In Re Jeffrey Allen Whitfield v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00253-CR
In re Jeffrey Allen Whitfield
FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 63048, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Jefferey Allen Whitfield, proceeding pro se, appeals the district court’s
order denying his post-conviction motion for DNA testing under Chapter 64 of the Texas Code
of Criminal Procedure. See Tex. Code Crim. Proc. arts. 64.01-64.05. Because we conclude that
Whitfield failed to demonstrate that the requirements of Chapter 64 of the Texas Code of
Criminal procedure are met, we will affirm the district court’s order.
BACKGROUND1
One early morning, in February 2008, a police officer on patrol discovered a
vehicle parked in an isolated area off a dirt road in Bell County. The officer stopped to
investigate and using his spotlight, observed a male and female in the vehicle. Upon the
officer’s request, the female got out of the vehicle and reported to the officer that the male was
attempting to force her, at gunpoint, to have sexual intercourse. Later that day, the female
1
Because the facts of the underlying case are well known to the parties and are set forth
in the Court’s opinion affirming Whitfield’s conviction, we do not recite them in detail here. See
Whitfield v. State, No. 03-09-00434-CR, 2010 Tex. App. LEXIS 6366, at *7 (Tex. App.—Austin
Aug 3., 2010, pet. dism’d) (mem. op., not designated for publication).
complainant was examined by a sexual-assault-nurse examiner (SANE), where she related to
the SANE that she was forced to perform oral sex at gunpoint. The SANE obtained oral swabs
from the complainant for the purpose of preserving potential DNA evidence.
In May 2008, Whitfield was charged with aggravated sexual assault. See Tex.
Penal Code § 22.021. At trial, the complainant testified that she was walking home from a
friend’s house at 2:30 a.m. when a vehicle pulled up beside her. The driver, whom she identified
as Whitfield, asked her for directions and then offered to give her a ride. Although she initially
refused the offer, she eventually accepted and got into the vehicle. Whitfield began to drive
around and eventually turned on to a dirt road, where he stopped the vehicle. The complainant
testified that Whitfield then offered her drugs in exchange for sex, and after she refused, he
produced a pistol, pointed it to her head, and forced her to masturbate him and then to perform
oral sex on him.
During the punishment phase, Whitfield admitted that he engaged in sexual contact
with the victim but contended that the complainant had consented to that contact. At the
conclusion of trial, Whitfield was found guilty of the charged offense, and the district court
assessed punishment at ninety-nine years’ confinement. On appeal, this Court affirmed the
conviction. See Whitfield v. State, No. 03-09-00434-CR, 2010 Tex. App. LEXIS 6366, at *7
(Tex. App.—Austin Aug. 3, 2010, pet. dism’d) (mem. op., not designated for publication).
On February 17, 2022, Whitfield filed a motion seeking DNA testing of the oral
swabs that were procured during the SANE examination.2 In his motion, Whitfield points out
2
Whitfield has filed multiple post-conviction motions for DNA testing. See In re
Whitfield, No. 03-19-00582-CV, 2020 Tex. App. LEXIS 3353, at *3-4 (Tex. App.—Austin Apr.
22, 2020, orig. proceeding) (mem. op.) (discussing Whitfield’s previous motions for DNA
testing). Most recently, Whitfield attempted to appeal an order denying a motion for DNA
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that although the complainant claimed to have been forced to perform oral sex, previous testing
of the swabs did not reveal any sperm or semen. According to Whitfield’s motion, retesting of
oral swabs using newer testing techniques would prove that he did not assault the victim. In his
affidavit, attached in support of his motion, Whitfield denies forcing the complainant to engage
in sexual activity and states that his sexual contact with the victim was limited to the victim
kissing him on the “outside of his mouth” and neck.
The district court denied Whitfield’s motion for DNA testing and, upon
Whitfield’s request, entered findings of fact and conclusion of law. In denying Whitfield’s
motion, the court determined that he was not entitled to forensic DNA testing because, in part,
he had failed to establish that “identity was or is an issue in the case.” See Tex. Code Crim.
