Brandon Blake Coleman v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00089-CR
___________________________
BRANDON BLAKE COLEMAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR12297
Before Birdwell, Bassel, Womack., JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Brandon Blake Coleman appeals from the trial court’s orders
denying his “Third Motion for Forensic DNA Testing or, Alternatively, Enter [sic]
Finding on Existing DNA” (the DNA Motion) and his “Request for Approval of
Funds for Retaining a Forensic DNA Expert” (the Expert Motion). We will affirm.
II. BACKGROUND
In October 2012, Coleman was indicted on three counts of indecency with a
child by contact, one count of improper photography, and one count of sexual
assault.1 Facing a life sentence if convicted of all five counts and having been advised
by his attorney that, given the nature of the charges, the photographic evidence, and
Coleman’s criminal history, he was unlikely to prevail at trial, Coleman pleaded guilty
to the sexual-assault count and two counts of indecency with a child by contact in
exchange for a twenty-year prison sentence.2
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The indictment also contained a habitual count alleging that Coleman had
been convicted of two prior counts of indecency with a child and two enhancement
paragraphs alleging that Coleman had previously been convicted of failing to register
as a sex offender and possession with intent to deliver a controlled substance, namely,
methamphetamine.
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Coleman actually received a separate twenty-year sentence for each of the
three counts to which he pleaded guilty, but the court ordered that these sentences
would run concurrently.
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In connection with Coleman’s case, DNA samples were collected from two of
the victims.3 With respect to the first victim, who is referred to in the indictment as
SW16, DNA testing of a right breast swab and buccal swab indicated the presence of
a DNA mixture consistent with at least two male individuals. No conclusion could be
made as to whether Coleman was a contributor to the swab taken from SW16’s
breast. DNA samples were also taken from MW19’s vulva and breasts. While the
vulvar swab reflected no male DNA, the right breast swab was consistent with a
major male and at least one other male DNA contributor. However, Coleman was
excluded as the source of either the major or minor components. The left breast
swab was also consistent with at least two male DNA contributors, but no conclusion
could be made regarding whether Coleman was one of them.
Beginning in March 2015, Coleman filed a series of post-conviction motions
and other requests for relief, including motions for additional DNA testing and
numerous petitions for writs of habeas corpus, all of which were denied.
In December 2020, Coleman filed yet another motion for additional DNA
testing—the DNA Motion—which was heard by the trial court in July 2021.4 At the
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Each of the three counts to which Coleman pleaded guilty involved a different
victim. As reflected in the indictment, the victims of the two indecency-with-a-child-
by-contact counts were SW16 and CB16. The victim of the sexual-assault count was
MW19. There is no record of any DNA testing of material collected from CB16.
The DNA Motion was initially denied without a hearing in January 2021 by
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Judge Ralph Walton. However, in April 2021, Judge David Evans, the Presiding
Judge of the Eighth Administrative Judicial Region, signed an order granting
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close of evidence, the trial court continued the hearing to allow Coleman’s appointed
counsel an opportunity to pursue the retention of a DNA expert. In August 2021,
Coleman’s counsel filed the Expert Motion in which she requested $2,500 to retain
such an expert. Following a December 2021 hearing, the trial court entered orders
denying both motions. This appeal followed.
III. DISCUSSION
In a single point, Coleman argues that the trial court erred by denying the DNA
Motion and the Expert Motion.5 Coleman’s argument lacks merit.
A. Chapter 64
Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted
person may file “a motion for forensic DNA testing of evidence that has a reasonable
likelihood of containing biological material.” Tex. Code Crim. Proc. Ann. art.
64.01(a-1). Such a motion requests testing of evidence that was in the State’s
possession during trial that either was not previously tested or, although previously
Coleman’s motion to recuse Judge Walton and vacating the January 2021 order
denying the DNA Motion. The case was then assigned to Senior District Judge
Robert Brotherton, who presided over the July 2021 and December 2021 hearings.
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Though not included as a separate point, Coleman’s brief also references his
contentions that he was not made aware of the DNA test results prior to pleading
guilty and that he would not have pleaded guilty if he had been aware of this DNA
evidence. However, as Coleman acknowledges, a Chapter 64 motion for DNA testing
is not the proper vehicle by which to bring such a complaint. Rather, the appropriate
pleading to address a lack of awareness of exculpatory evidence prior to pleading
guilty is an application for a writ of habeas corpus. See Tex. Code Crim. Proc. Ann.
art. 11.07. Accordingly, we will not address this issue here.
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tested, can be tested with newer techniques that would provide more “accurate and
probative” results. Id. art. 64.01(b); see also Holberg v. State, 425 S.W.3d 282, 284 (Tex.
