Allan Latoi Story v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00034-CR
ALLAN LATOI STORY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-2499-C1
MEMORANDUM OPINION
This is an appeal from the trial court’s January 6, 2020 order denying Allan Latoi
Story’s motion for postconviction DNA testing under Chapter 64 of the Code of Criminal
Procedure. We will affirm.
Factual and Procedural Background
In December 2011, Story was indicted for murder relating to the stabbing death of
Zachary Davis. In December 2013, Story’s trial was held, during which the following
evidence was presented.
Joyce Akers testified that she was a longtime friend of Rene Davis,
Zachary’s sister. Akers was at Rene’s apartment with Zachary, Rene, and
[Story] on the night of the altercation. She recalled that Rene and [Story]
were arguing, when [Story] said[,] “[I]f you keep at it, I’m going to put my
hands on you.” Zachary responded[,] “[A]s long as I’m here, you’re not
going to put [your] hands on her.” [Story] told Zachary that if he interfered,
he would kill him. Akers testified that [Story] then left the room, and when
he returned, Zachary told him[,] “[W]hatever you went back there to get or
whatever you call yourself doing, you’re going to have to use it.” [Story]
then walked out the back door, and Rene followed as the two continued
arguing. Akers testified that [Story] then grabbed Rene and lifted her up
by her throat. At that time, Zachary intervened and struck [Story] with his
fist, which resulted in a physical altercation between Zachary and [Story].
Akers recalled that, as Zachary and [Story] were punching each other,
[Story] fell to the ground and Rene started hitting [Story]. Akers testified
that the fighting stopped and [Story] stood up and walked toward the back
door, while Zachary walked away from the back porch and into the yard.
As [Story] was walking away, he dropped a knife and picked it up. Akers
stated [Story] then approached Zachary who fell to the ground on his back.
Akers testified [Story] got on top of Zachary and stabbed him several times,
while she yelled [for Story to] “please stop stabbing him.” After the
stabbing, Rene ran into the house and came back outside with a hammer.
[Story] stood up and entered the apartment, while Zachary ran away from
the apartment. Akers stated that neither Zachary nor Rene had a weapon
when they were fighting [Story].
Story v. State, No. 13-14-00038-CR, 2015 WL 7352210, at *1 (Tex. App.—Corpus Christi–
Edinburg Nov. 19, 2015, pet. ref’d) (mem. op., not designated for publication).
Wanda Kendrick testified that she knew Zachary and Rene because she had been
in a relationship with their father. Kendrick recalled that she had decided to go over to
Rene’s apartment on the night of the altercation. When she arrived in the area, Kendrick
parked her vehicle and began walking toward the apartment. Kendrick testified that she
then saw Zachary run out of the gate from Rene’s apartment. Kendrick recalled that
Zachary was bleeding profusely and fell. Kendrick testified that as Zachary was lying on
Story v. State Page 2
the ground, he was saying “T,” which is the name by which she knew Story at the time.
Zachary died about five minutes later.
Officer Jason Ireland with the Waco Police Department testified that
he responded to the scene and observed Zachary on the ground gasping for
breath. Zachary died shortly after his arrival. Officer Ireland learned that
[Story] was suspected of stabbing Zachary and obtained his cell phone
number. He attempted to locate [Story]’s cell phone by determining its GPS
location. For three to four hours, Officer Ireland and other law enforcement
officials searched for [Story] using “pings” from [Story]’s cell phone.
Officer Ireland narrowed [Story]’s location to a residence within four to five
blocks of the crime scene. After confirming [Story] was located in the house,
an officer with a canine called for him to come out. After two commands
from the officer, [Story] exited the residence. Officer Ireland did not
observe any physical injuries, and [Story] did not request medical
treatment. [Story] was arrested and taken to the county jail.
....
Angelika McCallister, a crime scene technician for the Waco Police
Department, testified concerning photographs of the crime scene and the
parties involved in the altercation. McCallister explained that [Story] had
a number of superficial and non-life[-]threatening injuries, but that Rene
did not exhibit any injuries.
Dr. Janice Townsend–Parchman, the Dallas County medical
examiner, performed Zachary’s autopsy. She testified that Zachary
suffered three stab wounds to the: (1) front left shoulder, penetrating 4¾
inches; (2) liver, penetrating 4¾ inches; and (3) right thigh, penetrating 3
inches. Dr. Townsend–Parchman concluded the three stab wounds caused
Zachary’s death.
Id. at *1–2.
Venson Scott, Zachary’s and Rene’s father, testified that he had let Story borrow a
knife about two or three months before Zachary was killed. Scott described the knife as
a hunting knife that was carried in a pouch worn on a belt loop; it did not fold like a
Story v. State Page 3
pocketknife. Scott recalled that the blade of the knife was about four or five inches long.