Proc. art. 64.03(a)(1)(B). This appeal followed. See id. art. 64.05 (authorizing appeals from
rulings on motions for forensic DNA testing).
BACKGROUND LAW AND STANDARD OF REVIEW
Under Chapter 64 of the Code of Criminal Procedure, “a convicted person may
submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable
likelihood of containing biological material.” Id. art. 64.01(a-1). When requesting testing of
evidence that was previously subjected to DNA testing, the convicted person must show that
although previously subjected to DNA testing, the evidence “can be subjected to testing with new
techniques that provide a reasonable likelihood of results that are more accurate and probative than
the results of the previous test.” See id. art. 64.01(b)(2).
testing, signed by the district court on February 2, 2021. See In re Whitfield, No. 03-21-00170-
CR, 2021 Tex. App. LEXIS 9112, at *1 (Tex. App.—Austin Nov. 10, 2021, no pet.) (mem. op.,
not designated for publication). Because the appeal was untimely, we dismissed the appeal for
want of jurisdiction. Id. at *2.
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A convicted person moving for DNA testing must demonstrate that certain
statutory requirements are met. See id. art. 64.03 (requirements for forensic DNA testing).
Among other things, the convicting court must find that “identity was or is an issue in the case,”
id. art. 64.03(a)(1)(C), and the convicted person must establish by a preponderance of the evidence
that “the person would not have been convicted if exculpatory results had been obtained through
DNA testing,” id. art. 64.03(a)(2)(A). In this context, a “preponderance of the evidence” means
that “a greater than 50% likelihood” that the defendant “would not have been convicted had any
exculpatory results generated by the proposed testing been available at the time of [his] trial.”
Holberg v. State, 425 S.W.3d 282, 287 (Tex. Crim. App. 2014). “Exculpatory results” means only
results excluding the convicted person as the donor of the DNA. Hall v. State, 569 S.W.3d 646,
655-56 (Tex. Crim. App. 2019).
Ordinarily, we review a trial court’s decision to deny a motion for postconviction
DNA testing under a bifurcated standard of review. Reed v. State, 541 S.W.3d 759, 768 (Tex.
Crim. App. 2017). Under this standard, we defer to the trial court’s findings of historical fact
and application-of-law-to-fact issues that turn on the credibility and demeanor of the witnesses.
Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). However, where, as here,
the trial court decides the motion based solely on the written submissions, the trial court is in no
better position than we are to decide the issues, and we review the issues de novo. Smith v. State,
165 SW.3d 361, 363 (Tex. Crim. App. 2005).
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ANALYSIS
In his first issue on appeal, Whitfield contends that the district court erred in
concluding that “identity was not or is an issue in this case.”3 See Tex. Code of Crim. Proc.
art. 64.03.
“The identity requirement in Chapter 64 relates to the issue of identity as it
pertains to the DNA evidence.” Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008).
Therefore, regardless of the strength of the identification evidence adduced at trial, a defendant
can make identity an issue in the case by showing that DNA tests would prove his innocence.
Sims v. State, No. 03-14-00201-CR, 2014 Tex. App. LEXIS 13434, at *6 (Tex. App.—Austin
Dec. 17, 2014, no pet.) (mem. op., not designated for publication) (citing Esparza v. State, 282
S.W.3d 913, 922 (Tex. Crim. App. 2009); Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim.
App. 2007)). However, “if DNA testing would not determine the identity of the person who
committed the offense or would not exculpate the accused,” then the requirements for DNA
testing under Chapter 64 have not been met. Prible, 245 S.W.3d at 470.
Based on our review of the record, we conclude that the district court did not
err in finding that identity was not an issue in the proceedings that resulted in Whitfield’s
conviction. The undisputed evidence from trial shows that Whitfield was alone with the
complainant when the alleged attack occurred. She testified as to how she met Whitfield and
how the attack was carried out, and she identified Whitfield as the lone attacker. In addition, no
3
Specifically, the district court found:
There is no issue of identity in this case, in that: the record reflects that the
defendant and the victim were alone together when the offense occurred and when
discovered by law enforcement; when the defendant testified at his punishment
hearing he admitted that he and the victim had sexual contact but said it was
consensual; and the victim identified the defendant in court as her attacker.
