Glen Samuel McCurley v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00122-CR
___________________________
GLEN SAMUEL MCCURLEY, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1657724D
Before Kerr, Bassel, and Walker, JJ.
Opinion by Justice Walker
OPINION
After two days of jury trial proceedings, Appellant Glen Samuel McCurley
entered an open plea of guilty to capital murder and was sentenced to life imprisonment.
McCurley appeals,1 arguing in five issues that the trial court erred in denying his motions
to suppress (1) portions of the State’s DNA evidence linking him to the murder and
(2) the custodial statement he made to law enforcement. We will affirm.
I. BACKGROUND
A. FACTUAL BACKGROUND
On the night of February 17, 1974, Carla Walker and her boyfriend were in a car
in the parking lot of a Fort Worth bowling alley when someone yanked open the car’s
door, pulled Carla out, and pistol-whipped her boyfriend. Carla was kidnapped, and
her body was found in a culvert three days later. An autopsy determined that she had
been strangled to death and that she had likely been sexually assaulted.
The initial investigators followed up on hundreds of leads. During the
investigation, a magazine from a Ruger pistol was recovered from the bowling alley
parking lot. Law enforcement identified McCurley as one of a number of people in the
Fort Worth area who owned such a pistol. When McCurley was interviewed, he said
that his pistol had been stolen before Carla’s murder. However, despite that, he had
McCurley specifically reserved his right to appeal the trial court’s denial of his
1
motions to suppress, and the trial court certified that he had a right to appeal this issue.
See Tex. R. App. P. 25.2(a)(2).
2
purchased a new magazine for the pistol after Carla’s murder, and it appears that law
enforcement was aware of that fact. Nonetheless, McCurley was given a polygraph test
and released. After that, the case went cold.
In 2019, the case was reopened. From the original case file, the new investigators
compiled a list of potential suspects that needed to be re-investigated; this list included
McCurley. Various items recovered from the crime scene were sent to the Serological
Research Institute (SERI) for DNA testing. SERI developed a single-source DNA
profile belonging to an unknown male from genetic material taken from Carla’s bra.
After no matching profiles were found in the FBI’s national DNA database, the single-
source DNA profile developed by SERI was sent to Othram, a laboratory in Houston
that uses a new type of DNA-analysis technology called forensic-grade genomic
sequencing (FGGS). Othram used the FGGS technology to provide detectives with
the surname of the unknown male who had left his DNA on Carla’s bra: McCurley.
Detectives learned that McCurley still lived in Fort Worth. One night, police
officers conducted a “trash run” at McCurley’s house from which they took five bags
of discarded trash from his front curb. They sent items from the trash to SERI for
testing. From material found on a drinking straw, SERI developed a DNA profile that
matched the single-source DNA profile from the material found on Carla’s bra.
Detectives then visited McCurley at his house, and he voluntarily provided them with
a DNA sample. That DNA also matched the DNA found on Carla’s bra.
3
McCurley was arrested and admitted to detectives that he had killed Carla. He
told detectives where to locate the Ruger pistol, which officers found hidden in the
ceiling in McCurley’s house while executing a search warrant.
B. PROCEDURAL BACKGROUND
McCurley was charged with capital murder and pleaded not guilty. By multiple
motions, he moved to suppress the DNA evidence and his custodial statement to
detectives. Regarding the DNA evidence, McCurley challenged (1) the legality of
searching the DNA that was found after the search of his discarded trash without a
warrant; (2) the admissibility and use of the DNA testing results produced by Othram,
because the lab was not accredited by the Texas Commission of Forensic Science
(TCFS) and its employees were not licensed by TCFS; and (3) the admissibility and use
of the single-source DNA profile that SERI had developed, because one of the SERI
lab employees involved in the testing process was not licensed by TCFS. Additionally,
McCurley argued that his custodial statement was inadmissible because it was induced
by a detective’s promise that McCurley would not receive the death penalty if he
confessed. After two suppression hearings, the trial court denied McCurley’s motions.
At the hearings, the trial court dictated its findings of fact and conclusions of law to the
court reporter.2
2
These findings and conclusions have been made a part of the appellate record
without objection from either party. See Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim.
App. 2013) (“The trial court’s findings of fact and conclusions of law are sufficient if
they are recorded in some way, whether written out and filed by the trial court, or stated
4
Two days into the jury trial, McCurley changed his plea to guilty. The trial court
found McCurley guilty and sentenced him to life in prison. McCurley appeals the trial
court’s denial of his motions to suppress.
