Lucious Ray Johnson v. State ( 2015 )

ACCEPTED
14-14-00504-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/20/2015 10:17:52 AM
CHRISTOPHER PRINE
CLERK
IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
5/20/2015 10:17:52 AM
CHRISTOPHER A. PRINE
LUCIOUS RAY JOHNSON § Clerk
Defendant/Appellant
v. § CASE NO. 14-14-00594-CR
THE STATE OF TEXAS
Plaintiff/Appellee §
APPELLANT’S BRIEF
ON APPEAL FROM DENIAL OF
POST - CONVICTION DNA TESTING
TRIAL CASE NO. 0263473
TH
176 JUDICIAL DISTRICT COURT
HARRIS COUNTY, TEXAS
Thomas A. Martin
State Bar No. 50511495
1018 Preston, Suite 500
Houston, TX 77002-1824
713-222-0556
713-222-7022 (fax)
Appellant’s Brief Filed Pursuant to Anders v. California
Statement regarding oral argument: Pursuant to Texas Rule of Appellate
Procedure Rule 39.7, Appellant waives oral argument in this case.
IDENTITY OF PARTIES AND COUNSEL
Trial Judge The Honorable Stacy Bond
Defendant/Appellant Lucious Ray Johnson
State’s Attorney Aaron C. White
State Bar No. 24060819
Harris County District Attorney’s Office
1201 Franklin, Suite 400
Houston, TX 77002
713-755-5800
Defendant’s DNA Testing
Attorney Thomas A. Martin
State Bar No. 50511495
1018 Preston, Suite 500
Houston, TX 77002-1824
713-222-0556
713-222-7022 (fax)
Appellant’s Appellate Attorney Thomas A. Martin
State Bar No. 50511495
1018 Preston, Suite 500
Houston, TX 77002-1824
713-222-0556
713-222-7022 (fax)
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1
ISSUE PRESENTED 3
STATEMENT OF FACTS 4
SUMMARY OF THE ARGUMENT 5
ARGUMENT 6
PRAYER 9
CERTIFICATE OF SERVICE 10
CERTIFICATE OF COMPLIANCE 11
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INDEX OF AUTHORITIES
CASES
Anders v. California, 386 U.S. 738 (1967) 6, 8
Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002) 7, 8
Ex parte Baker, 185 S.W.3d 894, 898 (Tex.Crim.App. 2006) 8
Ex parte Suhre, 185 S.W.3d 898, 899 (Tex.Crim.App. 2006) 8
Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002) 6
Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004) 6
Johnson v. State, No. 14-06-00317-CR
(Tex.App. - Houston [14th Dist.] 2007)(unpub.op.) 4
CODES
Texas Code of Criminal Procedure art. 64.03 7
iii
STATEMENT OF THE CASE
The following is offered as a Statement of the Case for appellate review:
1. On February 22, 1978, Lucious Ray Johnson was found guilty of the
felony offense of aggravated rape, in case # 263473, in the 176th district court of
Harris County, Texas. Supplemental Clerk’s Record April p. 14.1
2. Mr. Johnson was sentenced to 99 years TDC. Id.
3. Mr. Johnson has filed nine separate pro se applications for writ of habeas
corpus, all of which have been denied by the Texas Court of Criminal Appeals. Id.
4. On March 17, 2006, the trial court denied Mr. Johnson’s first motion for
post-conviction DNA testing due to a lack of evidence available for testing. Id.
5. On March 29, 2007, this Court affirmed the denial by the trial court of
Mr. Johnson’s motion for post-conviction DNA testing in an unpublished opinion.
Johnson v. State, No. 14-06-00317-CR (Tex.App. - Houston [14th Dist.]
2007)(unpub.op.). Id.
6. On September 27, 2010, Mr. Johnson filed his second pro se motion for
post-conviction DNA testing. SCRApr p. 15.
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There is no Court Reporter’s Record in this case. There are two “supplemental” clerk’s
records, one provided to this Court on January 21, 2015, and the second provided to this Court on
April 9, 2015. The Clerk’s Record designations shall be set forth as “SCRJan “ or “SCRApr”
with appropriate page numbers.
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7. On May 2, 2014, the trial court again denied Mr. Johnson’s motion for
DNA testing based upon the lack of evidence available for testing. SCRApr p. 16.
8. Mr. Johnson subsequently filed a pro se notice of appeal. On December
9, 2014, the trial court subsequently appointed the undersigned counsel to represent
Mr. Johnson with his DNA testing appeal. SCRJan p. 3.
9. Appellant’s Appellate Brief is now timely filed if submitted on or before
May 20, 2015.
2
ISSUE PRESENTED
I. There are no issues presented for review. This is a brief filed pursuant to
Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1397 (1967).
Appellate counsel is contemporaneously filing a motion to withdraw.
3
STATEMENT OF FACTS
Appellant is appealing again the denial of his most recent motion for DNA
testing. On April 28, 2014, the State filed its findings of fact and motion denying
DNA testing. The State asked the trial court to deny testing because of the lack of
available evidence for testing. Most notably, this is the exact same ground for the
requested denial of testing that was cited in this Court’s earlier opinion issued on
March 29, 2007, and cited earlier in this document. See Johnson v. State, No. 14-06-
00317-CR (Tex.App. - Houston [14th Dist.] 2007)(unpub.op.). On May 2, 2014, the
trial court signed its order granting the State’s motion for denial of DNA testing.
