirmed Pady’s conviction. Pady v. State, No. 13-07-00075-CR, 2008 WL 5662120, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 13, 2008, pet. ref’d) (mem. op., not designated for publication). 2 Appellant also requested “new testing on 2 cellular phones that were not entered into evidence during his trial.” At the hearing on appellant’s motion, it was revealed there was only one cell, and the parties generally agreed there was likely no biological material on it. However, appellant does not challenge the trial court’s denial of his request to test the cell phone for DNA evidence. Accordingly, we do not address the cell phone in our background or analysis. See TEX. R. APP. P. 47.1. 2 samples from appellant and Ortman. Submissions III, IV, V, and VI included an oral swab from Frautschi and multiple DNA samples from Ortman. As to testing methods, the report noted the DNA isolated from the submissions were “analyzed using a PCR based method,” and “DNA STR (short tandem repeat) loci were characterized.” As to the DNA results, the report indicated thirteen samples of apparent blood stains from the crime scene matched only the DNA profile of Ortman. Partial DNA profiles obtained from the handle of a knife found in the vehicle, an apparent blood stain on the vehicle’s front bumper, and an “apparent bloodstain on the GPS faceplate of trash heap” at the scene were also only consistent with Ortman’s DNA profile. A cigarette butt found inside Ortman’s vehicle, and a shirt recovered from Frautschi’s residence only matched the DNA profile of appellant. Lastly, two other cigarette butts found inside Ortman’s vehicle only matched the DNA profile of Frautschi. Appellant’s motion largely contended the DPS lab report “fail[ed] to show what DNA sample of [appellant] was used by the DPS laboratory to make its ‘matches’ to [appellant],” because, he alleged, the report “clearly made comparisons of items against” Frautschi’s oral swab. He contended if a new sample of DNA was taken from appellant today and “tested against all items previously tested” in Submissions I and II, “there might be completely different results as we cannot know what DPS used as [appellant]’s sample in its original testing.” The trial court held a hearing on appellant’s motion. Appellant’s counsel conceded that, from his research and review of the DPS records, the DNA testing methods used in appellant’s case “appear[ed] to be the same sort of testing methods that they use today.” Nevertheless, counsel requested the trial court order retesting of all the previously tested 3 evidence “to see if newer testing can provide a result that would point to Rex Frautschi as being a DNA contributor.” He argued if the evidence contained Frautschi’s DNA, then that would be “exculpatory evidence that would favor the eventual moving for a new trial.” The trial court denied the motion at the conclusion of the hearing, stating it did not hear any evidence “of any great advancement in DNA testing in the last” two decades “that would make these findings obsolete or questionable.” The trial court signed the order denying appellant’s motion on August 13, 2025. This appeal ensued. II. STANDARD OF REVIEW AND APPLICABLE LAW We review the trial court’s denial of post-conviction DNA testing under a bifurcated standard. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). We afford almost total deference to the trial court’s determination of issues of historical fact and application of the law to fact issues turning on witness credibility and demeanor. Id.; Holberg v. State, 425 S.W.3d 282, 285 (Tex. Crim. App. 2014). However, we consider “all other application- of-law-to-fact questions” de novo. Reed, 541 S.W.3d at 768–69. Texas Code of Criminal Procedure Chapter 64 permits a convicted person to file a post-conviction motion, in the court in which they were convicted, requesting items that were previously tested for DNA be retested or DNA testing be performed on items that were not tested at the time of trial. TEX. CODE CRIM. PROC. art. 64.01. As to retesting items that were previously DNA-tested at the time of trial, the convicted person must show those items (1) “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” or (2) the previously tested items were tested “at a laboratory that ceased conducting DNA testing after an audit by the Texas Forensic Science Commission 4 revealed the laboratory engaged in faulty testing practices” and were tested “during the period identified in the audit as involving faulty testing practices.” Id. art. 64.01(b)(2). The convicted person must attach an affidavit to his motion providing “statements of fact” in support of the claims. Id. art. 64.01(a-1). If these predicates are satisfied, the