Scott testified that he never got the knife back after letting Story borrow it.
Rene testified during [Story]’s case-in-chief. Rene stated that after
arguing with [Story], she went outside with Zachary. [Story] followed
them, and they continued to argue. Rene testified Zachary punched [Story]
“because [Story] acted like he was going to choke me.” Rene denied that
[Story] picked her up by her throat. During the altercation between [Story]
and Zachary, [Story] ended up on the ground, and she began hitting [Story]
with a stick. Rene estimated that the stick was two to three feet long and
less than four inches in diameter. After she saw [Story] stab Zachary, she
went inside the apartment to get a hammer. Rene was not sure if she hit
[Story] with the hammer or not. Following the altercation, [Story] ran into
the apartment and locked the door, while Zachary ran toward the parking
lot.
On cross-examination, Rene testified that she gave a statement to
police on the night of Zachary’s death, but did not mention the stick or the
hammer because she was scared. Rene acknowledged she visited [Story] in
the jail on four occasions following Zachary’s death. She admitted [Story]
asked her to marry him during one of the visits and discussed his upcoming
trial with her.
Id. at *2.
At the charge conference during the guilt-innocence phase, Story requested an
instruction on self-defense. The trial court denied the instruction. Having been denied
his requested self-defense instruction, Story focused in his closing argument on whether
the evidence showed that he intended to cause serious bodily injury to Zachary.
The jury found Story guilty of murder and assessed his punishment at life
imprisonment. Story appealed his conviction to this Court, and the appeal was
transferred from this Court to the Thirteenth Court of Appeals pursuant to a docket-
equalization order issued by the Supreme Court of Texas. Id. at *1 n.1 (citing TEX. GOV’T
Story v. State Page 4
CODE ANN. § 73.001). In November 2015, the Thirteenth Court of Appeals affirmed
Story’s conviction. Id. at *6.
On August 5, 2019, Story filed a motion for postconviction forensic DNA testing,
accompanied by an unsworn declaration, and a request for appointment of counsel under
Chapter 64 of the Code of Criminal Procedure. In the motion for forensic DNA testing,
Story requested that a knife that had been collected as evidence be tested. Story
referenced a report by McCallister that indicates that the knife was found in the kitchen
of the house where Story had been located after the altercation at Rene’s apartment and
that the knife had possible blood stains on it. McCallister’s report states that the stains
were tested with “TMB” for human blood and that the test yielded positive results. Story
maintained in his motion for postconviction forensic DNA testing that the knife did not
belong to him and that it had been “planted” by Waco police officers. McCallister’s report
states that the owner of the residence was asked about the knife and that he said that he
had used it two days earlier to cut chicken.
On August 5, 2019, Story also filed a motion to recuse the trial court judge, Judge
Ralph Strother, from presiding over Story’s motion for postconviction forensic DNA
testing. Judge Strother declined to recuse himself and referred the motion to the regional
presiding judge. The regional presiding judge assigned Senior Judge Rick Morris to
preside over Story’s motion to recuse. On September 30, 2019, Judge Morris signed an
order denying Story’s motion to recuse, stating that “[t]he Court finds that the Motion is
deficient and does not comply with the rules.”
Story v. State Page 5
Thereafter, on January 6, 2020, Judge Strother denied Story’s motion for
postconviction forensic DNA testing and his request for appointment of counsel. The
trial court’s order states that the trial court found as follows:
1. A hearing on this Defendant’s Motion is not required[.]
2. The presence of Defendant is not necessary[.]
3. The trial court considers affidavits, the record, the State’s response, the
Clerk’s Record, the Reporter’s Record, and other forms of relevant and
reliable proof in support of or in contravention of the Defendant’s
motion[.]
4. This Court finds that identity is not an issue in this case as required by
Texas Code of Criminal Procedure 64.03(a)(1)(C).
5. This Court finds that Movant has failed to establish by a
preponderance of the evidence that he would not have been convicted
if exculpatory results are [sic] been obtained through DNA testing, as
required by Tex. Code Crim. Proc. 64.03(a)(2).
