Luzalbert Hernandez v. the State of Texas ( 2022 )

NUMBER 13-20-00216-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUZALBERT HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Luzalbert Hernandez appeals the trial court’s denial of his post-
conviction motion for DNA testing brought under Chapter 64 of the Texas Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 64.01. Specifically, Hernandez
contends: (1) the evidence was sufficient to show biological material existed; (2) the
material is in the possession of the state; (3) exculpatory results would have cast serious
doubt on his conviction; and (4) the trial court erred in finding his motion for DNA testing
to be frivolous. We affirm.
I. BACKGROUND1
Hernandez and four other individuals—Jesse Ray Garcia, Thomas Sedillo Cano
III, Johnathan Paul Escalona, and Florentino Tovar Jr.—were indicted with engaging in
organized criminal activity and the aggravated assault of Abel Resendez. See TEX. PENAL
CODE ANN. §§ 71.02, 22.02 The indictment alleged the five defendants were acting “as
parties or principals” during the commission of these offenses. The indictment further
alleged that the defendants used or exhibited a deadly weapon during the commission of
the assault.
At trial, Tovar, one of the co-defendants, testified that he was present at a boot
shop owned by Manuel Moreno on April 5, 2016. According to Tovar, that evening, he
witnessed Hernandez and Cano enter the boot shop and heard Hernandez tell Resendez,
“Get up. Let’s fight.” Tovar was able to observe parts of the assault through the window,
1 In its order denying Hernandez’s motion for DNA testing, the trial court took judicial notice of its
files from Hernandez’s trial. We note that the Texas Court of Criminal Appeals has held that, in Chapter 64
proceedings, “all of the evidence that was before the trial court before it made its ruling should be available
to, and considered by, the reviewing court.” Asberry v. State, 507 S.W.3d 227, 229 (Tex. Crim. App. 2016).
We also note that an “appellate court may take judicial notice of its own records in the same or related
proceedings involving the same or nearly the same parties.” Turner v. State, 733 S.W.2d 218, 223 (Tex.
Crim. App. 1987); see Flores v. State, 491 S.W.3d 6, 7 n.1 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d); Jacobs v. State, 115 S.W.3d 108, 112-13 (Tex. App.—Texarkana 2003, pet. ref’d); see also State v.
Bryan, No. 11-17-00236-CR, 2019 WL 6337604, at *2 (Tex. App.—Eastland Nov. 27, 2019, no pet.) (mem.
op., not designated for publication); Ambriati v. State, No. 09-15-00065-CR, 2015 WL 6998616, at *1 (Tex.
App.—Beaumont Nov. 12, 2015, pet. ref’d) (mem. op., not designated for publication). Bearing this in mind,
on our motion, we take judicial notice of the appellate records from Hernandez’s direct appeal of his
underlying conviction for the purpose of resolving the appeal before us. See Hernandez v. State, No. 13-
17-00271-CR, 2018 WL 3583835, at *1–10 (Tex. App.—Corpus Christi–Edinburg July 26, 2018, pet ref’d)
(mem. op., not designated for publication).
2
and saw Hernandez fighting with Resendez while Moreno held on to Cano.
Garcia, another co-defendant, testified that he witnessed Hernandez and Cano
enter the boot shop and assault Resendez. According to Garcia, at a certain point, the
men spilled into a back room of the shop and Garcia lost sight of the fight.
Moreno, the boot shop owner, testified to seeing two men, one of whom was
Hernandez, rush into his store and strike Resendez. The fight eventually continued into
a back room, and Moreno tried to separate the parties by holding onto one of the
assailants. Moreno testified that he had been keeping a golf club in his boot shop at the
time of the assault. He further stated that he did not see Hernandez grab the golf club,
but that he observed Hernandez swinging it at Resendez. Moreno was later able to pull
the golf club away from Hernandez during the fight.
The victim, Resendez, also testified regarding the assault. According to Resendez,
two or three people entered the boot shop, including Hernandez and Cano, and started
to attack him. He observed Hernandez walk in with a golf club and stated that he was
struck twice by Hernandez with the golf club.
The defense’s theory at trial was that Hernandez was present during the assault
and fought with Resendez, but that it was a one-on-one fight where no golf club was used.
That, rather than being gang-related, this was simply a personal dispute between
Resendez and Hernandez.
At the conclusion of the trial, the jury charge authorized the jury to convict
Hernandez of engaging in criminal activity and aggravated assault as a principal or a party
to the offense. The jury returned a general verdict finding Hernandez guilty as alleged in
3
the indictment. Hernandez appealed his conviction, which was later affirmed. Hernandez
v. State, No. 13-17-00271-CR, 2018 WL 3583835, at *1–10 (Tex. App.—Corpus Christi–
Edinburg July 26, 2018, pet ref’d) (mem. op., not designated for publication).
