Reginald Donell Rice v. the State of Texas ( 2023 )

AFFIRMED in part; DISMISSED in part and Opinion Filed January 9, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00135-CR
No. 05-22-00136-CR
REGINALD DONELL RICE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F14-76788-R and F14-76789-R
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Nowell, and Justice Smith
Opinion by Justice Smith
Pro se appellant Reginald Donell Rice appeals the trial court’s denial of his
Chapter 64 motion seeking post-conviction DNA testing. See TEX. CODE CRIM.
PROC. ANN. art. 64.01(a-1). We dismiss Rice’s sixth point of error for want of
jurisdiction, overrule each of Rice’s remaining points of error for the reasons
discussed below, and affirm the trial court’s order denying DNA testing.
Factual and Procedural Background
Rice was convicted by a jury of two counts of aggravated assault with a deadly
weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). His punishment was enhanced
due to two prior felony convictions,1 and he was sentenced to seventy years’
confinement in each case. This Court affirmed his convictions on direct appeal. See
Rice v. State, Nos. 05-15-01427-CR, 05-15-01428-CR, 2017 WL 359755 (Tex.
App.—Dallas Jan. 19, 2017, pet. ref’d) (mem. op., not designated for publication).
On direct appeal, we summarized the underlying facts of the offense as follows:
On December 9, 2014, Rice knocked on the door to Room 332 at the
Orange Extended Stay Hotel. When [Devaunce] McCoy, also known
as Dee or Dee-Skeet, answered the door, Rice pulled out a handgun.
McCoy tried to shut the door and then turned to run toward the window.
Because he was in fear for his life, McCoy jumped from the third-story
window. He suffered cuts from the broken glass, broken bones in his
heel, and was briefly “knocked out” when he hit the ground. Rice fired
fourteen shots into the room, hitting [Frederick] Evans in his stomach,
hand, and arm, and Anthony Murphy, also known as Ant, in his
stomach and side. Rice then left the room. A video surveillance camera
recorded Rice running down the hallway with a gun in his hand.
At trial, McCoy and Evans testified Rice was the shooter. Romerros
Jackson, who was in Room 332, but was turned away from the door at
the time Evans and Murphy were shot, testified that he heard gunshots
immediately after Rice came into the room. Oleshia Brooks, who had
left Room 332 just prior to the shooting, testified she passed Rice in the
hallway and saw he had something long and black in his hand. She
heard a gunshot as she walked down the hallway, turned around, and
saw Rice shoot someone who was sitting in a chair. Tommy McKennis,
who assisted Murphy prior to medical personnel arriving at the hotel,
testified Murphy said that “Reggie” shot him.
Id. at *1.
1
The judgments of conviction show “N/A” in the blanks for “Plea to 1st Enhancement Paragraph” and
“Findings on 1st Enhancement Paragraph”; however, Rice pleaded true to the enhancement alleged in the
first paragraph, and the jury found it true in each case. Rice also pleaded true to the second enhancement
paragraph, which is properly reflected in the judgments of conviction.
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On May 7, 2020, Rice filed a motion seeking post-conviction DNA testing in
each case. See CRIM. PROC. art. 64.01(a-1). Rice did not identify in his motion the
evidence he wanted tested, and he offered only the following explanation as to how
he would not have been convicted had exculpatory DNA test results been obtained:
“This evidence would exclude a person from the group of persons who could have
committed this offense.”
The trial court directed the State to file a response. See id. art. 64.02(a). The
State opposed Rice’s motion, arguing that he had not met the requirements for
Chapter 64 testing. The State’s response indicated that the following evidence was
in the possession of the Dallas Police Department: a GSR kit, a gun box containing
a gun and magazine, cartridges, fired cartridge cases and bullets, two sheets with
blood, two shirts with blood, a towel with blood, and a brown hoodie jacket. There
was no indication that biological material2 had ever been collected from these items
for testing or storage for later testing.
The trial court denied Rice’s motion, finding that Rice failed to establish by a
preponderance of the evidence that he would not have been convicted if exculpatory
results had been obtained through DNA testing. This appeal followed. See id. art.