convicting court may order forensic DNA testing only if the court also finds: (1) the evidence “still exists and is in a condition making DNA testing possible”; (2) the evidence “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”; (3) “there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing”; and (4) “identity was or is an issue in the case.” Id. art. 64.03(a)(1). The convicted person must then establish by a preponderance of the evidence that (A) they “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.” Id. art. 64.03(a)(2). As to the former requirement, the trial court must assume without deciding that the results of the post-conviction DNA testing would prove favorable to the convicted person. See id. art. 64.03(a)(2)(A); Reed, 541 S.W.3d at 774; Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008). III. DISCUSSION Appellant argues the trial court erred because it did not “apply the required statutory presumption that additional DNA testing” would show exculpatory results. See TEX. CODE CRIM. PROC. art. 64.03(a)(2)(A); Reed, 541 S.W.3d at 774; Routier, 273 S.W.3d at 257. Appellant also contends the DPS lab report is unclear as to what DNA sample 5 from appellant was used to compare his DNA to the evidence collected. He seems to argue the trial court was required to presume the DPS report erroneously mixed up appellant’s DNA with Frautschi’s oral swab listed on the submission form. However, appellant presented no evidence that the previously tested items or samples could be subjected to newer testing techniques that would lead to exculpatory results. See TEX. CODE CRIM. PROC. art. 64.01(b)(2). Appellant’s counsel conceded at the hearing that the DNA testing methods used in appellant’s case “appear[ed] to be the same” testing methods used today. Indeed, the lab report shows the DPS laboratory used “STR” testing which is one of the testing methods appellant requested in his motion for post-conviction DNA testing. Because appellant failed to comply with his initial burden under Article 64.01(b), he cannot invoke the “presumption” under Article 64.03(a)(2)(A). 3 See Reed, 541 S.W.3d at 769, 774 (analyzing whether appellant established elements under Article 64.03(a) only after finding appellant met his initial burden under Article 64.01(b)); Routier, 273 S.W.3d at 256–57 (same). As to whether the DPS report is “unclear,” we note “exculpatory results” under Article 64.03(a)(2)(A) “means only results excluding the convicted person as the donor of this material.” Reed, 541 S.W.3d at 774 (citing Holberg, 425 S.W.3d at 287). Thus, the presumption under Article 64.03(a)(2)(A) does not require the trial court to presume appellant’s DNA was mixed up with Frautschi’s DNA. See id. Moreover, whether the DPS report is unclear is a fact question, and we afford almost total deference to the trial court’s determination of fact issues. See Reed, 541 S.W.3d at 768–69; Holberg, 425 S.W.3d at 3 Appellant also did not allege or prove the previously tested items or samples were tested “at a laboratory that ceased conducting DNA testing” due to an audit which “revealed the laboratory engaged in faulty testing practices.” TEX. CODE CRIM. PROC. art. 64.01(b)(2). 6 285. Here, the DPS report indicated the evidence collected for DNA testing was compared to separate DNA profiles from Ortman, appellant, and Frautschi. In this regard, we cannot find the trial court abused its discretion. Moreover, Frautschi was a listed suspect in DPS lab report, and the record is silent as to why the State proceeded against appellant and not against Frautschi. Even if the trial court presumed testing of the previously tested evidence would reveal exculpatory results, the court was not provided with any information as to how the results would connect to the crime or would have altered the outcome of the trial. See Reed, 541 S.W.3d at 774 (“[Appellant] fails to articulate why the presumed exculpatory results of the items he wanted tested would result in the jury finding him not guilty, as opposed to merely ‘muddying the waters’ as the trial judge concluded.”). Accordingly, we overrule appellant’s sole issue. 4 IV. CONCLUSION The trial court’s judgment is affirmed. JON WEST Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 20th day of August, 2026. 4 Appellant argues in a sub-issue that “[t]he trial court made no findings with respect to whether [he] met his burden under Article 64.01 as to chain of custody and biological evidence,” and without these findings, there is a presumption he met his burden to prove these elements. Because we overruled appellant’s first issue which was dispositive to the outcome of this appeal, we need not address this sub- issue. See TEX. R. APP. P. 47.1. 7