The State of Texas v. Gus Mays, Jr. ( 2023 )

Reversed, Remanded, and Opinion Filed August 23, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
Nos. 05-22-01353-CR,
05-22-01354-CR,
05-22-01355-CR,
05-22-01356-CR
THE STATE OF TEXAS, Appellant
V.
GUS MAYS, JR., Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F92-45732, F92-45733, F92-45734, & F92-45735
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Miskel
Opinion by Justice Partida-Kipness
In one issue, appellant the State challenges the trial court’s granting of
appellee Gus Mays, Jr.’s motion for Chapter 64 DNA testing. We sustain the State’s
issue and reverse and remand.
BACKGROUND
Mays was convicted of capital murder and sentenced to life imprisonment in
1993 for the murders of Keenon Thomas, Rosetta “Nanna” Anderson, Charles
Wilson, and Roderick Thomas. The Amarillo Court of Appeals affirmed Mays’s
conviction in 1995.1 In 2018, Mays filed a request under chapter 64 for the
appointment of counsel to assist him in presenting his chapter 64 motion. See TEX.
CODE CRIM. PROC. art. 64.01. In March 2019, the trial court appointed Mays an
attorney and in April 2019, Mays filed his motion for post-conviction testing stating
“there was evidence containing biological material secured” related to his offenses.
Without stating what evidence he was referencing, Mays argued the evidence had
not been previously subjected to DNA testing and there was a “substantial likelihood
that DNA testing of the biological evidence would show that the defendant is not
guilty of th[ese] charges.” He also alleged “identity was and is an issue in this case”
and there is a “reasonable probability that the defendant would not have been
convicted if exculpatory results were obtained through DNA testing.”
A. Facts Deduced from Trial
In 1992, Nanna, her adult grandsons Keenon and Roderick, and friend Wilson
were murdered in Nanna’s kitchen following a get-together. Keenon’s parents had
given him $1,100 earlier in the evening for vehicle expenses. Keenon’s estranged
wife, Kasandra, was also present and argued with Keenon earlier in the evening over
her missing pager.
1
See Mays v. State, Nos. 07-93-00266-CR, 07-93-00267-CR, 07-93-00268-CR, and 07-93-00269-CR
(Tex. App.—Amarillo Feb. 22, 1995, pet. ref’d) (mem. op., not designated for publication).
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Testimony from trial established Kasandra was in a sexual relationship with
Mays and went to Mays’s apartment after leaving Nanna’s house. Kasandra stated
she told Mays about her argument with Keenon and fell asleep. She left Mays’s
apartment around 5:30 a.m. and was later picked up by Keenon’s mother to return
to Nanna’s where they discovered the four deceased bodies.
Later in the day, following the discovery of the bodies, Mays called Kasandra
and said he had something to tell her. They met at Kasandra’s friend Juanita Jones’s
apartment. When Kasandra stated she was concerned that whoever killed Keenon
would come back for other family members, Mays told her she did not need to worry,
the “people that they was after, they got,” he was the “one who had done it,” and he
had taken “care of his business.” According to Kasandra and Juanita’s testimony,
Mays explained in detail how he had killed the four victims. When Kasandra
expressed doubt, Mays showed her Keenon’s wallet which had been missing at the
crime scene.
Mays told the two women he and an accomplice identified as “D” went to
Nanna’s home looking for Keenon. Mays stated he shot Keenon and Nanna in the
kitchen, while “D” was outside with Roderick and Wilson. Mays instructed “D” to
bring the other two men inside the kitchen. Roderick refused to lie on the floor as he
was instructed, so Mays shot and killed him. Mays instructed “D” to shoot Wilson.
“D” shot Wilson in the arm and leg, but Mays wanted Wilson dead, so Mays shot
him, killing him. Mays said the two men left the house, but he went back in and shot
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all the victims again to make sure they were dead. Afterwards, Mays said he used a
wet towel to “wipe everything off, because wet towels don’t have fingerprints.”
Mays presented an “alibi” defense at trial. His friend Vincent Buford testified
he had gone to Mays’s apartment after an argument with his wife and slept over there
in early October 1992, although Buford was unable to recall the specific date. Lola
Renee Jones, Mays’s girlfriend, stated Buford had slept at Mays’s on the night of the
murders and was there when she arrived at the apartment and stayed overnight. Mays
testified and denied killing the victims, stating he had been at his apartment all
evening with Buford and his cars were not in working order.
B. Chapter 64 Motion Hearing
The State filed a response to Mays’s chapter 64 motion and stated it
determined the items available for testing were: (1) fingernail clippings from Nanna
and Roderick; (2) spent casings and bullet fragments introduced as evidence at trial;
and (3) an envelope “said to contain apparent blood.”
On November 8, 2022, the trial court held a hearing on Mays’s motion. At the
hearing, Mays requested the fingernail clippings be tested. He argued if the clippings
were tested, they “would produce exculpatory results.” Mays stated Dallas police
collected several fingerprints from the crime scene, which were compared with
multiple individuals who did not reside at the home. Mays alleged if he was
“excluded from DNA testing of those fingernails, then one of those alternative
suspects identified by the Dallas Police Department was identified through that DNA
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testing that would, in fact, demonstrate . . . actual innocence that we would consider
exculpatory on the part of my client.”
