Esparza v. State
A sexual assault victim's assertion that she had consensual sex
with another man two days before she was sexually assaulted by the
defendant does not preclude the defendant, during the trial, from seeking DNA
testing of material in the rape kit under CCP Chapter 64. The victim's prior sexual encounter did not preclude the defendant
from establishing that the DNA testing could have yielded exculpatory
results. In a fact-intensive opinion the Court compared to Smith v.Slate
(165 S.W.3d 361 (Tex. Crim. App. 2005)), the Court ruled that there was
no scientific evidence supporting the contention that biological
material deposited two days before the sexual assault would still be
present in the victim when the rape kit was conducted.