64.05.
2
“Biological material” is defined as “an item that is in possession of the state and that contains blood,
semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable
biological evidence that may be suitable for forensic DNA testing.” CRIM. PROC. art. 64.01(a)(1).
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Chapter 64 Post-Conviction DNA Testing
Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted
person may request the convicting court to order post-conviction DNA testing of
evidence that was collected in relation to the offense and was in the State’s
possession during the trial of the offense but was not previously subjected to DNA
testing.3 Id. art. 64.01(a-1), (b)(1). To be entitled to such testing, the trial court must
find that (1) the evidence still exists and is in a condition making DNA testing
possible; (2) the evidence has been subjected to a chain of custody sufficient to
establish that it has not been substituted, tampered with, replaced, or materially
altered; (3) there is a reasonable likelihood that the evidence contains biological
material suitable for DNA testing; and (4) the perpetrator’s identity was or is an issue
in the case. Id. art. 64.03(a)(1); Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim.
App. 2011). The trial court must also find that the convicted person established by
a preponderance of the evidence that (1) he would not have been convicted if
exculpatory DNA test results had been obtained; and (2) he is not requesting the
testing to unreasonably delay the execution of his sentence or the administration of
justice. See CRIM. PROC. art. 64.03(a)(2); Gutierrez, 337 S.W.3d at 889.
We review a trial court’s Chapter 64 rulings under a bifurcated standard.
Gutierrez, 337 S.W.3d at 890. We afford almost total deference to the trial court’s
3
A convicted person may also request DNA testing of evidence that was previously subjected to DNA
testing under limited circumstances. See CRIM. PROC. art. 64.01(b)(2).
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findings of historical fact and application-of-law-to-fact issues that turn on the
credibility and demeanor of the witnesses. Id. We consider all other application-of-
law-to-fact questions de novo. Id.; see also LaRue v. State, 518 S.W.3d 439, 446
(Tex. Crim. App. 2017) (“[T]he ultimate question of whether a reasonable
probability exists that exculpatory DNA tests would change the result on guilt-
innocence is an application-of-law-to-fact question that does not turn on credibility
and demeanor and is therefore reviewed de novo.”).
The Trial Court Did Not Err in Denying Rice’s Motion
Although some of Rice’s arguments are difficult to discern, Rice appears to
challenge, through his first, second, third, fourth, fifth, and eighth points of error, the
trial court’s finding that he failed to establish by a preponderance of the evidence
that he would not have been convicted if exculpatory results had been obtained
through DNA testing. Specifically, in his fifth point of error, Rice contends identity
was an issue because the police report describes another suspect wearing different
clothing than Rice. He maintains that the DNA results would have shown there was
another suspect, consistent with the police report. In his eighth point of error, Rice
asserts that the trial court did not consider all the evidence before it, such as
Romerros Jackson’s interrogation, which shows that Jackson lied under oath at trial.
Rice also asserts that, in this Court’s opinion on direct appeal, we noted the time
stamp of the surveillance video was actually one hour later than the time of the
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shooting, which casts doubt on the evidence against him. See Rice, 2017 WL
359755, at *2 n.2.4
The only items Rice addresses in his brief as evidence that should have been
tested are the “blooded sheets,” “blooded clothes,” “all the blood in the location of
the scene of the crime,” and “the 14 shell casings.” The fourteen fired cartridge
cases (shell casings) were recovered from the hotel room where the shooting
occurred. However, the record indicates that the items with blood (two sheets, two
shirts, and a towel) were collected from a different building near the hotel and that
police never linked the bloody items to the shooting. There is also no indication in
the record that the shooter was injured during the offense. Thus, on appeal, the only
evidence Rice complains about that is related to the shooting is the fourteen fired
cartridge cases. We will therefore limit our review of the trial court’s denial of DNA
testing to that evidence.