II. PRELIMINARY ADDRESSABILITY ANALYSIS
Because McCurley pleaded guilty after the denial of his motions to suppress, we
must first conduct a preliminary two-pronged analysis to determine whether he is
permitted to appeal the trial court’s suppression rulings. See Gonzalez v. State, 966 S.W.2d
521, 524 (Tex. Crim. App. 1998). We must (1) identify the “fruits” that the trial court
refused to suppress and (2) determine if these fruits have “somehow been used” by the
State. Id. As to the first prong, it must be clear from the record what fruits are the
subject of appellant’s complaint. Id. As to the second prong, the State can be said to
have “used” the fruits if they would have in any way inculpated the appellant. Id. at
523; Jackson v. State, 77 S.W.3d 921, 925 (Tex. App.—Houston [14th Dist.] 2002, no
pet.).
It is clear from the record that the fruits McCurley sought to be suppressed were
evidence related to the DNA testing and analysis performed by Othram lab; evidence
related to SERI’s testing and analysis of the single-source DNA obtained from Carla’s
on the record at the hearing.”) (internal quotations omitted); Busby v. State, 253 S.W.3d
661, 669 (Tex. Crim. App. 2008) (holding that trial court complied with statutory
requirement to file findings and conclusions on issue of voluntariness of defendant’s
confession when such were dictated into the appellate record).
5
bra; DNA evidence obtained from McCurley’s discarded trash; and McCurley’s
custodial statement. See Gonzalez, 966 S.W.2d at 524. It is also clear that these fruits
were used by the State because they would have in some way inculpated McCurley. See
id. Accordingly, we will address the merits of McCurley’s appeal.
III. STANDARD OF REVIEW
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).
Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility and
the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim.
App. 2007), we defer almost totally to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on evaluating credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not turn
on credibility and demeanor, Martinez, 570 S.W.3d at 281.
When the trial court makes explicit fact findings, we determine whether the
evidence, when viewed in the light most favorable to the trial court’s ruling, supports
those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We then
review the trial court’s legal ruling de novo unless its explicit fact findings that are
supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006).
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IV. DISCUSSION
In five issues, McCurley complains that the trial court erred in denying his
motions to suppress because (1) Othram’s DNA evidence was inadmissible because
Othram is not accredited by TCFS, nor has it obtained a waiver of accreditation,
(2) certain of Othram’s DNA evidence was inadmissible because it was analyzed by
Othram employees who were not licensed by TCFS, (3) SERI’s single-source DNA
evidence obtained from Carla’s bra was inadmissible because a portion of the lab work
was completed by a SERI employee who was not licensed by TCFS, (4) the DNA
profile developed from McCurley’s abandoned trash was acquired without a proper
warrant in violation of his Fourth Amendment privacy rights, and (5) McCurley’s
custodial statement was improperly induced by a promise from detectives that
McCurley would not receive the death penalty if he confessed.
A. MCCURLEY’S CUSTODIAL STATEMENT
To aid in our analysis, we will take McCurley’s issues out of order. We will first
address McCurley’s fifth issue—that the trial court erred when it failed to suppress his
custodial statement because it was improperly induced by a promise from detectives
that McCurley would not receive the death penalty if he confessed to Carla’s murder.
We will overrule McCurley’s fifth issue because the evidence supported the trial court’s
finding that the detectives did not make a promise to McCurley to induce his statement.
7
1. McCurley’s Interview
Upon McCurley’s arrest, he was interviewed by Detectives Wagner and Bennett
of the Fort Worth Police Department. A videorecording of the interview captured the
following conversation between McCurley and the Detectives:
Detective Bennett: This is about your credibility, Mr. McCurley. And just as
Detective Wagner mentioned, it’s the why. We just need to know why. And we know
that you want to get this off your chest. You do want to talk about this. It’s been too
long. It’s been too many years. Her family deserves answers. Just need you to tell us.
Let her family have the peace you would want.
McCurley: Then I go to the electric chair.
Detective Wagner: You’re not going to go to the electric chair.
Detective Bennett: There’s no electric chair.
McCurley: Or get hung or whatever.
Detective Wagner: No, you’re 77 years old. They’re not going to do that to you.
Detective Bennett: No.
McCurley: Yeah, that’s what y’all say now.
Detective Wagner: They’re not going to do that to you. I promise you. They
will not do that to you.
...
Detective Bennett: Her family needs the peace, Mr. McCurley. We just need the
resolution.
McCurley: I can’t say that I did something that I didn’t do.
Detective Wagner: You know, we all have things—skeletons in our closet we
don’t want to talk about. We make mistakes. Anybody can understand a mistake.
8
McCurley: I can’t go to prison, either. I’d just as soon go. If it’d make anybody
happier, just go ahead and kill me now.
Detective Bennett: Nobody’s going to kill you, Mr. McCurley.
McCurley: Yeah, if you send me to prison, I will.
Detective Wagner: Well, we’re not the ones that send you to prison. That would
be up to a jury. And that’s why we say—
McCurley: I’m saying if I did this, I haven’t said I did it. I know what all is about.
That’s where I’ll end up.
