Howard Holland v. State ( 2019 )

AFFIRMED and Opinion Filed December 13, 2019
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00272-CR
No. 05-19-00273-CR
HOWARD HOLLAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause Nos. 31608-422, 31609-422
OPINION
Before Justices Pedersen, III, Reichek, and Carlyle
Opinion by Justice Carlyle
Howard Holland appeals from the trial court’s denial of his motions for DNA testing. In a
single issue, he contends the trial court erred by determining he did not satisfy the requirements of
article 64.03 of the Texas Code of Criminal Procedure. We affirm.
In 2013, Holland was indicted and charged with aggravated sexual assault in three separate
cases, based on offenses committed against separate victims. Faced with the possibility of multiple
convictions that could lead to consecutive sentences, Holland agreed to a plea deal in which he
would plead guilty to one of the offenses while admitting his guilt as to the other two, with the
understanding that—although those unadjudicated offenses would be considered in determining
his sentence for the offense to which he pleaded guilty—he would not be prosecuted for the other
two offenses. See TEX. PENAL CODE § 12.45(a). The trial court accepted Holland’s guilty plea and,
after considering the two unadjudicated offenses, sentenced him to 40 years in prison. The charges
in the unadjudicated cases were then dismissed. See id. § 12.45(c).
Holland alleges that, years later, he discovered there was physical evidence collected
during the investigations into the unadjudicated offenses. He thus filed motions under Chapter 64
of the Texas Code of Criminal Procedure in both of the unadjudicated cases, asserting there was a
substantial likelihood DNA testing would show he did not commit the offenses charged in those
cases. He did not, however, file a motion in the case in which he was convicted. Nor did he seek
to test the evidence gathered in connection with the offense of his conviction. The trial court denied
Holland’s motions, concluding both that it was not a “convicting court” and that Holland was not
a “convicted person” for purposes of the unadjudicated cases in which the motions were filed. See
TEX. CODE CRIM. PROC. art. 64.03(a).
We review the question of law here de novo. Dunning v. State, 572 S.W.3d 685, 692 (Tex.
Crim. App. 2019). “A convicting court may order forensic DNA testing . . . only if,” among other
things, “identity was or is an issue in the case; and 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.” CRIM. PROC. art. 64.03(a). The statute thus
requires a connection between “the case,” the “convicted person,” and the evidence supporting the
conviction. In other words, it allows for forensic testing only if the evidence at issue would likely
prove the “convicted person” was not the perpetrator in “the case” in which that person was
convicted.
Holland contends the trial court erred because the two unadjudicated offenses became part
of the judgment of his conviction in the case in which he pleaded guilty. See Woodard v. State,
931 S.W.2d 747, 750 (Tex. App.—Waco 1996, no pet.); Murray v. State, 840 S.W.2d 675, 679
(Tex. App.—Tyler 1992, no pet.). He reasons that, because the unadjudicated offenses are now
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part of the judgment of his conviction, he is a “convicted person” with respect to those offenses.
He adds that the unadjudicated offenses affected both his decision to plead guilty and the sentence
he received from the trial court.
We are bound by the language of the statute. See Ex Parte Evans, 964 S.W.2d 643, 646
(Tex. Crim. App. 1998). Chapter 64 does not provide for DNA testing merely because the evidence
at issue might have affected an applicant’s decision to plead guilty, the length of his sentence, or
the items included in the judgment of his conviction. Rather, the statute unambiguously requires
that, before testing can be ordered, the applicant must prove by a preponderance of the evidence
that he “would not have been convicted if exculpatory results had been obtained through DNA
testing.” CRIM. PROC. art. 64.03(a) (emphasis added). Holland did not make that showing. Indeed,
nothing in the record suggests the evidence gathered in connection with the unadjudicated cases,
even if exculpatory as to those offenses, would have prevented Holland’s conviction in the case in
which he entered the guilty plea.
Perhaps the legislature should consider specifically providing that those who have had their
sentences enhanced by unadjudicated offenses can test the evidence tying them to those offenses.
Or perhaps the legislature considered and rejected including 12.45’d offenses within Chapter 64’s
purview. But Chapter 64, as it currently stands, does not accommodate the situation we face here.
We affirm the trial court’s orders denying Holland’s motions for DNA testing.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
190272F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HOWARD HOLLAND, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-19-00272-CR V. Trial Court Cause No. 31608-422.
Opinion delivered by Justice Carlyle.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of December, 2019.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HOWARD HOLLAND, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-19-00273-CR V. Trial Court Cause No. 31609-422.
Opinion delivered by Justice Carlyle.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of December, 2019.
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