This appeal ensued. 1
1 Story initially filed a notice of appeal from the trial court’s September 30, 2019 order denying his
recusal motion. At that time, Story already had a pending appeal in this Court from the same underlying
trial court cause number. Story’s notice of appeal from the trial court’s September 30, 2019 order denying
his recusal motion was therefore filed in the already pending appeal—No. 10-19-00025-CV. Subsequently,
Story filed what we construed as a notice of appeal from the trial court’s January 6, 2020 order denying his
motion for postconviction forensic DNA testing. Although the notice of appeal was also from the same
underlying trial court cause number as the notices of appeal that had been filed in No. 10-19-00025-CV, the
notice of appeal from the trial court’s January 6, 2020 order denying Story’s motion for postconviction
forensic DNA testing was filed in a new appellate cause—No. 10-20-00034-CR. We thereafter determined
that Story’s appeal from the trial court’s September 30, 2019 order denying his recusal motion is related to
his appeal from the trial court’s January 6, 2020 order denying his motion for postconviction forensic DNA
testing and not to the appeal in No. 10-19-00025-CV. Accordingly, all the filings associated with Story’s
appeal from the trial court’s September 30, 2019 order denying his recusal motion that were initially filed
in No. 10-19-00025-CV have been transferred to No. 10-20-00034-CR.
Story v. State Page 6
Discussion
Story raises a sole issue with two subparts. First, Story contends that Judge
Strother should have been recused from presiding over his motion for postconviction
forensic DNA testing. Second, Story contends that the trial court erred in denying his
motion for postconviction forensic DNA testing without addressing the merits of the
claims. We will address each of these contentions in turn.
A. Denial of Motion to Recuse
We begin with Story’s contention that Judge Morris erred in denying his recusal
motion. We review an order denying a motion to recuse for an abuse of discretion. See
TEX. R. CIV. P. 18a(j)(1)(A); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas 2017,
no pet.); Thuesen v. Amerisure Ins. Co., 487 S.W.3d 291, 305 (Tex. App.—Houston [14th
Dist.] 2016, no pet.).
“The procedures for recusal of judges set out in Rule 18a of the Texas Rules of Civil
Procedure apply in criminal cases.” De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App.
2004) (orig. proceeding). Rule 18a(a) provides that a motion to recuse:
(1) must be verified;
(2) must assert one or more of the grounds listed in Rule 18b;
(3) must not be based solely on the judge’s rulings in the case; and
(4) must state with detail and particularity facts that:
(A) are within the affiant’s personal knowledge, except that facts may
be stated on information and belief if the basis for that belief is
specifically stated;
(B) would be admissible in evidence; and
Story v. State Page 7
(C) if proven, would be sufficient to justify recusal . . . .
TEX. R. CIV. P. 18a(a).
Here, Story asserted in his recusal motion that he felt like Judge Strother was
biased and could not be neutral. See id. R. 18b(b)(1), (2). Story’s claims of bias and
partiality were based predominantly on Judge Strother’s rulings in the case. Specifically,
Story complained about Judge Strother setting his bond at an “excessive” amount,
denying his motion to reduce bond, denying his motion for speedy trial, impliedly
overruling his pro se objection to proceeding to trial even though he alleged “misconduct”
by the State, 2 denying a request to admit certain evidence on his behalf at his trial,
denying a self-defense instruction at his trial, and denying his postconviction petition for
writ of mandamus for discovery material. Other than Judge Strother’s rulings in the case,
Story supported his claims of bias and partiality by alleging only that he “feels” as if
Judge Strother helped the prosecutor with a strategy to obtain a conviction against him
and that Judge Strother must have engaged in impermissible ex parte communications
with the prosecutor to do so. Story based these beliefs on the fact that he was indicted in
January 2013 for the offense of failure to register as a sex offender, which the State
subsequently moved to dismiss stating as its basis for dismissal that Story was not
required to register as a sex offender under Texas law, and the cause was dismissed in
June 2013. Story alleged in his recusal motion that he was allowed to be charged with the
2 Story was represented by appointed counsel at the time he made this objection as well as throughout his
trial and direct appeal.
Story v. State Page 8
“bogus charge” of failure to register as a sex offender as a tactic to get him to enter into a
plea agreement regarding his murder case because the prosecution “knew this case was
not murder.”
Story’s allegations that are not related to his complaints about Judge Strother’s
rulings in the case are, however, nothing more than mere suspicions and speculation that
Judge Strother acted improperly, which is insufficient to require recusal. See id. R. 18a(a);
Ex parte Ellis, 275 S.W.3d 109, 122 (Tex. App.—Austin 2008, no pet.). We are therefore left
with Story’s complaints about Judge Strother’s rulings in the case. The United States
Supreme Court has stated that “judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147,
1157, 127 L.Ed.2d 474 (1994); see Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001)
(per curiam) (citing Liteky, 510 U.S. at 555, 140 S.Ct. at 1157). Judicial rulings are grounds
for appeal, not for recusal. Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. Furthermore, opinions
the judge forms during a trial do not necessitate recusal “unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge.” Id.; Dow Chem. Co., 46 S.W.3d at 240 (quoting Liteky, 510 U.S. at 555, 140 S.Ct.
at 1157); Fox v. Alberto, 455 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). We therefore conclude that, on this record, Judge Morris did not err in denying
Story’s recusal motion.