Detective Wagner: And you don’t think you’ll end up there anyway without
saying what you need to say? I mean, wouldn’t you rather make peace with things and
have your final say than just blindly go off to jail? Because I’m telling you right now,
we’ve got enough for you to just to go to jail. Okay? And then if a jury finds you guilty,
then you go to prison.
After this exchange, McCurley continued to maintain his innocence. Then,
Detective Wagner said the following to McCurley:
Detective Wagner: But if you stand up and you be a good man and you show
regret for what you did—that’s something people can get behind. And understand that
at 77 years old, they’ll wanna show mercy to somebody like that. Nobody can promise
you that, but you gotta inspire that goodness in the jury and the people that are gonna
look at this case afterwards.
Ultimately, twenty-four minutes after Detective Wagner used the complained-of
promise language, McCurley admitted to killing Carla by “choking” her.
At the suppression hearing, Detective Wagner explained her use of the promise
language:
Defense Attorney: And specifically, what did you promise him?
9
Detective Wagner: I didn’t promise him anything. I mean, I was—I was making
a reference—it was probably a bad choice of words, but I wasn’t really promising him
anything.
Defense Attorney: Well, what do you under—you think he understood that you
were promising? What would have been logical for him to think you were promising?
Detective Wagner: I guess that he wasn’t going to get killed.
Defense Attorney: That he wasn’t going to get the death penalty, right?
Detective Wagner: We didn’t use the word “death penalty.” We were just talking
about the methods he’s talking about electrocution and hanging. And so my thought
process there was they’re not going to do that to you because that stuff doesn’t exist.
And it was another reactionary than [sic] talking about anything as far as what’s going
to happen death penalty-wise.
On the record, the trial court orally pronounced its findings of fact and
conclusions of law:
Once again, based on the totality of the circumstances, the Court finds
that the defendant's statement was freely and voluntarily made without
compulsion or persuasion. The Court notes that the detective made the
statements in response to the defendant's statement, ‘Then I go to the
electric chair or get hung or whatever.’ And in both of those instances,
the detective says, ‘You’re not going to the electric chair. There’s no
electric chair. No, you’re not going to be hung.’ And then later also states,
‘Those decisions are going to be made by a jury.’
So, the Court makes a finding that all of those statements taken
together did not constitute a promise or inducement to the defendant.
And once again, that therefore his statement was freely and voluntarily
made without compulsion or persuasion.
2. Relevant Law
“A statement of an accused may be used in evidence against him if it appears
that the same was freely and voluntarily made without compulsion or persuasion.” Tex.
10
Code Crim. Proc. art. 38.21. A statement is involuntary if, based on the totality of the
circumstances surrounding its acquisition, it is shown that the statement was induced
by a promise that was “positive, made or sanctioned by someone in authority, and of
such an influential nature that it would cause a defendant to speak untruthfully.”
Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004); Reed v. State, 59 S.W. 3d
278, 281 (Tex. App.—Fort Worth 2001, pet. ref’d). A mere statement of fact, general
statement that confessions sometimes result in leniency, or prediction about a future
event does not rise to the level of a promise. Muniz v. State, 851 S.W.2d 238, 254 (Tex.
Crim. App. 1993); Coleman v. State, 440 S.W.3d 218, 223–24 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).
3. The Evidence Supports the Trial Court’s Finding of No Promise
The evidence supports the trial court’s finding that the detectives did not make
a promise to McCurley. The conversation in question began when, unprompted,
McCurley raised the possibility of the death penalty, stating that he was going to “go to
the electric chair” or “get hung or whatever.” In direct response, the detectives stated
that “[t]here’s no electric chair” and that “[t]hey’re not going to do that to you. I
promise you.” At the suppression hearing, Detective Wagner testified that she used the
promise language as a rebuttal to McCurley’s invocation of the specific methods of
execution by electrocution or hanging because those methods are no longer used in this
state. See Tex. Code Crim. Proc. Ann. art. 43.14(a) (providing that all executions be by
lethal injection).
11
Further, McCurley continued to assert his innocence for nearly half an hour even
after the promise language was used. And it is notable that, in the time between the
promise language and when McCurley confessed, Detective Wagner twice made it clear
that the jury alone was responsible for deciding McCurley’s punishment. In fact,
Detective Wagner explicitly stated that nobody could promise McCurley mercy if he
regretfully confessed to killing Carla but indicated to him that a jury might take such
into account when it considered his case.
When viewed in the light most favorable to the trial court’s ruling, this evidence
shows that Detective Wagner’s promise language was merely a general statement of fact
regarding the available methods of execution rather than a promise that McCurley
would not receive the death penalty if he confessed to Carla’s murder. This finding is
dispositive of the legal issue. See Kelly, 204 S.W.3d at 818. As such, based on the totality
of the circumstances, we hold that the trial court did not err when it denied McCurley’s
motion to suppress his custodial statement. We overrule McCurley’s fifth issue.