First, we note that no biological material has been identified on any of the
fired cartridge cases. We will presume for purposes of this opinion, however, that
skin tissue or cells could be recovered if the casings were swabbed. We must also
presume that the proposed testing would produce exculpatory results meaning the
results would exclude the movant as the donor of the biological material tested. Reed
v. State, 541 S.W.3d 759, 774 (Tex. Crim. App. 2017). However, if the results would
4
We also noted that Detective Patricia Gamez, the lead investigator, “testified that, in her experience,
video recorders do not always compensate for daylight savings time.” 2017 WL 359755, at *2, *2 n.2.
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“merely muddy the waters,” the movant has not met his burden. Rivera v. State, 89
S.W.3d 55, 59 (Tex. Crim. App. 2002) (quoting Kutzner v. State, 75 S.W.3d 427,
439, 439 n.27 (Tex. Crim. App. 2002) (quoting H. Research Org., Bill Analysis, Tex.
S.B. 3 at 6, 77th Leg., R.S. (March 21, 2001) (“Senate Bill 3 meant to ‘ensure that a
favorable [DNA] test would show that an inmate is innocent, not merely muddy the
waters in the case’”) (brackets in Kutzner))). To determine whether the movant
established by a preponderance of the evidence that he would not have been
convicted if exculpatory DNA test results were obtained, we look to whether the
exculpatory results “would alter the landscape if added to the mix of evidence that
was available at the time of trial.” Holberg v. State, 425 S.W.3d 282, 285 (Tex.
Crim. App. 2014). We do not consider post-trial factual developments. Reed, 541
S.W.3d at 774; Holberg, 425 S.W.3d at 285.
The State argues that exculpatory DNA results would not establish that Rice
was not the shooter, especially considering the substantial evidence presented at trial
implicating Rice. We agree.
Here, presuming that DNA testing would reveal that Rice did not deposit
biological material on the fired cartridge cases does not alter the landscape of the
evidence presented at trial. See Holberg, 425 S.W.3d at 285, 287. As we
summarized on direct appeal, multiple witnesses, including the two named victims,
identified Rice as the shooter, and video surveillance recorded Rice running down
the hall with a gun. See Rice, 2017 WL 359755, at *1. Several witnesses also
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testified that Rice had been to the hotel earlier in the night and got in a fight with
Murphy (the unindicted victim) about Murphy hanging out with Rice’s girlfriend.
Rice returned to fight Murphy, but Murphy did not come outside. Ultimately, Rice
returned with a gun. Thus, regardless of whether his DNA is found to have been
deposited on the fired cartridge cases, multiple witnesses who knew him identified
him as the shooter and provided a possible motive for the shooting.
This Court’s opinion in Delarosa v. State, affirming the trial court’s order
denying DNA testing of swabs from spent shell casings, a gun case, unspent bullets,
and a handgun, is also instructive. See No. 05-18-00281-CR, 2018 WL 5961733, at
*3–4 (Tex. App.—Dallas Nov. 14, 2018, no pet.) (mem. op., not designated for
publication). Delarosa was convicted of two counts of aggravated assault/family
violence and one count of aggravated assault, stemming from the shooting of three
victims at Delarosa’s home. Id. at *1. This court concluded that the absence of
Delarosa’s DNA on such items would not serve to exculpate him of the crime and
that the presence of an unknown person’s DNA on the items would not establish that
Delarosa would not have been convicted by the jury. Id. at *3. “Such evidence,
without information about how or when the DNA was deposited on the items, would
only prove that some unknown person, at some unknown time, touched the gun, the
bullets, and the gun case.” Id.
Similarly, DNA test results showing a third-party’s DNA to have been
deposited on the evidence at issue here, does not determine the identity of the person
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who committed the shooting and does not exculpate Rice; it merely muddies the
water. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (“[I]f DNA
testing would not determine the identity of the person who committed the offense or
would not exculpate the accused, then the requirement of Article 64.03(a)(2)(A) has
not been met.”). Thus, we conclude that Rice did not prove by a preponderance of
the evidence that he would not have been convicted if exculpatory DNA test results
had been obtained. The trial court therefore did not err by denying Rice’s motion
for post-conviction DNA testing.