The State alleged there were a “number of ways DNA can get under
someone’s fingernails.” It stated this was not a “sole perpetrator case” and based on
the evidence from trial, they knew “there were two perpetrators,” one of which was
Mays and the other one was unknown. It also argued there was “no reason to believe
Mays’s DNA–or [Mays’s alleged] perpetrator’s DNA would be under the fingernails
of these people” due to the fact the victims were shot while attempting to flee.
The trial court stated it granted Mays’s request for testing. The State asked for
findings of fact and conclusions of law. None were filed. This appeal followed. See
id. art. 44.01(a)(6).
ANALYSIS
Chapter 64 of the code of criminal procedure allows a convicted person to
“submit to the convicting court a motion for forensic DNA testing of evidence
containing biological material.” Id. art. 64.01(a-1). This motion may request testing
of evidence that was secured in relation to the offense comprising the underlying
conviction and was in the possession of the State during the trial but either was not
previously tested or, although previously tested, can be tested with newer techniques
which can provide more accurate and probative results. Id. art. 64.01(b). A
convicting court may order testing if the evidence in question “(i) still exists and is
in a condition making DNA testing possible; and (ii) has been subjected to a chain
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of custody sufficient to establish it has not been substituted, tampered with, replaced,
or altered in any material respect; and identity was or is an issue in the case.” Id. art.
64.03(a)(1). Further, the convicted person has the burden of showing by a
preponderance of the evidence “the person would not have been convicted if
exculpatory results had been obtained through DNA testing; and the request for the
proposed DNA testing is not made to unreasonably delay the execution of sentence.”
Id. art. 64.03(a)(2); see State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App.
2014).
When reviewing a judge’s ruling on a chapter 64 motion, we use a bifurcated
standard: we give almost total deference to the judge’s resolution of historical fact
issues and applications of law to fact issues turning on witness credibility and
demeanor, but we consider de novo all other applications of law to fact questions.
Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011); see also Reed v.
State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017).
In determining whether appellant has met his burden under chapter 64, we
must presume the testing of the fingernail clippings would exclude him as the donor
of the biological material tested. See Reed, 541 S.W.3d at 774. We consider 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); Robinson v. State, No. 05-22-00465, 2023 WL 3749802, at *5
(Tex. App.—Dallas June 1, 2023, no pet. h.) (mem. op., not designated for
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publication). If the results would “merely muddy the waters,” appellee has not met
his burden. Gutierrez, 337 S.W.3d at 892.
Exculpatory results do not relieve appellee from showing the likelihood he
would not have been convicted if the jury had been able to consider and to weigh
this exculpatory evidence against the other available evidence. See Reed, 541
S.W.3d at 774; Holberg, 425 S.W.3d at 287; Robinson, 2023 WL 3749802, at * 5.
“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 independent of
that for which the movant seeks DNA testing.” Swearingen v. State, 303 S.W.3d
728, 736 (Tex. Crim. App. 2010).
The State argues even if third-party DNA was found under the fingernail
clippings, this was not a “lone assailant” case, and the finding would not prove
Mays’s actual innocence. The evidence presented at trial was Mays and an unknown
accomplice only identified as “D” committed the murders. The jury charge contained
a law of parties instruction allowing the jury to convict Mays as the principle or as a
party to the offense.
Here, the victims could have encountered another person prior to or during
the commission of the offense and foreign DNA alone would not factually exclude
Mays from having committed the murders. See Swearingen, 424 S.W.3d at 38–39.
“There are many ways someone else’s DNA could have ended up in the victim’s
fingernails.” Id. at 39. “The presence of another person’s DNA at the crime scene
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will not, without more, constitute affirmative evidence of appellant’s innocence.”
Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (en banc). The evidence
showed there was a get-together at Nanna’s house earlier in the evening with
multiple people present. It is possible any DNA found under the fingernail clippings
could have come from interactions at the get-together or from an earlier time. There
was no evidence presented at trial showing the victims scratched Mays or “D.” Based
on the testimony, it appeared all four victims were shot from a short distance in
Nanna’s kitchen based on the locations of the bodies.
Mays did not meet his burden to show he would not have been convicted if
DNA testing of the fingernail clippings had produced an exculpatory result. The trial
court erred in granting Mays’s chapter 64 motion. We sustain the State’s sole issue.
CONCLUSION
Based on the record before us, we sustain the State’s sole issue. We reverse
the trial court’s granting of Mays’s chapter 64 motion and remand for proceedings
in accordance with this opinion.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
221353F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-22-01353-CR V. Trial Court Cause No. F92-45732.
Opinion delivered by Justice Partida-
GUS MAYS, JR., Appellee Kipness. Justices Reichek and Miskel
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 23rd day of August 2023.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-22-01354-CR V. Trial Court Cause No. F92-45733.
Opinion delivered by Justice Partida-
GUS MAYS, JR., Appellee Kipness. Justices Reichek and Miskel
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 23rd day of August 2023.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-22-01355-CR V. Trial Court Cause No. F92-45734.
Opinion delivered by Justice Partida-
GUS MAYS, JR., Appellee Kipness. Justices Reichek and Miskel
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 23rd day of August 2023.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the 282nd Judicial
District Court, Dallas County, Texas
No. 05-22-01356-CR V. Trial Court Cause No. F92-45735.
Opinion delivered by Justice Partida-
GUS MAYS, JR., Appellee Kipness. Justices Reichek and Miskel
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 23rd day of August 2023.
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