B. THE SINGLE-SOURCE DNA EVIDENCE FROM CARLA’S BRA
We will next address McCurley’s third issue in which he argues that the trial court
erred in refusing to suppress DNA evidence related to work completed by a SERI
analyst—Erin Laurie—who was not licensed by TCFS to perform forensic analysis of
DNA in Texas cases. Specifically, McCurley argues that, because Laurie completed
quantification “testing” on the single-source DNA profile obtained from Carla’s bra,
this evidence should have been suppressed as it was obtained in violation of
12
Articles 38.01 and 38.35 of the Texas Code of Criminal Procedure. The State responds
that the work performed by Laurie did not constitute forensic analysis but merely
“batch work” and that the actual analysis of the test data was completed by a properly
licensed analyst, Mallory Pagenkopf.
We will overrule McCurley’s third issue because the trial court did not err in
finding that Laurie’s work was merely “batch work” and that such work did not
constitute “forensic analysis” in violation of state law.
1. Evidence Related to Laurie’s Work
Pagenkopf testified at the suppression hearing and at trial regarding the
quantification work Laurie performed on the single-source DNA sample from Carla’s
bra.3 She stated that one of the preliminary steps in analyzing DNA evidence is to run
a quantification “test” which produces “an estimate of the amount of DNA present in”
DNA extracted from a particular sample. Pagenkopf expounded that quantification
involves taking a rectangular plate upon which 96 wells are located and placing inside
each well an amount of DNA extract and a reagent. Then, the plate is placed on a
quantification machine which causes the DNA to fluoresce, allowing SERI’s software
3
Because the issue of Laurie’s licensing was consensually relitigated in front of
the jury, our analysis will consider evidence from both the suppression hearing and trial.
See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Siddiq v. State,
502 S.W.3d 387, 392 (Tex. App.—Fort Worth 2016, no pet.).
13
to detect the amount of DNA present in each sample. These findings are then
interpreted by an analyst.
Pagenkopf said that it is typical in DNA labs for parts of the quantification
process to be performed by different analysts. Due to the expense of such testing,
quantification is done in large batches which include DNA samples from multiple cases
that are tested together. Pagenkopf likened the quantification machine to a dishwasher
that is not started until it is full.
While conceding that Laurie was not licensed by TCFS, Pagenkopf emphasized
that Laurie is a “fully qualified scientist.” However, according to Pagenkopf, Laurie’s
only task related to the DNA sample from Carla’s bra was to measure two microliters
of DNA extract from a tube, put them in the quantification plate, and run the machine.
This process did not require Laurie to examine the DNA evidence; she only needed to
“check that the DNA number on the tube [was at] the correct spot on the plate.” Once
the machine had run, the results were returned to Pagenkopf who interpreted them.
At the hearing, McCurley proffered a list of written questions he had sent to
Pagenkopf via email and her responses to those questions. The first question asked
Pagenkopf to state the names of “all persons who performed a ‘forensic analysis’ or
technical review of the evidence in this case from which a DNA profile for ‘unknown
male 1’ or Glen McCurley was obtained.” Pagenkopf provided a list that included
Laurie’s name and also confirmed that Laurie was not licensed by TCFS. In her
answers, Pagenkopf described the work done by Laurie as “quantification . . . on the
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DNA extracts and extraction blanks associated with” the relevant DNA samples taken
from Carla’s bra.
In denying McCurley’s motion on this issue, the trial court found that the work
completed by Laurie “consisted of doing what is called, quote, batch work, and that her
portion was that she started the realtime PCR quantification machine”; it concluded
that such work “did not constitute what is statutorily deemed forensic analysis.”
2. Relevant Law
The Texas exclusionary rule excludes from a criminal trial all evidence obtained
“in violation of any provisions of the Constitution or laws of the State of Texas.”4 Tex.
Code Crim. Proc. Ann. art. 38.23. The Texas Code of Criminal Procedure provides
that “[a] person may not act or offer to act as a forensic analyst unless the person holds
a forensic analyst license.” Tex. Code Crim. Proc. Ann. art. 38.01 § 4-a(b). “Forensic
analyst” is defined as “a person who on behalf of a crime laboratory accredited under
this article technically reviews or performs a forensic analysis or draws conclusions from
or interprets a forensic analysis for a court or crime laboratory.” Id. § 4-a(a)(2). And
“forensic analysis” means “a medical, chemical, toxicological, ballistic, or other expert
4
Though McCurley does not specifically invoke Article 38.23 in his appellate
brief, he argued in his motion to suppress and on appeal that the bra DNA evidence
should have been suppressed pursuant to Articles 38.01 and 38.35 of the Texas Code
of Criminal Procedure. Thus, he has adequately raised the issue for our review. See Imo
v. State, 822 S.W.2d 635, 636 (Tex. Crim. App. 1991) (holding that appellant
“automatically invoked” Article 38.23 by arguing evidence should be excluded for
violations of state constitutional and statutory law).
