Terry Wayne Lee v. the State of Texas ( 2022 )

AFFIRM; Opinion Filed November 15, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00290-CR
TERRY WAYNE LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 41709
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Schenck
Terry Wayne Lee appeals from the denial of a post-conviction motion for
DNA testing. In two issues, he urges the trial court abused its discretion in denying
his motion. We affirm. Because all issues are settled in law, we issue this
memorandum opinion. TEX. R. App. P. 47.4.
BACKGROUND
On the morning of April 30, 1993, the body of Walter Eugene Henley was
discovered in the gravel driveway of a power plant located off a deserted county
road in Sadler, Texas. After examining Henley’s wounds and clothes and the drag
marks in the gravel around the body, the police opined he had been shot and killed
some time between the evening of April 29 and the early morning hours of April 30
and then dragged along the road up towards the gates of the power plant. They also
observed several bullet casings and a cigarette butt deposited inches from the body.
Appellant and his brother Shane Lee were charged and tried separately for the
murder. In 1994, a jury found appellant guilty of murder and sentenced him to life
imprisonment. Appellant appealed his conviction to this Court, including a
challenge to the sufficiency of the evidence to support the jury’s finding of guilt, and
we affirmed. See Lee v. State, No. 05-94-01163-CR, 1995 WL 689662, at *1 (Tex.
App.—Dallas Nov. 13, 1995, no pet.) (not designated for publication). Appellant’s
brother Shane Lee was later acquitted.
In October 2021, appellant filed a second motion for forensic DNA testing in
order to establish his innocence in Henley’s murder.1 In that motion, appellant
sought the DNA testing of Henley’s shirt and jeans, as well as five cigarette butts
collected near Henley’s body, a pack of cigarettes and a lighter collected from
Henley’s jeans pocket, sweepings of trace evidence collected from the floorboard of
the victim’s car, spent bullet casings collected near Henley’s body, and bloodstains
from appellant’s car. The trial court denied appellant’s motion, and its order
1
Appellant filed his first motion for forensic DNA testing in 2013, and in that motion, he requested
testing of Henley’s shirt, jeans, and shoes, and of the five cigarette butts found near Henley’s body. The
trial court denied appellant’s motion, and the denial order included findings of fact and conclusions of law,
one of which was that even if a third party’s DNA was found, those DNA results would not exculpate or
exonerate appellant. Appellant appealed that order, and this Court affirmed. See Lee v. State, No. 05-14-
01241-CR, 2015 WL 1735973, at *2 (Tex. App.—Dallas Apr. 14, 2015, no pet.) (mem. op., not designated
for publication).
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included more than seventy findings of fact and conclusions of law, including that
appellant had failed to show a reasonable probability that exculpatory tests would
change the outcome of his trial, much less prove his innocence. This appeal
followed.
DISCUSSION
There is no free-standing due-process right to DNA testing, and the task of
fashioning rules to “harness DNA’s power to prove innocence without unnecessarily
overthrowing the established system of criminal justice” belongs “primarily to the
legislature.” See Gonzales v. State, No. AP-77,104, 2022 WL 663806, at *4 (Tex.
Crim. App. Mar. 3, 2022) (not designated for publication) (citing Ex parte Gutierrez,
337 S.W.3d 883, 889 (Tex. Crim. App. 2011) (quoting District Attorney’s Office v.
Osborne, 557 U.S. 52, 62 (2009)); see also Ex parte Mines, 26 S.W.3d 910, 914
(Tex. Crim. App. 2000) (stating that there is no constitutional right to post-
conviction DNA testing). The Texas Legislature created a process for such testing
in Chapter 64 of the code of criminal procedure.
Under Chapter 64, the convicting court may order DNA testing only if the
court finds 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
altered in any material respect”;
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3. “there is a reasonable likelihood that the evidence contains biological
material suitable for DNA testing; and”
4. “identity was or is an issue in the case[.]”
TEX. CODE CRIM. PROC. art. 64.03(a)(1). Additionally, the convicted person must
establish by a preponderance of the evidence that:
1. he “would not have been convicted if exculpatory results had been
obtained through DNA testing; and”
2. “the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration of
justice.”
Id. art. 64.03(a)(2).
When reviewing a judge’s ruling on a Chapter 64 motion, we use a bifurcated
standard of review: we give almost total deference to the judge’s resolution of
historical fact issues supported by the record and applications-of-law-to-fact issues
turning on witness credibility and demeanor. See Reed v. State, 541 S.W.3d 759,
768 (Tex. Crim. App. 2017). But we review de novo all other application-of-law-
to-fact questions. See id. at 768–69.
In his first issue, appellant complains the trial court abused its discretion in
denying his motion on grounds that he failed to adequately identify the items
requested for DNA testing, failed to show the items still existed in a condition to
make DNA testing possible, and failed to show that the items had been subjected to
a sufficient chain of custody. However, even if we sustained this issue, we could
not reverse the trial court’s order because appellant failed to show by a
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preponderance of the evidence that he would not have been convicted had
exculpatory results, yielded from the requested testing, been introduced at trial. See
CRIM. PROC. art. 64.03(a)(2)(A).