There is, unfortunately for Mr. Johnson, no new evidence available for testing.
The State’s affidavits clearly show there is no new evidence available for DNA
testing. The trial court made the appropriate ruling based upon the lack of available
evidence for DNA testing.
4
SUMMARY OF THE ARGUMENT
I. Whether there are any non-frivolous issues to present for review associated
with the trial court’s denial of Mr. Johnson’s second motion for post-
conviction DNA testing.
There are no non-frivolous issues to present for review related to Mr. Johnson’s
second motion for post-conviction DNA testing.
There is no evidence in the record that shows that there is any biological
evidence that can be tested for DNA. Therefore, the trial court acted properly in
denying appellant’s second DNA motion.
Appellate counsel is filing a contemporaneous motion to withdraw.
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ARGUMENT
Standard of Review
This Court reviews a trial court’s decision to DNA testing under a bifurcated
standard of review. See Whitaker v. State, 160 S.w.3d 5, 8 (Tex.Crim.App. 2004).
This Court defers 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 it
reviews de novo other application of law to fact issues. Id. Employing this standard,
this Court defers to a trial court’s finding as to whether the claimed DNA evidence
exists and exists in a condition capable of testing. Rivera v. State, 89 S.W.3d 55, 59
(Tex.Crim.App. 2002).
Argument & Authorities
Appellant counsel has reviewed the entire record in this case, and believes that
there are no arguable issues to present to this Court on appeal. Appellant counsel
believes that any issue raised in connection with the denial of DNA testing due to the
lack of available evidence suitable for testing is without merit on appeal. Since there
are no arguable issues to raise on appeal, this case is guided by Anders v. California,
386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1397 (1967).
Under Texas Code of Criminal Procedure art. 64.03, a trial court may order
forensic DNA testing only if the court first finds that the evidence still exists and is
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in a condition making DNA testing possible. TEX.CODE CRIM.PRO. Art.
64.03(a)(1)(A)(i); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002).
On April 28, 2015, the State filed its motion requesting the trial court to deny
DNA testing based upon the lack of available evidence. SCRApr p. 3-13. The State
based its motion upon the affidavits of Barbara Anderson, Lori Bates Wilson, Joseph
Hill, Marilyn Skinner, and Q. Thigpen. Id. All of the affidavits essentially state the
following fact: after a diligent and thorough search of property in their respective
agency’s possession, their respective agency is not in possession of any biological
material suitable for DNA testing.
Pursuant to Texas Code of Criminal Procedure art. 64.03(a)(1), the failure to
show that evidence still exists and is in a condition making testing possible is
sufficient reason to deny testing.
As this Court well knows, the State is not obligated or responsible for
generating or collecting new biological material in support of a defendant’s post-
conviction DNA motion for testing.
In this situation with a second motion for DNA testing, while it is possible that
a trial court could legally grant a subsequent motion for DNA testing after denying
an original motion, there must first be evidence that “still exists” and that can be
tested before a judge can grant an order for such testing. TEX.CODE CRIM.PRO. Art.
7
64.03(a)(1)(A)(i); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). In
this case, there is no evidence in the record that shows that there is any evidence that
still exists and can be tested for DNA purposes. See Ex parte Suhre, 185 S.W.3d 898,
899 (Tex.Crim.App. 2006); Ex parte Baker, 185 S.W.3d 894, 898 (Tex.Crim.App.
2006).
Therefore, there are no arguable issues to raise on appeal. Anders v. California,
386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1397 (1967). The issues that have been
researched by appellate counsel are well settled, and the rulings or opinions on those
issues are not favorable to Mr. Johnson. Counsel respectfully requests that he be
allowed to withdraw from this appeal.
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PRAYER
For these reasons, the undersigned counsel respectfully prays that this Court
find that there are no non-frivolous arguments to present for review in this DNA
testing appeal, allow counsel’s request to withdraw from further representation, and
for all such other relief to which he may be justly entitled.
Respectfully submitted,
/s/ Thomas A. Martin
Thomas A. Martin
Appellant’s Counsel
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct of the foregoing Appellant’s Brief has
been provided all parties and/or counsel of record in accordance with the Texas Rules
of Appellate Procedure on May 20, 2015.
Harris County District Attorney’s Office
Appellate Division
1201 Franklin
6th Floor
Houston, TX 77002
Mr. Lucious Ray Johnson
4303 Botany Lane
Houston, TX 77047
/s/ Thomas A. Martin
Thomas A. Martin
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4( i)(3), the undersigned
counsel certifies that this brief complies with the type-volume limitations of Texas
Rules of Appellate Procedure 9.4(i).
1. Exclusive of the portions exempted by Texas Rules of Appellate Procedure
9.4(i), this brief contains 1,763 words printed in proportionally spaced
typeface.
2. This brief is printed in proportionally spaced serif typeface using Times New
Roman 14 point font in text and Times New Roman 12 point font in footnotes
produced by WordPerfect Office X6 software.
3. Upon request, the undersigned counsel will provide an electronic version of
this brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Texas
Rules of Appellate Procedure 9.4(i) may result in the Court’s striking this brief
and imposing sanctions against the person who signed it.
/s/ Thomas A. Martin
Thomas A. Martin
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