Darius Duron Elam v. State ( 2009 )

Affirmed and Memorandum Opinion filed September 29, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00580-CR

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DARIUS DURON ELAM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 380350

M E M O R A N D U M   O P I N I O N

Appellant Darius Duron Elam was convicted of aggravated robbery and sentenced to life imprisonment.  In his sole issue, he appeals the trial court=s denial of his motion for post-conviction DNA testing.  We affirm.

In May of 1983, Richard Bowen was found in his car, dead from a gunshot wound to the head.  A sheet of paper with appellant=s fingerprint on it was later found inside the car. Appellant was arrested after he and another man made purchases with the complainant=s credit cards.  After he was placed in jail, appellant admitted to two cell mates that he and a partner obtained the credit cards from a man they had abducted and robbed. He also admitted they had taken the man to a parking lot or somewhere Aon Rice@ and that he had shot the man in the head.  Later, appellant admitted to another cell mate that had abducted a man at gunpoint and was arrested for using the man=s credit cards. According to the cell mate, appellant showed him newspaper clippings regarding the incident, said he and a friend had robbed the man mentioned in the clippings, and asked if the cell mate knew anything about a murder at Rice University.  In 1984, appellant was convicted of aggravated robbery and sentenced to life imprisonment.

In 2007, appellant filed a motion seeking post-conviction DNA testing and fingerprint testing of State=s exhibit 30, the sheet of paper with appellant=s fingerprint on it that was found in the complainant=s car.  In response, the State presented the affidavit of an exhibits clerk with the Harris County District Clerk=s Office stating that State=s exhibit 30 was destroyed in 1995.  However, the State also presented evidence that several items were in the possession of the Houston Police Department=s property room, including a fired bullet, a A32 Cal. Clerke 1st Pr.,@ an AME container,@ shoes, clothing, paint scrapings, fingernail clippings, hair samples, a plastic bag with broken blood vial swabs, and two APlastic Bag[s] marked Blood Type Substance.@

In 2008, appellant filed an amended petition.  In those pleadings, appellant sought post-conviction DNA testing of the above items identified in the State=s response.  The trial court denied appellant=s request for post-conviction DNA testing, finding in part that (1) appellant failed to allege sufficient facts to show that the remaining evidence could be subjected to DNA testing that would produce exculpatory results and (2) appellant failed to establish by a preponderance of the evidence that he would not have been convicted if DNA testing of the remaining biological evidence yielded exculpatory results.  This appeal followed.

We review a trial court=s denial of a request for post-conviction DNA testing under a bifurcated standard.  See Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009).  We defer to a trial judge=s findings of fact when they are supported by the record.  Id.  We also defer to a trial judge=s application of law to fact questions that turn on credibility and demeanor.  Id. However, we review pure legal issues de novo.  Id.

Under article 64.03(a)(2)(A) of the Texas Code of Criminal Procedure, a convicted person seeking DNA testing must show, among other things, that by a preponderance of the evidence, Athe 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) (Vernon Supp. 2008).  Appellant has failed to meet that burden here given the inculpatory evidence admitted at trial.  See Prible v. State, 245 S.W.3d 466, 470 & n.3 (Tex. Crim. App. 2008) (stating that even if DNA testing showed the presence of another person=s DNA, defendant failed to prove by a preponderance of the evidence that he would not have been convicted given the evidence presented at trial) (citing Prible v. State, 175 S.W.3d 724, 726B29 (Tex. Crim. App. 2005) (discussing the inculpatory evidence from Prible=s trial, including the evidence that he was present at the victims= home on the night of the murder, that his semen was found in one victim=s mouth, and that he confessed to a fellow inmate)); Hood v. State, 158 S.W.3d 480, 481B83 (Tex. Crim. App. 2005) (holding that even if DNA testing showed presence of another person at the crime scene, defendant failed to establish by a preponderance of the evidence that he would have been acquitted on that basis given that defendant=s bloody fingerprints were found at the scene and showed his involvement in the crime; DNA evidence would at most establish that defendant acted with someone else in committing the crime); Jacobs v. State, 115 S.W.3d 108, 113 (Tex. App.CTexarkana 2003, pet. ref=d) (holding that even if DNA testing revealed that hair samples came from a third party, that evidence would Amerely muddy the waters by demonstrating that a third party had, at some point in time . . . been inside@ the complainant=s vehicle).  Here, expert testimony established that appellant=s fingerprint was found on a piece of paper in the complainant=s car.  Three of appellant=s cell mates testified that appellant admitted committing a robbery with a partner, shooting the victim in the head, and being arrested using the credit cards obtained from the robbery. Because the evidence showed that appellant acted with another person, appellant has failed to show by a preponderance of the evidence that he would not have been convicted if DNA testing showed the presence of another person at the crime scene.  See Prible v. State, 175 S.W.3d 724, 728B30 (Tex. Crim. App. 2005); Hood, 158 S.W.3d at 481B83; Jacobs, 115 S.W.3d at 113.  Therefore, the trial court did not err in denying appellant=s request for DNA testing.  We overrule appellant=s sole issue.

Having overruled appellant=s sole issue, we affirm the trial court=s order.

/s/      Leslie B. Yates

Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).