At appellant’s trial, the State’s principal witness was Tina Jones. At the time
of the offense, Jones was the common-law wife of appellant’s brother Shane. In our
opinion on appellant’s direct appeal, we addressed appellant’s challenge to the
sufficiency of the evidence supporting his conviction and summarized Jones’s
testimony as follows:
Shortly after 11:30 p.m. April 29, 1993, Tina, Shane and [appellant]
proceeded in [appellant’s] automobile to meet the deceased [Henley],
who was in an automobile parked on a “back road” or “paved country
road.” The two automobiles met “side-by-side,” a door length apart.
[Appellant] and Shane exited [appellant’s] automobile and Gino exited
his automobile. Tina remained in [appellant’s] automobile at all times
in question. Earlier, Tina observed [appellant’s] revolver in the front
seat of [appellant’s] car. When [appellant] exited his car, he placed his
revolver in the back of his pants in the waistband. Tina could hear the
men cussing and arguing. Tina observed [appellant’s] hand come up
from his side and Tina heard two shots. After that, [Henley’s]
automobile drove off with its lights extinguished. [Appellant] got back
in his automobile and drove off with Tina. Shane did not get back in
[appellant’s] automobile. [Appellant] told Tina that he was going to
pick up Shane. [Appellant] placed his gun back in the front seat of his
car and Tina could smell a sulfur smell. After driving around,
[appellant] picked up Shane who was running down the road. There
was then talk about purchasing more beer. Before the meeting with
Gino, [appellant] said he did not have any money. But now, after the
meeting with Gino, [appellant] said they had money for more beer.
Later when [appellant] returned Tina and Shane to their house, Tina
heard [appellant] tell Shane “it never happened.” After sleeping a few
hours, Tina heard about [Henley’s] death.
See Lee, 1995 WL 689662, at *2.
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Appellant urges that the only evidence linking him to Henley’s murder was
entirely circumstantial and that there is no physical evidence that corroborates
Jones’s testimony. He challenges her credibility by noting her initial denial of any
knowledge before later relating that she was in appellant’s car while he and his
brother fought with, and likely shot, Henley. Given that Jones was not an accomplice
to Henley’s murder, no corroboration evidence was necessary. See Druery v. State,
225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (holding witness’s mere presence at
scene of crime does not render that witness accomplice witness); see also TEX. CODE
CRIM. PRO. art. 38.14 (prohibiting conviction on testimony of accomplice unless
corroborated by other evidence). Further, as appellant describes, Jones testified that
she denied any knowledge of the murder in her initial statement, and thus, the jury
at his trial was aware of and included that information in its weighing of Jones’s
testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)
(noting jury, as factfinder, entitled to judge credibility of witnesses).
Appellant also argues that since his brother Shane was acquitted, the theory
of the case no longer works—that he and his brother drove out to meet Henley, shot
him, moved his body, and moved Henley’s car to the convenience store where it was
later found. He points out that the evidence at trial established he used a cane and
that he needed assistance walking. The fact that appellant’s brother was acquitted
does not necessarily undercut the theory of the case. Indeed, even if Shane were the
principal and appellant the accomplice, the acquittal of the principal does not prevent
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conviction of his accomplice. See Ex parte Thompson, 179 S.W.3d 549, 553 (Tex.
Crim. App. 2005); see also TEX. PEN. CODE § 7.03(2) (stating “it is no defense . . .
that the person for whose conduct the actor is criminally responsible has been
acquitted”).
Finally, appellant urges the presence of the DNA of someone other than
himself would indicate that at least one other person met Henley, smoked a cigarette,
committed this murder, and moved Henley’s car. But even if another person had
been present at the murder, that separate DNA would not exclude appellant as a party
to the murder. See PEN. § 7.01 (abolishing all distinctions between accomplices and
principals and providing that each party to offense may be charged with commission
of offense). Accordingly, even if the requested testing were performed, the
revelation that another person was present during the murder would not exclude
appellant, and therefore he has failed to prove by a preponderance of the evidence
that he would not have been convicted if exculpatory results had been obtained
through DNA testing.
We overrule appellant’s second issue and need not address his first. See TEX.
R. APP. P. 47.1.
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CONCLUSION
We affirm the trial court’s order.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47
220290F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERRY WAYNE LEE, Appellant On Appeal from the 397th Judicial
District Court, Grayson County,
No. 05-22-00290-CR V. Texas
Trial Court Cause No. 41709.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Schenck. Justices Reichek and
Goldstein participating.
Based on the Court’s opinion of this date, the trial court’s order denying
post-conviction DNA testing is AFFIRMED.
Judgment entered this 15th day of November, 2022.
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