Austin Taylor Copple v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00120-CR
___________________________
AUSTIN TAYLOR COPPLE, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1411370D
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Austin Taylor Copple moved for post-conviction DNA testing under
Chapter 64 of the Code of Criminal Procedure. In one issue, Copple argues that the
trial court erred by denying his motion. We will affirm.
II. BACKGROUND
A jury found Copple guilty of aggravated assault with a deadly weapon and
assessed punishment at seventy-five years’ incarceration, and this court affirmed,
holding in part that the evidence was sufficient to support the jury’s verdict. See
Copple v. State, No. 02-16-00197-CR, 2017 WL 1287544 (Tex. App.—Fort Worth Apr.
6, 2017, pet. ref’d) (mem. op., not designated for publication). Many of the facts
recited here are also recited in that opinion. Id.
Lance Boltz, a Bedford resident, owned a home repair and landscaping
business. Copple occasionally worked for Boltz and lived with him for about a
month. Near 2 a.m. one day in the spring of 2015, after Copple had stopped living
with Boltz, Copple called Boltz and asked him to drive Copple to a job later that
morning. Boltz agreed to do so and picked Copple up from a house in North
Richland Hills. They both returned to Boltz’s house. According to Boltz, he told
Wesley Price, another houseguest, about Copple’s presence there, although Price said
that he was unaware of Copple’s presence and never saw him in the house. Boltz
then allegedly went into his room and fell asleep.
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Later, Boltz awoke when someone began repeatedly striking his head. Through
some light coming from a fish aquarium, Boltz saw a silhouette of his attacker and of
a machete that Boltz recognized as one that he used in his lawn service business.
Boltz raised his hands to protect against the blows, but the attacker hit his hands with
the machete, and Boltz blacked out.
When Boltz regained consciousness, he noticed that he was bleeding. He got
out of his bed and attempted to shut and lock his bedroom door, but someone again
began striking his head. From the limited light in the room, including the aquarium
light and light from a neighbor’s house, Boltz recognized Copple as the attacker. By
Boltz’s account, Copple was wearing the same clothes as when Boltz had picked him
up, including a dark shirt and a hunting vest. As Copple continued striking Boltz,
Boltz again blacked out.
When Boltz came to, he walked into a bathroom, locked the door, and realized
that he had “a lot of blood profusely pouring down the front of [his] face.” Price
awoke and came to the bathroom, and Boltz asked Price to get help. Price noticed
that Boltz’s Samsung cell phone was missing, and Price went to another house to call
911. An ambulance arrived and transported Boltz to a hospital, where he received
treatment for injuries to several parts of his body.
Police officer Michael Kratky interviewed Boltz at the hospital. Kratky saw
that Boltz had several injuries and had been bleeding. Boltz told Kratky that Copple
had attacked him. At about 7 a.m. that day, Detective Anthony Shelly received a call
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about the assault. He went to Boltz’s house and saw blood covering floors, pillows,
and sheets.
Without any knowledge of what had occurred at Boltz’s house, Officer Rodney
Pace was working in Hurst and received a call about a man engaging in suspicious
acts, including looking into a vehicle whose owner had left the vehicle running with
the door open and looking through a mailbox, at a location that was within walking
distance of Boltz’s house. Pace found Copple, who matched the description given in
the call. According to Pace, Copple was “scratched up,” had no shoes on, and “was
obviously high on some kind of drug.” Copple could not provide a sensible story
about why he was there.
Investigator Zachary Hicks became involved in the investigation into the
assault on Boltz. Looking for evidence related to the assault, he walked on a path
from Boltz’s house to where Pace had found Copple. In a drainage area along that
path, he found a machete, a Samsung cell phone battery, and a package of bandages
that matched a bandage that Copple had in his pocket upon his arrest.
When Boltz returned home from the hospital weeks later, he found the shirt
and vest that Copple had worn on the morning of the assault. Those items were
“caked in blood.” He also found the shoes that Copple had been wearing that
morning.1
1
In the factual background section of this court’s opinion related to Copple’s
direct appeal, the opinion states that Boltz found the shoes and clothing that Copple
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Later, Hicks and another officer identified in the record only as “C. Regan”
interviewed Copple. In the interview, Copple admitted that he had been at Boltz’s
house that morning. Copple told the interviewing officers that Boltz was acting weird
and making sexual advances toward him, which made him feel uncomfortable.