15
examination or test performed on physical evidence, including DNA evidence, for the
purpose of determining the connection of the evidence to a criminal action.” Id.art. 38.35(a)(4) (emphasis added). Finally, Article 38.35 expressly provides that forensic
analysis of physical evidence and any related expert testimony are inadmissible if the
laboratory at which the analysis was conducted was not accredited by TCFS.5 Id.art. 38.35(d)(1).
3. The Evidence Supports the Trial Court’s Findings About Laurie’s Work
Under our bifurcated standard of review, we must first determine whether, when
viewed in the light most favorable to the trial court’s ruling, the record supports the
trial court’s factual finding that Laurie’s work consisted only of “batch work” and
starting the quantification machine. See Johnson, 114 S.W.3d. at 192. We hold that it
does.
McCurley argues that Pagenkopf—in her written answers to his emailed
questions and in her testimony—explicitly characterized Laurie’s work as “forensic
analysis” and a “test” of the evidence. However, according to Pagenkopf, Laurie merely
placed a DNA sample from a tube onto the quantification plate, ensured that the
number from the tube corresponded with the correct placement on the plate, and
To the extent that McCurley argues that this exclusionary provision from
5
Article 38.35 required the suppression of the bra DNA evidence, we overrule this
argument. See Tex. Code Crim. Proc. Ann. art. 38.35(d)(1). Article 38.35 explicitly
excludes evidence only if it was tested at an unaccredited lab, and it is undisputed that
SERI was accredited by TCFS. Id.16
started the machine. These tasks were only a part of the quantification test that was
run in a large batch and included samples from multiple cases. Importantly, Pagenkopf
confirmed that Laurie did not examine or interpret any results from the quantification
data.
Accordingly, when viewed in the light most favorable to the trial court’s ruling,
we conclude that the record supports the factual finding that Laurie’s work consisted
of only “batch work” and starting the quantification machine.
4. Laurie’s Work Did Not Constitute Statutory Forensic Analysis
Having held that the evidence supported the trial court’s factual finding regarding
the nature of Laurie’s work, we must determine de novo whether the trial court erred
in denying McCurley’s motion to suppress based on its legal ruling that such work did
not constitute “forensic analysis” under article 38.01. We conclude that there was no
error.
McCurley contends that Laurie engaged in unlicensed forensic analysis because
she performed a “test” on the bra DNA evidence when she completed her portion of
the quantification; that, even though Laurie did not interpret the data, her involvement
in the quantification process ipso facto constituted “testing” and required exclusion of
the test results. We disagree.
“Test” in this context is an undefined statutory term, Tex. Code. Crim. Proc.
Ann. art. 38.35(a)(4), and statutory construction is a question of law that we review de
novo, Lang v. State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018). Thus, we will read
17
the term using its plain meaning “in context and . . . according to the rules of grammar
and common usage.” State v. Rhine, 297 S.W.3d 301, 310 (Tex. Crim. App. 2009). We
may consult standard dictionaries to aid in our analysis. Lang, 561 S.W.3d at 180. Only
if the plain language is ambiguous or would lead to absurd results may we consider
extratextual factors. Rhine, 297 S.W.3d at 310.
The plain meaning of “test” as used in this context is neither ambiguous nor
absurd and envisions taking an active role in analyzing and interpreting the relevant
physical evidence. “Test” is a noun commonly defined as “a critical examination,
observation, or evaluation.” Test, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/test (last visited Aug. 29, 2022). This definition fits squarely
within the surrounding statutory context which describes a forensic analyst as a person
who “technically reviews,” “draws conclusions from,” or “interprets” data gleaned from
a forensic analysis. Tex. Code Crim. Proc. Ann. art. 38.01 § 4-a(a)(2).
Based on this plain meaning, Laurie did not perform a “test” of the bra DNA
evidence. Her role was passive, requiring no critical examination, observation, or
evaluation of the bra DNA evidence; she simply filled the quantification machine with
batches of DNA evidence in the same way that a homeowner fills a dishwasher with
dirty dishes, and then she started the machine. On the other hand, the evidence showed
that it was Pagenkopf who examined and interpreted the quantification results and then
provided expert testimony pertaining to those results.
18
Accordingly, the trial court did not err in denying McCurley’s motion to suppress
the bra DNA evidence because Laurie did not “test” the bra DNA evidence as
contemplated by the statute and thus did not engage in unlicensed “forensic analysis”
in violation of Articles 38.01 and 38.35. See id. arts. 38.01 § 4-a(b), 38.35(a)(4). We
overrule McCurley’s third issue.