Subsequently, on March 30, 2020, Hernandez filed a motion for post-conviction
DNA testing on the golf club. In his motion, he specifically requested “fingerprints/touch
DNA testing.” On April 7, 2020, the trial court denied Hernandez’s motion by written order
without a hearing. The trial court found that Hernandez had 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 golf club. Hernandez filed a timely
notice of appeal.
We abated this appeal and remanded to the trial court for further findings
concerning Hernandez’s indigency and whether he was entitled to a court-appointed
attorney. The trial court found Hernandez’s motion for post-conviction DNA testing to be
“frivolous.” Additionally, the trial court found that identity was and is not an issue in this
case, that no evidence of biological material existed on the golf club, and that this was
not the type of case where exculpatory DNA testing would have changed the outcome at
trial. The trial court further found that since no reasonable grounds existed for the motion
to be filed, Hernandez was not entitled to appointed counsel.
II. APPLICABLE LAW & STANDARD OF REVIEW
Under Chapter 64 of the Texas Code of Criminal Procedure, “[a] convicted person
may submit to the convicting court a motion for forensic DNA testing of evidence that has
a reasonable likelihood of containing biological material.” TEX. CODE CRIM. PROC. ANN. art.
4
64.01(a-1). To be entitled to DNA testing under Chapter 64, several requirements must
be met first. See id. arts. 64.01, 64.03; see also Hall v. State, 569 S.W.3d 646, 655 (Tex.
Crim. App. 2019) (confirming that to be entitled to postconviction DNA testing, “a
convicted person must satisfy the requirements of Chapter 64 of the Code of Criminal
Procedure”). The convicting court may order forensic DNA testing only if the statutory
preconditions are met. See TEX. CODE CRIM. PROC. ANN. art. 64.03.
Before a trial court may order DNA testing under Chapter 64, it must first find:
(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.
Id. art. 64.03(a)(1).
Additionally, the movant must show, by a preponderance of the evidence, that he
would not have been convicted if exculpatory results had been obtained through DNA
testing, and that the request for DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice. Id. art. 64.03(a)(2)(A). To meet the
burden of the Chapter 64 requirements, a convicted person must provide statements of
fact in support of his claims; general, conclusory statements are insufficient. See
Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010) (stating that “a mere
5
assertion or a general claim” will not satisfy an appellant’s Chapter 64 burden).
When reviewing a ruling on a motion for DNA testing, we defer to the “trial court’s
determination of issues of historical fact and application-of-law-to-fact issues that turn on
credibility and demeanor, while we review de novo other application-of-law-to-fact
issues.” Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). However, because the
trial court did not conduct a live hearing on the post-conviction motion for DNA testing,
we review the issues raised de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex.
Crim. App. 2005).
III. TEX. CODE. CRIM. PROC. ANN. ARTS. 64.03(a)(1)(C) & 64.03(a)(2)(A)
The trial court found identity was not and is not an issue and that Hernandez had
not established by a preponderance of the evidence that an exculpatory DNA test result
would have changed the outcome of his trial. Hernandez challenges these findings.
A. Identity Issue
The identity requirement in Chapter 64 specifically relates to the issue of identity
as it pertains to the DNA evidence. Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App.
2008). If DNA testing would not determine the identity of the person who committed the
offense or would not exculpate the accused, then the requirements of Chapter 64 have
not been met. Id. Identity is not an issue when physical evidence is collected from a
common area and could have been left by any number of people, meaning that an
exculpatory DNA result would not also exclude the movant as the assailant. Cate v. State,
326 S.W.3d 388, 390 (Tex. App.—Amarillo 2010, pet. ref’d); Pegues v. State, 518 S.W.3d
529, 535 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
6
Here, even if an exculpatory touch DNA result was produced by testing the golf
club, it would not identify the person who committed the assault or demonstrate that
Hernandez did not participate in the assault. See Prible, 245 S.W.3d at 470. Such an
exculpatory result would merely demonstrate that a third party handled the golf club,
which was consistent with Moreno’s testimony that he kept the golf club in his shop and
was able to pull it away from Hernandez. See Cate, 326 S.W.3d at 390. Thus, the trial
court correctly concluded that Hernandez has not shown identity was and is an issue in
this case.
B. Effect of Exculpatory Results
The record also supports the trial court’s finding that Hernandez has not
established by a preponderance of the evidence that an exculpatory DNA test result
would have changed the outcome of his trial.