Crim. App. 2014). A convicting court may order testing only if (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 it has not been substituted,
tampered with, replaced, or altered in any material respect”; and (3) “identity was or is
an issue in the case.” Tex. Code Crim. Proc. Ann. art. 64.03(a)(1); Holberg, 425 S.W.3d
at 284. Additionally, to prevail on a Chapter 64 motion, a convicted person must
prove by a preponderance of the evidence that he “would not have been convicted if
exculpatory results had been obtained through DNA testing” and that “the request
for the proposed DNA testing is not made to unreasonably delay the execution of
[the convicted person’s] sentence[.]” Tex. Code Crim. Proc. Ann. art. 64.03(a)(2);
Holberg, 425 S.W.3d at 284.
B. Standard of Review
When reviewing a trial court’s ruling on a Chapter 64 motion, we apply a
bifurcated standard of review. Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App.
2017); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard,
“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,” but “we review de novo all other application-of-law-to-fact
questions.” Reed, 541 S.W.3d at 768–69.
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C. Analysis
Because Coleman has not satisfied Chapter 64’s requirements, the trial court
properly denied his request for additional DNA testing.
First, all of the relevant evidence was previously subjected to DNA testing, and
Coleman has not shown the existence of newer testing techniques that would provide
a reasonable likelihood of results that are more accurate and probative than those
from the prior tests. See Tex. Code Crim. Proc. Ann. art. 64.01(b). Thus, Coleman
has not demonstrated that the evidence is the proper subject of a Chapter 64 motion.
See id.Second, Coleman has not shown that “identity was or is an issue in the case.”
See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(C); Holberg, 425 S.W.3d at 284. For
purposes of a Chapter 64 motion, identity is not an issue if “an exculpatory DNA
result would not . . . exclude the movant as the assailant.” Hernandez v. State, No. 13-
20-00216-CR, 2022 WL 324069, at *3 (Tex. App.—Corpus Christi-Edinburg, Feb. 3,
2022, no pet.) (mem. op., not designated for publication); see also Prible v. State,
245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (holding that “if DNA testing would not
determine the identity of the person who committed the offense or would not
exculpate the accused,” the requirements of Chapter 64 have not been met). As the
trial court noted, because all of the offenses to which Coleman pleaded guilty—
touching SW16’s and CB16’s breasts and penetrating MW19’s sex organ with his
finger—are contact offenses, neither the absence of his DNA nor the presence of a
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third party’s DNA would exonerate Coleman. Coleman’s contact DNA could easily
have been washed off or replaced with that of other individuals before the samples
were collected. Thus, Coleman has not satisfied the requirements of Article
64.03(a)(1). See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(C).
Finally, Coleman has not shown by a preponderance of the evidence that he
would not have been convicted if the results of the requested DNA testing had been
available at trial. See id. art. 64.03(a)(2)(A); State v. Swearingen, 424 S.W.3d 32, 38 (Tex.
Crim. App. 2014) (“In order to be entitled to DNA testing, the [movant] must show
by a preponderance of the evidence (51%) that he would not have been convicted if
the exculpatory results were available at trial.”). As noted above, because of the
nature of Coleman’s charged offenses, neither the absence of Coleman’s DNA nor
the presence of a third party’s DNA would exonerate him. Moreover, Coleman’s trial
counsel testified that the nonbiological evidence against Coleman, including
photographs of one of the victims, made it unlikely that Coleman would prevail at
trial. Thus, Coleman has not satisfied his burden under Article 64.03(a)(2). See Tex.
Code Crim. Proc. Ann. art. 64.03(a)(2)(A); Swearingen v. State, 303 S.W.3d 728, 736
(Tex. Crim. App. 2010) (“Texas courts have consistently held that a movant does not
satisfy his burden under Article 64.03 if the record contains other substantial evidence
of guilt . . . .”); Lair v. State, No. 02-17-00202-CR, 2018 WL 2440390, at *3 (Tex.
App.—Fort Worth, May 31, 2018, pet. ref’d) (mem. op., not designated for
publication) (affirming denial of appellant’s request for post-conviction DNA testing
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because the substantial nonbiological evidence against appellant prevented him from
meeting his burden to show that he would not have been convicted if DNA test
results exculpated him); Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (holding that the movant did not establish that DNA
testing would produce exculpatory results when other competent evidence was
available to show that he committed the offense).
Because Coleman has not satisfied the requirements of Chapter 64, the trial
court did not err by denying the DNA Motion and the Expert Motion. We therefore
overrule Coleman’s sole point.
IV. CONCLUSION
Having overruled Coleman’s sole point, we affirm the trial court’s orders.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 9, 2023
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