C. THE DNA PROFILE DEVELOPED FROM MCCURLEY’S TRASH
Next, we will address McCurley’s fourth issue—that the trial court erred by
denying his motion to suppress the DNA profile developed from his discarded trash
because it was obtained in violation of his Fourth Amendment right to privacy.
McCurley does not contest whether the trash was abandoned nor that its warrantless
seizure was improper. Instead, he argues that the Fourth Amendment required law
enforcement to obtain a warrant before using enhanced DNA-testing technology to
forensically search that trash to acquire his DNA profile. The State argues that the trial
court did not err because McCurley had no expectation of privacy to any part of his
abandoned trash, including the DNA profile found there. After finding that McCurley
had no expectation of privacy in his discarded trash, the trial court denied his motion
as to this issue.
We will overrule McCurley’s fourth issue because he did not have standing to
contest the search of the abandoned trash and because, even if the trial court had erred
by denying McCurley’s motion to suppress this DNA profile, such error would have
been harmless.
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1. McCurley Had No Standing to Contest the Search of His Abandoned Trash
Property is abandoned if (1) the defendant intended to abandon the property and
(2) his decision to abandon the property was not due to police misconduct. Swearingen
v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003). Further, no seizure occurs under
the Fourth Amendment when police take possession of property that has been
abandoned without police misconduct. Id. “[W]hen a defendant voluntarily abandons
property, he lacks standing to contest the reasonableness of the search of the
abandoned property.” Id.McCurley concedes on appeal that he abandoned this trash. He further concedes
that the police did not come into possession of the trash through any misconduct. For
these reasons, the law is clear that McCurley had no standing to contest any subsequent
search of his abandoned trash. Id.McCurley contends that this well-established abandonment-of-property doctrine
invites infringement upon a person’s Fourth Amendment right to privacy when their
legally obtained DNA is forensically searched without a warrant. This is particularly
true, McCurley argues, given the nature of DNA as a motherlode of personal
information that people inadvertently and broadly deposit in day-to-day life. He cites
to a line of cases6 to suggest that an exception should be announced to the
McCurley cites to Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (holding
6
that warrantless search of wireless carrier databases for a defendant’s physical location
information typically violates their right to privacy); Riley v. California, 573 U.S. 373, 401,
134 S. Ct. 2473, 2493 (2014) (holding that warrantless search of cell phone obtained
20
abandonment doctrine for DNA-search cases. However, none of the cases cited by
McCurley involved searches of unequivocally-abandoned personal property as we have
here; neither do they establish that such an exception exists in Texas or, from what we
can tell, any other jurisdiction in the nation.
To the contrary, at least two of our sister courts have relied on the abandonment
doctrine to hold that a person does not maintain a right to privacy in DNA evidence
obtained from discarded personal property. See Pollard v. State, 392 S.W.3d 785, 790
(Tex. App.—Waco 2012, pet. ref’d); Guy v. State, No. 03-12-00466-CR, 2014 WL
5423760, at *6 (Tex. App.—Austin Oct. 22, 2014, pet. ref’d) (mem. op., not designated
for publication). In Pollard, an incarcerated defendant’s DNA was obtained from a cup
and spoon abandoned by the defendant in a jail cell. Pollard, 392 S.W.3d at 790. In Guy,
the defendant, while incarcerated on an unrelated charge, was interviewed outside of
the prison by police concerning his involvement in a murder. Guy, 2014 WL 5423760,
incident to arrest violated defendant’s right to privacy); Maryland v. King, 569 U.S. 435,
464–65, 113 S. Ct. 1958, 1979–80 (2013) (holding that validly-arrested defendant’s right
to privacy was not offended when police swabbed for and analyzed his DNA as part of
routine booking procedure); Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046
(2001) (holding that warrantless use of technology not in general public to search a
person’s home violated their right to privacy); Katz v. United States, 389 U.S.347, 351,
88 S. Ct. 507, 511 (1967) (holding that warrantless recording of defendant’s
conversation held inside a telephone booth violated their right to privacy); Holder v.
State, 595 S.W.3d 691, 701 (Tex. Crim. App. 2020) (adopting Carpenter reasoning as
applicable to Texas state law); State v. Granville, 423 S.W.3d 399, 417 (Tex. Crim. App.
2014) (holding that warrantless search of a defendant’s cell phone obtained during jail
book-in procedure and being held temporarily in the jail property room violated
defendant’s right to privacy).
