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 postconviction 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 postconviction 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.
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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
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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 applicationof-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
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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
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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).
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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 subissue. See TEX. R. APP. P. 47.1.
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