Copple said that he had left the house to buy some cigarettes even though he had no
money. According to Regan, when he told Copple that Boltz had been assaulted,
Copple’s demeanor “completely changed.” In response to this statement, Copple
allegedly looked down, became quiet, and told the officers that he had been in Boltz’s
bedroom that morning and that Boltz had continued to make sexual advances toward
him. As Copple explained his presence in Boltz’s bedroom, Regan noted that
“Copple had his hands and fingers, twisted and intertwined, as well as his feet and legs
intertwined, as he was bending over at the waist.” Regan stated that this was a
significantly different posture than Copple had during the initial part of the interview,
where, according to Regan, Copple’s posture was “normal.” Regan also said that this
part of the conversation made Copple very nervous, prompting Copple to ask for a
lawyer. During the interview, Copple also said that he had used methamphetamine
the night before Boltz brought him to the house.
had worn “that night.” Copple, 2017 WL 1287544 at *2. But later, in the analysis
section of the opinion, the opinion describes Boltz’s having found the clothes that
Copple “had been wearing on the morning of the attack, and those clothes were
‘caked in blood.’” Id. at *3. The record indicates that although it was dark outside,
Boltz picked up Copple from his mother’s house “[n]ear 2 a.m.” Id. at *1. Because
Boltz and Copple’s interaction leading up to and including the assault all occurred in
the early morning hours, we will use the term “morning” in this opinion.
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After his conviction, Copple sought DNA testing under Chapter 64 of the
Code of Criminal Procedure. Specifically, Copple sought the testing of swabs taken
from the machete, small hairs found on the machete, and swabs taken from his own
hands. The trial court denied Copple’s motion. In its findings of fact, among other
findings, the trial court specifically found that:
• Significant non-biological evidence establishes Copple’s guilt.
• Boltz used machetes in his landscaping business and kept them hanging on
his garage wall.
• The machete found by police was recovered in a concrete drainage ditch
used by people to traverse the area.
• There is a tremendous likelihood of non-involved, third-party DNA being
recovered from the machete.
• The absence of any probative DNA from Copple’s hand swabs is not
exculpatory because the evidence suggests Copple had already attempted to
clean his hands.
• Copple cannot show by a preponderance of the evidence that, even if
exculpatory results were obtained from DNA testing of this evidence, there
is a greater than 50% likelihood that he would not have been convicted
given the non-biological evidence establishing his guilt.
• Copple failed to meet the requirements of Article 64.03 for post-conviction
forensic DNA testing.
In its conclusions of law, among other conclusions, the trial court concluded
that:
• Given the significant non-biological evidence that Copple committed this
aggravated assault with a deadly weapon and the tremendous likelihood of
non-involved, third-party DNA on the machete, the defendant cannot
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demonstrate by a preponderance of the evidence that, even if exculpatory
results were obtained, there exists a greater than 50% likelihood that he
would not have been convicted even if exculpatory results are obtained.
• Copple does not meet the requirements of Article 64.03 for post-conviction
forensic DNA testing because he has not shown by a preponderance of the
evidence that forensic DNA testing would establish a reasonable probability
of his non-conviction.
• Copple’s motion for forensic DNA testing is denied.
III. DISCUSSION
In one issue, Copple argues that the trial court erred by denying his Chapter 64
motion for testing of swabs from the machete, hairs from the machete, and swabs
from his hands. He also appears to argue that the trial court erred by denying his
motion without holding a hearing. We disagree.
A. Standard of Review
We review the trial court’s decision with regard to DNA testing using a
bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.
2002). We afford almost total deference to the trial court’s determination of historical
fact and application-of-law-to-fact issues that turn on credibility and demeanor, while
we review de novo other application-of-law-to-fact issues. Id.
B. Applicable Law
Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted
person may file a motion for DNA testing in the convicting court. Tex. Code Crim.