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at *1. After the interview, a detective transported the defendant back to prison. Id.They stopped for a fast-food lunch on the way, after which the defendant left his fast-
food trash in the detective’s car. Id. Police obtained a sample of the defendant’s DNA
from a straw located in that trash. Id.Both courts held that—separate and apart from the defendants’ diminished
privacy rights as prisoners—neither defendant had an expectation of privacy to DNA
evidence obtained from their abandoned personal property. Pollard, 392 S.W.3d at 798;
Guy, 2014 WL 5423760, at *6; see also Granville, 423 S.W.3d at 409 (clarifying that a
person loses his expectation of privacy to cell phone information if the phone is
abandoned); Akins v. State, 573 S.W.3d 290, 297 (Tex. App.—Beaumont 2019, pet.
ref’d) (same regarding information from abandoned laptop). We refuse to conclude
otherwise in McCurley’s case. Accordingly, we hold that the trial court did not err in
not suppressing the DNA profile developed from McCurley’s abandoned trash.
2. Harm Analysis for Constitutional Error
However, even if the trial court had erred in denying to suppress the DNA
derived from the collected trash, such error would have been harmless. The erroneous
admission of evidence obtained in violation of the Fourth Amendment is constitutional
error that must be analyzed under Texas Rule of Appellate Procedure 44.2(a). Tex. R.
App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under
Rule 44.2(a), “we must reverse a judgment of conviction unless we determine beyond a
reasonable doubt that the error did not contribute to the conviction or punishment.”
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Holmes v. State, 323 S.W.3d 163, 173–74 (Tex. Crim. App. 2009); see Tex. R. App.
P. 44.2(a).
When a defendant pleads guilty after obtaining a pretrial ruling denying his
motion to suppress evidence, the appellate court’s determination of harm focuses on
whether the error contributed to his decision to plead guilty. See Holmes, 323 S.W.3d at
174; Lilly v. State, 337 S.W.3d 373, 384 (Tex. App.—Eastland 2011), rev’d on other grounds,
365 S.W.3d 321 (Tex. Crim. App. 2012). The following factors are relevant in making
this determination: the importance of the inadmissible evidence to the prosecution’s
case, whether the evidence was cumulative, the presence or absence of evidence
corroborating or contradicting material inadmissible evidence, and the overall strength
of the prosecution’s case. Long v. State, 236 S.W.3d 220, 224 (Tex. App.—Tyler 2007,
pet. ref’d) citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986);
see Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010); see also Lopez v. State,
615 S.W.3d 238, 265 (Tex. App.—El Paso 2020, pet. ref’d) (“Furthermore, both this
Court and our sister Courts have held, simply, that the erroneous admission of evidence
is harmless under [Rule 44.2(a)] where it is cumulative of other evidence admitted at
trial.”); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (“It
is well-established that the improper admission of evidence does not constitute
reversible error if the same facts are proved by other properly admitted evidence.”).
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3. No Harm Even If the Trial Court Erred
The DNA-profile evidence obtained from McCurley’s abandoned trash was
entirely cumulative and corroborated by other admissible evidence: namely, a DNA
sample voluntarily provided to detectives by McCurley. This voluntary sample was used
by SERI—in the same way that SERI used the trash DNA—to develop McCurley’s
DNA profile. McCurley has never complained that the voluntary profile was
improperly obtained or otherwise inadmissible. And, just as the DNA derived from
the collected trash, his voluntary sample provided a match to the SERI single-source
profile found on Carla’s bra; nothing in the record contradicts this fact. Due to the
wholly cumulative nature of the trash DNA, it was of little actual importance to the
State’s case because, even had the trial court excluded it, the State could have fully relied
on the voluntary sample to match McCurley to the single-source DNA profile from
Carla’s bra.
Further, the State’s case against McCurley was strong, highlighted by the
following evidence:
• McCurley had been a suspect for the entirety of the case because he owned a
Ruger pistol that used the same magazine as the magazine found at the crime
scene;
• McCurley told initial investigators that his pistol had been stolen before Carla’s
murder despite the fact that he later purchased a magazine for the same type of
pistol;
• Investigators retrieved a Ruger pistol hidden in the ceiling at McCurley’s
residence;
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• DNA evidence—independent of the trash DNA—linked McCurley to the
murder; and
• McCurley confessed to killing Carla.
Finally, it is notable that McCurley’s decision to plead guilty without a plea
bargain did not directly follow the trial court’s denial of his motion to suppress the trash
DNA evidence. Instead, McCurley took his case to trial and entered an unnegotiated,
open plea of guilty—approximately six weeks after the trial court denied his motion—
only after the jury had heard two-days’ worth of strong evidence against him. This
indicates that his decision to plead was not influenced by the trial court’s denial of his
suppression motion nor a plea bargain that may have been leveraged upon that denial.
See Holmes, 323 S.W.3d at 174 (noting close proximity between denial of motion to
cross-examine experts and defendants’ decision to plead as important factor to consider
when determining whether the denial contributed to their decision); Chidyausiku v. State,
457 S.W.3d 627, 631–32 (Tex. App.—Fort Worth 2015, pet. ref’d) (“[I]f the denial of
the motion to suppress contributed in some measure to the State’s leverage in the plea-
bargaining process and may have contributed to Appellant’s decision to relinquish his
constitutional rights of trial and confrontation, we cannot conclude beyond a reasonable
doubt that the error did not contribute to the conviction or punishment.”)