As to Rice’s argument that the trial court did not consider all the evidence,
such as information regarding an alternate suspect and Jackson’s interrogation, we
conclude there is no indication in the record that the trial court failed to consider the
entirety of the evidence presented at trial or filed in conjunction with the DNA
proceedings. Defense counsel questioned Jackson and police at trial about Jackson’s
interrogation and the lack of information he provided to police. Defense counsel
further made clear in cross examination of the State’s witnesses that Jackson’s
statement to police was inconsistent with his trial testimony and that, at one point,
he was considered a suspect. However, Jackson’s statement was not admitted at trial
and is not part of the DNA record. Therefore, to the extent Rice complains about
Jackson’s interrogation itself, it was not before the trial court to consider when ruling
on Rice’s DNA motion.
We overrule Rice’s first, second, third, fourth, fifth, and eighth points of error.
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Ineffective Assistance of Counsel
In his sixth and seventh points of error, Rice complains that his trial and DNA
counsel were ineffective. We dismiss Rice’s sixth point of error and overrule his
seventh.
An appeal under article 64.05 is limited to a review of the trial court’s rulings
in the post-conviction DNA proceedings. Lising v. State, Nos. 05-03-01605-CR, 05-
03-01606-CR, 2005 WL 341586, at *2 (Tex. App.—Dallas Feb. 14, 2005, no pet.)
(not designated for publication). “Chapter 64 does not confer jurisdiction upon this
Court to entertain collateral attacks on the trial court’s judgment or to revisit matters,
such as a complaint about ineffective assistance of counsel, that should have been
raised on direct appeal.” Id. Therefore, to the extent Rice’s sixth point of error
complains that his trial counsel was ineffective for failing to secure DNA testing
prior to trial in 2015, we do not have jurisdiction to consider it, and it is dismissed.
Additionally, although there is a limited statutory right to counsel in post-
conviction DNA proceedings, see CRIM. PROC. art. 64.01(c), there is no federal or
state constitutional right to counsel under Chapter 64. Winters v. Presiding J. of
Crim. Dist. Ct. No. 3 of Tarrant Cty., 118 S.W.3d 773, 774 (Tex. Crim. App. 2003)
(orig. proceeding). This Court has concluded that, because there is no constitutional
right to counsel in a Chapter 64 proceeding, there is no constitutional right to the
effective assistance of counsel in such a proceeding. Hughes v. State, 135 S.W.3d
926, 928 (Tex. App.—Dallas 2004, pet. ref’d); Dixon v. State, 242 S.W.3d 929, 933
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(Tex. App.—Dallas 2008, no pet.) (quoting Hughes and concluding appellant could
not raise ineffective assistance of counsel claim in Chapter 64 appeal); see also
Gutierrez, 337 S.W.3d at 889, 892 (“[t]here is no free-standing due-process right to
DNA testing”; “a person’s effort to secure testing under Chapter 64 does not involve
any constitutional considerations”). Therefore, we decline to address the merits of
Rice’s seventh point of error, and it is overruled.
Conclusion
We dismiss Rice’s sixth point of error for want of jurisdiction, overrule Rice’s
remaining seven points of error, and affirm the trial court’s order denying post-
conviction DNA testing.
/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
220135F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REGINALD DONELL RICE, On Appeal from the 265th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F14-76788-R.
No. 05-22-00135-CR V. Opinion delivered by Justice Smith.
Chief Justice Burns and Justice
THE STATE OF TEXAS, Appellee Nowell participating.
Based on the Court’s opinion of this date, the order of the trial court denying
post-conviction DNA testing is AFFIRMED.
Judgment entered this 9th day of January 2023.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REGINALD DONELL RICE, On Appeal from the 265th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F14-76789-R.
No. 05-22-00136-CR V. Opinion delivered by Justice Smith.
Chief Justice Burns and Justice
THE STATE OF TEXAS, Appellee Nowell participating.
Based on the Court’s opinion of this date, the order of the trial court denying
post-conviction DNA testing is AFFIRMED.
Judgment entered this 9th day of January 2023.
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