Story v. State Page 9
B. Denial of Motion for DNA Testing
We now turn to Story’s contention that the trial court erred in denying his motion
for postconviction forensic DNA testing without addressing the merits of the claims.
Generally, we review a trial court’s decision on a motion for DNA testing under a
bifurcated standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App.
2004). We afford almost total deference to the trial court’s determination of issues of
historical fact and application-of-law-to-fact issues that turn on credibility and demeanor.
Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo application-
of-law-to-fact issues that do not turn on credibility and demeanor. Id. In the instant case,
the trial court did not conduct a hearing. Therefore, we review the trial court’s denial of
Story’s motion for DNA testing de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim.
App. 2005).
Article 64 of the Code of Criminal Procedure allows for postconviction DNA
testing of physical evidence. See TEX. CODE CRIM. PROC. ANN. arts. 64.01–.05. “The
purpose of this DNA-testing mechanism is to allow a convicted person to establish
innocence through DNA test results that exclude the person as the perpetrator of the
offense.” Pegues v. State, 518 S.W.3d 529, 533 (Tex. App.—Houston [1st Dist.] 2017, no
pet.) (citing Blacklock v. State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007)). A
convicting court may order postconviction DNA testing only if the court finds, among
other things: (1) “identity was or is an issue in the case” and (2) the convicted person has
established by a preponderance of the evidence that “the person would not have been
Story v. State Page 10
convicted if exculpatory results had been obtained through DNA testing.” TEX. CODE
CRIM. PROC. ANN. art. 64.03(a).
Story first argues here that the trial court erred in concluding that a hearing on his
motion for postconviction forensic DNA testing was not required and that his presence
was not necessary. But the Court of Criminal Appeals has held, “Nothing in Article 64.03
requires a hearing of any sort concerning the trial court’s determination of whether a
defendant is entitled to DNA testing.” Rivera, 89 S.W.3d at 58–59; Russell v. State, 170
S.W.3d 732, 733 (Tex. App.—Waco 2005, no pet.) (quoting Rivera, 89 S.W.3d at 58–59).
Story also argues that the trial court erred in concluding that identity is not an
issue in this case as required by Article 64.03(a)(1)(C). To support his argument, Story
references Article 64.03(b), which states:
A convicted person who pleaded guilty or nolo contendere or, whether
before or after conviction, made a confession or similar admission in the
case may submit a motion under this chapter, and the convicting court is
prohibited from finding that identity was not an issue in the case solely on
the basis of that plea, confession, or admission, as applicable.
TEX. CODE CRIM. PROC. ANN. art. 64.03(b). But identity never was nor is an issue in this
case. Story initially attempted to argue that he acted in self-defense. A trial court is not
required to order DNA testing under circumstances where the defendant admits to being
the perpetrator but seeks to establish self-defense. Peyravi v. State, 440 S.W.3d 248, 249–
50 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Reger v. State, 222 S.W.3d 510, 514
(Tex. App.—Fort Worth 2007, pet. ref’d). Story next argued during his trial that the
evidence failed to show that he intended to cause serious bodily injury to Zachary. Story
still never denied being the perpetrator. Finally, Story admitted in both his motion for
Story v. State Page 11
postconviction forensic DNA testing and the accompanying unsworn declaration that he
had an altercation with Zachary and Rene that night. Accordingly, we conclude that the
trial court did not err in finding that identity is not an issue in this case as required by
Article 64.03(a)(1)(C). See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(C).
Story lastly argues that the trial court erred in concluding 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, as required by Article 64.03(a)(2). We
disagree. The specific knife that Story wants tested was found at the residence where he
was located several hours after the altercation that occurred with Zachary at Rene’s
apartment. Story argued in his motion for postconviction forensic DNA testing that the
knife did not belong to him and was not relevant to the altercation with Zachary. The
prosecution must have agreed because that specific knife was never mentioned during
the trial of this case, and no knife was ever introduced as evidence. Accordingly, we
conclude that the trial court did not err in finding that Story 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, as required by Article 64.03(a)(2). See id.art. 64.03(a)(2).
Conclusion
In light of the foregoing, Story’s sole issue is overruled. We affirm the trial court’s
January 6, 2020 order denying Story’s motion for postconviction DNA testing under
Chapter 64 of the Code of Criminal Procedure.
Story v. State Page 12
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 9, 2022
Do not publish
[CRPM]
Story v. State Page 13