Proc. Ann. art. 64.01(a-1). The motion must be accompanied by a sworn affidavit
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containing supporting facts. Id. The convicting court may order DNA testing if it
finds that: (1) evidence still exists, is in a condition making DNA testing possible, and
is subject to a chain of custody sufficient to establish that it has not been altered;
(2) identity was or is an issue in the movant’s case; and (3) the movant established by a
preponderance of the evidence that he would not have been convicted if exculpatory
results had been obtained through DNA testing and the request is not made to
unreasonably delay the sentence. Tex. Code Crim. Proc. Ann. art. 64.03(a); Prible v.
State, 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008); Thompson v. State, 95 S.W.3d
469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Under Article 64.03, a convicted person is not entitled to DNA testing unless
he first shows that there is “greater than a 50% chance that he would not have been
convicted if DNA testing provided exculpatory results.” Ex parte Gutierrez,
337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (quoting Prible, 245 S.W.3d at 467–68);
see also Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). This burden is met
“if the record shows that exculpatory DNA test results, excluding the defendant as
the donor of the material, would establish, by a preponderance of the evidence, that
the defendant would not have been convicted.” Gutierrez, 337 S.W.3d at 899. “A
‘favorable’ DNA test result must be the sort of evidence that would affirmatively cast
doubt upon the validity of the inmate’s conviction; otherwise, DNA testing would
simply ‘muddy the waters.’” Id. at 892.
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Generally, a movant does not satisfy his burden under Article 64.03 if “the
record contains other substantial evidence of guilt independent of that for which the
movant seeks DNA testing.” Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim.
App. 2010); see also Dunning v. State, 572 S.W.3d 685, 698 (Tex. Crim. App. 2019)
(“When the true exculpatory value of the test results are weighed against all of the
inculpatory evidence, we conclude that Appellant has not shown that, had the results
been available during the trial of the offense, it is reasonably probable that he would
not have been convicted.”). Moreover, when physical evidence is collected from a
common area and could have been left by any of a number of people, meaning that
DNA test results excluding the movant as the source would not also exclude the
movant as the assailant, the movant has failed to meet the statutory requirements for
post-conviction DNA testing of that evidence. See Cate v. State, 326 S.W.3d 388, 390
(Tex. App.—Amarillo 2010, pet. ref’d); see also Pegues v. State, 518 S.W.3d 529, 535
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (discussing the different situations in
which Article 64.03 statutory requirements are met and when they are not). And
when articles have been washed or cleaned in some manner, they are not considered
probative of a movant’s innocence. See Rivera, 89 S.W.3d at 60 n.20 (“The absence of
appellant’s DNA from any anal samples (if they existed) would also be unhelpful in
establishing appellant’s innocence, as the incriminating evidence could have been
washed away during the time the child’s body was in water.”); see also Baylor v. State,
No. 02-10-00561-CR, 2011 WL 4008026, at *1 (Tex. App.—Fort Worth Sept. 8, 2011,
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no pet.) (mem. op., not designated for publication) (holding that trial court properly
denied DNA testing on stocking cap possibly washed in time before its seizure
because the absence of DNA results would not create a probability of non-
conviction).
C. Substantial Evidence of Copple’s Guilt
Here, the trial court specifically found that Copple could not show by a
preponderance of the evidence that, even if exculpatory results were obtained from
DNA testing of the evidence he requested, there was a greater than 50% likelihood
that he would not have been convicted given the non-biological evidence establishing
his guilt. Indeed, when Pace found Copple, he was within walking distance of Boltz’s
house, covered in scratches, and without shoes. A reasonable inference, which the
jury at trial was free to believe, was that the scratches occurred as Copple attacked
Boltz with the machete.
That Copple was Boltz’s assailant was further bolstered by the fact that Boltz
later found the shoes that Copple had been wearing the morning of the attack. He
also found the blood-covered clothes that Boltz said that Copple had been wearing
that morning and during the attack. The reasonable inference from this evidence is
that after attacking Boltz but before walking away from the house, Copple had
removed his clothing and shoes because of the blood contained on them. Further, on
the path from Boltz’s house to where Pace found Copple, police found a machete and
bandages that matched a bandage that Copple had in his pocket upon his arrest. The
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police also found a Samsung cell phone battery, and the jury heard that Boltz’s
Samsung phone was missing after the attack. And most significantly, Boltz identified
Copple, a person he had known for several years, as his attacker. See Threadgill v. State,
146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (relying on eyewitness testimony as
sufficient to show a defendant’s identity as a shooter).