Accordingly, we conclude beyond a reasonable doubt that the trial court’s denial
of McCurley’s motion to suppress the DNA-profile evidence obtained from his trash
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did not contribute to his decision to plead guilty. See Holmes, 323 S.W.3d at 174. Thus,
even if the trial court did err in failing to suppress the trash DNA, such error was
harmless.
D. DNA EVIDENCE DEVELOPED BY OTHRAM
Finally, we will address McCurley’s first two issues. He argues that the trial court
erred in refusing to suppress the DNA evidence and testimony generated by Othram
because the lab was not accredited by TCFS and because its employees were not
licensed by TCFS to perform DNA forensic analysis. The State concedes that Othram
was not accredited but asserts that Othram could not obtain accreditation because the
cutting-edge FGGS technology7 that the lab employed to analyze the DNA here is not
yet eligible for accreditation by TCFS. Further, the State argues that the issue of the
unlicensed employees is irrelevant because Othram was not accredited and because it is
unclear whether Othram’s employees could even obtain licensing to perform this type
of analysis. And regardless, according to the State, if the trial court erred in failing to
suppress the Othram evidence, any error was harmless.
FGGS involves looking at the entire genome through the lens of thousands of
7
defined genetic markers scattered across it. One type of marker is DNA-SNP, which
Othram uses to develop a “kit profile” compatible with various DNA websites like
GEDMatch. GEDMatch collects DNA profiles from users of genetic genealogy
websites like 23andMe.com and maintains a database of autosomal DNA for purposes
of genealogical research. From this database, a family tree can be constructed, and
Othram uses these family trees as a forensic tool.
26
We agree with the State’s latter point and, assuming without deciding that the
trial court erred, we will hold that any such error was harmless. See Murkledove v. State,
437 S.W.3d 17, 28 (Tex. App.—Fort Worth 2014, pet. dism’d) (assuming error and
holding that any assumed error was harmless).
1. Harm Analysis for Non-Constitutional Error
When an error is non-constitutional under Rule 44.2(b), as is the assumed error
here, we will disregard the error unless it affected the defendant’s substantial rights.
Tex. R. App. P. 44.2(b). This requires us to view the entire record and reverse only if
we conclude that the error had a “substantial influence” on the outcome of the
proceeding. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (internal
quotations omitted); see Sanchez v. State, 98 S.W.3d 349, 357 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (explaining that, when a defendant pleads guilty, the proper
Rule 44.2(b) analysis is whether the error had a substantial influence on the decision to
plead guilty). Put differently, if we have a “grave doubt” as to whether the outcome
was free from the substantial influence of the error, then the error is reversible. Burnett,
88 S.W.3d at 637–38. A grave doubt exists when “the matter is so evenly balanced”
that we feel “in virtual equipoise as to the harmlessness of the error.” Id.
2. No Harm from Any Assumed Error
We have no grave doubts about the influence of the assumed error on
McCurley’s decision to plead guilty. First, though it is true that the Othram evidence
narrowed the detectives’ investigation onto persons with the McCurley surname, it was
27
undisputed that McCurley was already on a list of less than twenty suspects to be re-
investigated after the case was reopened in 2019. Detective Bennett testified that, even
without the Othram evidence, investigators would have eventually requested a DNA
sample from McCurley. In other words, Othram’s analysis that led to the McCurley
surname merely accelerated the detectives’ narrowing spotlight on McCurley.
Additionally, as outlined above in our analysis of McCurley’s fourth issue, there
was overwhelming admissible evidence pointing to McCurley’s guilt. See Long,
236 S.W.3d at 224. Chief among this evidence were the additional corroborating DNA
evidence, the pistol evidence, and McCurley’s confession. And, similar to the DNA
evidence derived from the collected trash, the Othram evidence pointing to the
McCurley surname was, in some ways, cumulative of the voluntary DNA sample
provided by McCurley. Both the Othram and voluntary DNA evidence were used to
confirm that McCurley’s DNA was found on Carla’s bra to the exclusion of others.
Finally, it is relevant that McCurley’s unnegotiated plea did not directly follow the trial
court’s denial of his motion to suppress but instead came only after the jury had heard
two days of overwhelming evidence against him.
For these reasons, even if we assume that the trial court erred in denying
McCurley’s motion to suppress the Othram DNA evidence, we hold that any assumed
error was harmless because it did not have a substantial influence on McCurley’s
decision to plead guilty.
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V. CONCLUSION
Having overruled all of McCurley’s issues on appeal, we affirm the judgment of
the trial court.
/s/ Brian Walker
Brian Walker
Justice
Publish
Delivered: August 31, 2022
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