Jerome Diego Brown v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00263-CR
JEROME DIEGO BROWN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Jerome Diego Brown appeals from the trial court’s denial of his
motion for post-conviction DNA testing. In three issues, he argues the trial court
erred by considering affidavit evidence and by failing to hold a hearing on his
motion. We overrule the issues and affirm the trial court’s denial.
On June 4, 1993, Officer J.M. Smith saw Appellant drop what appeared to
be narcotics on the ground. Officer Smith approached Appellant and performed
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See Tex. R. App. P. 47.4.
a pat-down search. Appellant began to struggle, causing Officer Smith and
Appellant to fall to the ground. Appellant snatched Officer Smith’s gun and shot
him in the leg. Appellant fled, but was apprehended in the attic of a nearby
building. Officer Smith’s gun was found in the attic. Appellant’s sister and two
other women saw Appellant shoot Officer Smith. Another witness, LaAndrela
Harris, heard gunshots and saw Appellant, whom she knew, holding a gun over
Officer Smith’s body. Appellant admitted shooting Officer Smith, but asserted it
was an accident: “Apparently I shot at the ground with his gun and he rolled over
and the bullet hit him.”
On April 29, 1996, Appellant pleaded guilty under a plea-bargain
agreement to aggravated assault on a police officer with a per se deadly weapon.
See Tex. Penal Code Ann. § 22.02 (West 2011). The trial court sentenced
Appellant to 32 years’ confinement. Appellant did not appeal his conviction.
On January 2, 2004, 2 Appellant filed a pro se motion for post-conviction
DNA testing and requested appointment of counsel. See Act of April 3, 2001,
77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2 (amended 2011) (current
version at Tex. Code Crim. Proc. Ann. art. 64.01(a) (West Supp. 2012)). The trial
court appointed counsel for purposes of filing a motion for post-conviction DNA
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The date Appellant filed his pro se motion determines the version of the
applicable statute that is relevant to Appellant’s arguments. See Act of April 25,
2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17 (effective date
may also be found at Tex. Code Crim. Proc. Ann. art. 64.01 historical & statutory
notes (West 2006 & Supp. 2012)).
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testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.
Laws 2, 3, amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003
Tex. Gen. Laws 16, 16 (amended 2007) (current version at Tex. Code Crim.
Proc. Ann. art. 64.01(c) (West Supp. 2012)). On March 25, 2011, appointed
counsel filed a request for DNA testing. After receiving notice of Appellant’s
motion, the State responded that the police officer’s pants were available for
DNA testing. 3 See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex.
Gen. Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann.
art. 64.02 (West Supp. 2012)). Without holding a hearing, the trial court adopted
the State’s proposed findings of fact and conclusions of law and denied
Appellant’s motion. The trial court reasoned that identity was not an issue:
“Based on the totality of the evidence, including [Appellant’s] plea, confession,
and admissions, identity as to who committed the offense is not and was not at
issue.” The trial court clarified that its conclusion that identity was not at issue
was not based solely on Appellant’s plea, confession, and admission, which is
prohibited. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.
Laws 2, 3 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art.
64.03(b) (West Supp. 2012)). Appellant filed a notice of appeal from the denial.
See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4,
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The State also disclosed that the prints from Officer Smith’s gun and a
gun-shot-residue test were available, but asserted that they would not contain
biological evidence.
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amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 5, 2003 Tex. Gen.
Laws 16, 17 (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (West
2006)).
A convicted person who moves for post-conviction DNA testing under
former article 64.01(b)(1) bears the burden of showing that evidence containing
biological material was in the possession of the State, but was not previously
subjected to DNA testing (1) because DNA testing was not available; (2) because
DNA testing was available, but not technologically capable of providing probative
results; or (3) through no fault of the convicted person, for reasons that are of a
nature such that the interests of justice require DNA testing. See Act of April 3,
2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2–3 (amended 2011)
(current version at Tex. Code Crim. Proc. Ann. art. 64.01(b)(1) (West Supp.
2012)). If the convicted person meets these criteria, a trial court must order DNA
testing only if the convicted person shows by a preponderance of the evidence
that he would not have been convicted if exculpatory results had been obtained
through DNA testing and that identity was at issue in the case. See Act of April
3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3, amended by Act
of April 25, 2003, 78th Leg., R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16, 16
(current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2012)).
See generally Leal v. State, 303 S.W.3d 292, 295–96 (Tex. Crim. App. 2009).
When, as here, the trial court denies a motion for post-conviction DNA testing
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without conducting a hearing, we review the ruling de novo. See Smith v. State,
165 S.W.3d 361, 363 (Tex. Crim. App. 2005).
In his first and second issues, Appellant argues that the trial court erred by
relying on witness affidavits, which were inadmissible hearsay and violated the
Confrontation Clause. But Appellant failed to raise these arguments in the trial
court even though the State filed its response to Appellant’s motion
approximately three weeks before the trial court entered its denial. Appellant’s
failure to present his hearsay and Confrontation Clause objections to the trial
court forfeits his complaint. See Tex. R. App. P. 33.1(a)(1); Sepeda v. State, 301
S.W.3d 372, 374 (Tex. App.—Amarillo 2009, pet. ref’d). We overrule issues one
and two.
In his third issue, Appellant contends that the trial court erred by failing to
hold a hearing before denying the motion. As with his first two issues, Appellant
failed to request a hearing on his motion or otherwise complain that a hearing
was necessary. This failure forfeits his complaint. See Tex. R. App. P.
33.1(a)(1); Sepeda, 301 S.W.3d at 376. Indeed, a trial court is not required to
hold a hearing before determining whether the movant is entitled to post-
conviction DNA testing. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim.
App.), cert. denied, 543 U.S. 864 (2004); Jones v. State, 161 S.W.3d 685, 689
(Tex. App.—Fort Worth 2005, pet. ref’d); cf. Act of April 3, 2001, 77th Leg., R.S.,
ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of April 25, 2003, 78th
Leg., R.S., ch. 13, § 4, 2003 Tex. Gen. Laws 16, 16 (amended 2011) (current
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version at Tex. Code Crim. Proc. Ann. art. 64.04 (West Supp. 2012)) (mandating
hearing after DNA testing conducted). We overrule issue three.
Having overruled Appellant’s issues, we affirm the trial court’s denial.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 13, 2013
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