Citing the Texas Court of Criminal Appeals decision in Blacklock v. State,
235 S.W.3d 231 (Tex. Crim. App. 2007), Copple argues that the fact that Boltz
identified him as the assailant does “not refute his contention that DNA testing could
prove his innocence by showing the attacker was another person.” But Copple’s
reliance on Blacklock is misplaced. In Blacklock, “[t]he victim knew [Blacklock] and
identified him . . . as the one who robbed and sexually assaulted her,” and the
evidence regarding “DNA testing . . . was inconclusive on the issue of identity.” Id. at
232. Several years after his conviction, Blacklock filed a motion seeking post-
conviction DNA testing “of semen left by the victim’s attacker on the victim’s pants
and panties” and retesting of the semen sample collected “from the victim’s vaginal
smears.” Id. When making this request, Blacklock demonstrated, “by a
preponderance of the evidence, that the victim’s lone attacker [was] the donor of the
material for which [Blacklock sought] DNA testing.” Id. Accordingly, the Court of
Criminal Appeals determined that “on th[at] record, exculpatory DNA test results,
excluding [Blacklock] as the donor of this material, would have established
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[Blacklock’s] innocence” even though “the victim testified that she knew [him] and
identified him as her attacker.” Id. at 232, 233.
Here, unlike in Blacklock where Blacklock demonstrated that only one potential
person could have left DNA, the trial court specifically found that because the
machete was recovered in a concrete drainage ditch used by people to traverse the
area, there was “a tremendous likelihood of non-involved[,] third-party DNA being
recovered from the machete.” See Weems v. State, 550 S.W.3d 776, 780 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (“If testing were used to show no DNA evidence
from appellant on the tool, it may mean any number of things: he wore gloves; wiped
the tool off; or did not leave a sufficient DNA sample to be analyzed. If another
person’s DNA is found on the tool, it could mean that the object was in a location
others came into contact with it.”). The trial court further found in this case that the
absence of any probative DNA from Copple’s hand swabs would not be exculpatory
because the evidence suggested that Copple “had already attempted to clean his
hands” prior to the swabs being taken. See Rivera, 89 S.W.3d at 60 n.20.
We conclude and hold that the trial court did not err by finding that—given the
significant, non-biological evidence that Copple committed the aggravated assault
with a deadly weapon and the tremendous likelihood of non-involved, third-party
DNA on the machete—Copple cannot demonstrate by a preponderance of the
evidence that, even if exculpatory results were obtained, there exists a greater than
50% likelihood that he would not have been convicted even if exculpatory results
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were obtained. See Prible, 245 S.W.3d at 470 (affirming a trial court’s denial of
postconviction DNA testing because “even if the evidence was retested and
determined to contain another person’s DNA in addition to [the defendant’s] DNA, it
would not establish by [a] preponderance of the evidence that [the defendant] would
not have been convicted”). Thus, the trial court did not err by denying Copple’s
motion for Article 64.03 DNA testing. We overrule this portion of Copple’s sole
issue.
D. No Hearing Required
In the remainder of his sole issue, Copple seems to argue that the trial court
erred by not holding a hearing regarding his Article 64.03 motion. See Tex. Code
Crim. Proc. Ann. art. 64.03 (detailing the procedures for when a trial court may order
post-conviction, forensic DNA testing). We disagree. As the Court of Criminal
Appeals has made clear, an Article 64.03 proceeding is not a “criminal trial.” Gutierrez,
337 S.W.3d at 893. As such, Article 64.03 “does not require any evidentiary hearing
before the trial judge decides whether a convicted person is entitled to DNA testing.”
Id. Thus, the trial court did not err by not conducting an evidentiary hearing before
denying Copple’s motion. See Rivera, 89 S.W.3d at 58–59 (stating that Article 64.03
does not require a hearing of any sort concerning the convicting court’s determination
of whether a convicted person is entitled to DNA testing). We overrule the
remainder of Copple’s sole issue.
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IV. CONCLUSION
Having overruled Copple’s sole issue on appeal, we affirm the trial court’s
judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 9, 2020
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