In In re Kennard, No. 03-07-00308-CR, 2008 WL 899606 (Tex. App.-Austin 2008, no pet.), the defendant, who had been convicted of aggravated sexual assault, admitted to having sexual intercourse with the victim, but, in order to undermine the victim's credibility, sought DNA testing to show the victim was lying about not having sexual intercourse with other men on the night in question.
Specifically, the defendant conceded that his identity was and is not an issue, but nevertheless argued that the identity of the second spermatozoa contributor was an issue. Id.
The Austin Court of Appeals disagreed.
In considering the plain language of article 64.03(a)(1)(B), the court concluded that "identity" must mean the identity of the perpetrator of the offense. Id.
The court additionally explained that, at the time the legislature adopted chapter 64, it also enacted a statute "providing for the preservation of biological material that would establish the identity of the person who committed the offense or exclude a person from the group who could have committed the offense." Id. ; see TEX. CODE CRIM. PROC. ANN. art 38.43 (Vernon Supp. 2009).
Thus, the court held that "identity" as used in article 64.03(a)(1)(B) means the identity of the perpetrator and affirmed the trial court's order denying the motion for DNA testing, explaining it was undisputed that the identity of the perpetrator was not an issue.