DNA testing is permitted only if “the convicted person establishes by a
preponderance of the evidence that the person would not have been convicted if
exculpatory results had been obtained through DNA testing.” TEX. CODE CRIM. PROC. ANN.
art. 64.03(a)(2)(A). A convicted person must show a greater than 50% chance that he
would not have been convicted had exculpatory results from the requested DNA testing
been available at trial. Hall, 569 S.W.3d at 655. “Exculpatory results” means only results
excluding the convicted person as the donor of the DNA. Id. at 655–56. “A ‘favorable’
DNA test result must be the sort of evidence that would affirmatively cast doubt upon the
validity of the inmate's conviction; otherwise, DNA testing would simply ‘muddy the
waters.’” Ex parte Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011) (quoting Rivera,
7
89 S.W.3d at 59).
Evidence that shows someone other than the convicted person was involved in the
crime does not exonerate him. Hall, 569 S.W.3d at 657–58. DNA analysis is more
probative when the number of potential DNA contributors to an item of evidence is
reasonably limited. Id. “[T]ouch DNA poses special problems because ‘epithelial cells are
ubiquitous on handled materials,’ because ‘there is an uncertain connection between the
DNA profile identified from the epithelial cells and the person who deposited them,’ and
because ‘touch DNA analysis cannot determine when an epithelial cell was deposited.’”
Hall, 569 S.W.3d at 658 (quoting Reed v. State, 541 S.W.3d 759, 776–77 (Tex. Crim.
App. 2017)). Consequently, the Texas Court of Criminal Appeals has recognized that “the
significant possibility of [touch] DNA being deposited by an innocent person reduces the
probative value of any [touch] DNA test result.” Id.Here, it is very likely that an exculpatory DNA result from the golf club was
contributed by an innocent person. As mentioned above, Moreno testified that the golf
club was in his store for a long time prior to the assault and that he was able to pull the
golf club away from Hernandez during the assault.2 An exculpatory result may therefore
be attributed to Moreno or any number of shop-goers, and thus, the probative value of an
exculpatory DNA test result from the golf club is severely reduced. Hall, 569 S.W.3d at
658.
Further, “Texas courts have consistently held that a movant does not satisfy his
burden under Article 64.03 if the record contains other substantial evidence of guilt
2 The record also indicates the prosecutor, defense counsel, and Moreno handled the golf club
without gloves during Hernandez’s trial. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(ii).
8
independent of that for which the movant seeks DNA testing.” Swearingen, 303 S.W.3d
at 736. Two of Hernandez’s accomplices linked him to the scene of the crime and testified
to witnessing Hernandez assault Resendez. Moreno and Resendez both testified that
Hernandez swung the golf club at Resendez. An exculpatory touch DNA result would be
consistent with the defense’s theory that he did not use a golf club during the commission
of the assault, but it would also be consistent with the evidence presented by the State
that both Moreno and Hernandez handled the golf club.
Given the evidence of Hernandez’s guilt that is not dependent on DNA and given
the low probative value the Court of Criminal Appeals accords touch DNA, we conclude
the trial court did not err in determining Hernandez failed to show by a preponderance of
the evidence that, had an exculpatory DNA result been presented at trial, he would have
been exonerated. See TEX. CODE CRIM. PROC. ANN. art. 64.03(2)(A) (requiring that the
convicted person establish by a preponderance of the evidence that he “would not have
been convicted if exculpatory results had been obtained through DNA testing”); Hall, 569
S.W.3d at 658.
We therefore conclude the trial court did not err in finding identity was and is not
an issue and that Hernandez has not shown by a preponderance of the evidence that he
would not have been convicted had an exculpatory DNA result been recovered from the
golf club. Because these elements are dispositive, we do not address the other elements
of Article 64.03 discussed by Hernandez. See TEX. R. APP. P. 47.1.
IV. REASONABLE GROUNDS FOR MOTION
In his final issue, Hernandez challenges the trial’s court’s finding that his motion
9
for post-conviction DNA testing was frivolous. The trial court, in declining to appoint
counsel for Hernandez, found that no reasonable grounds exist for the filing of his motion.
An indigent convicted person has a limited right to appointed counsel if he intends
to file a motion for post-conviction DNA testing. Ex parte Gutierrez, 337 S.W.3d at 889;
TEX. CODE CRIM. PROC. ANN. art. 64.01(c). Counsel may be appointed when the facts
stated in the request for counsel or otherwise known to the convicting court reasonably
suggest that a valid or viable argument for testing can be made. Ex parte Gutierrez, 337
S.W.3d at 891.
We have already concluded, as the trial court did, that Hernandez has not met the
statutory requirements prescribed by Article 64.03. Since Hernandez failed to meet two
of the statutory preconditions to obtaining DNA testing under Chapter 64, the trial court
acted within its discretion by finding there were no reasonable grounds for Hernandez’s
post-conviction motion for DNA testing. See Weems v. State, 550 S.W.3d 776, 781 (Tex.
App.—Houston [14th Dist.] 2018, no pet.).
We overrule Hernandez’s final issue.
V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P 47.2(b).
Delivered and filed on the
3rd day of February, 2022.
10