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evidence suggesting that another individual was potentially involved or responsible was
presented, and during the punishment phase, Whitfield admitted to having sexual contact with
the complainant, although he asserted that it was consensual. In short, the issue at trial was not
who had sexually assaulted the complainant. Instead, the issue was whether sexual contact
occurred between Whitfield and the complainant and whether that contact was nonconsensual,
such that a sexual assault had occurred when the officer discovered the complainant in
Whitfield’s vehicle. See Williams v. State, No. 05-05-01213-CR, 2006 Tex. App. LEXIS 9626,
at *4 (Tex. App.—Dallas Nov. 7, 2006, no pet.) (mem. op., not designated for publication)
(concluding that identity was not at issue in sexual-assault case where issue was whether
victim consented).
Nevertheless, Whitfield contends that if “more accurate and more reliable testing”
were conducted and the results of the testing showed that a third party was the sole source of
“identifiable biological evidence,” it would prove his innocence. We disagree. At trial, the
SANE testified that she took oral swabs because the complainant had reported that she was
forced to perform oral sex and that seminal fluid was excreted. The forensic scientist testified
that although no semen was detected on the swabs, this result was not unusual and that, in fact,
she had never had an oral swab test positive for semen. However, despite this lack of DNA
evidence, the jury found Whitfield guilty of the alleged assault. While the presence of semen
from someone other than Whitfield could establish that the complainant had sexual contact with
someone other than or in addition to Whitfield, he does not explain, and nothing in the evidence
suggests, how this evidence would rule him out as the complainant’s attacker. See In re Valchar,
No. 03-09-00127-CR, 2010 Tex. App. LEXIS 3226, at *6 (Tex. App.—Austin Apr. 29, 2010,
no pet.) (mem. op., not designated for publication) (explaining that presence of someone else’s
6
DNA on complainant’s clothing would not exculpate appellant “because there is no factual basis
for concluding that this semen was the attacker’s and not complainant’s boyfriend”). That is,
Whitfield has failed to show, by a preponderance of the evidence, that if the jury had heard
evidence that the oral swabs contained semen from a third party, the jury would have concluded
that someone other than Whitfield had sexually assaulted the complainant in his vehicle or that
the assault in the vehicle did not occur. See Hall, 569 S.W.3d at 658 (“The presence of a third
party’s DNA is so strongly exonerating when it is clear that the biological material in question
was left by a lone assailant.”); see also Fothergill v. State, No. 05-15-00862-CR, 2016 Tex. App.
LEXIS 3691, at *7 (Tex. App.—Dallas Apr. 11, 2016, pet. ref’d) (mem. op., not designated for
publication) (“A trial court does not err in denying post-conviction DNA testing where, at
most, exculpatory DNA tests would ‘merely muddy the waters.’” (quoting Eubanks v. State,
113 S.W.3d 562, 565 (Tex. App.—Dallas 2003, no pet.)).
The district court did not err in concluding that identity was not and is not an issue
in the case, and consequently, we overrule Whitfield’s first issue on appeal. Because Whitfield
failed to demonstrate that the requirements of Chapter 64 were met, the court did not err in
denying his motion for DNA testing.4
4
In addition, it appears that Whitfield may not have laid the proper foundation under
Chapter 64 for requesting the retesting of the oral swabs. See Tex. Code Crim. Proc. art.
64.01(b)(2) (allowing for forensic DNA retesting where the evidence “can be subjected to testing
with newer testing techniques that provide a reasonable likelihood of results that are more
accurate and probative than the results of the previous test”). Nothing in Whitfield’s motion
specifies what newer testing methods are available or why such testing would likely produce
different results. Because we can affirm the district court’s ruling on the ground that identity
was not and is not an issue, we need not decide this issue. See Fothergill v. State, No. 05-15-
00862-CR, 2016 Tex. App. LEXIS 3691, at *7 (Tex. App.—Dallas Apr. 11, 2016, pet. ref’d)
(mem. op., not designated for publication) (noting that appellant did not establish that retesting
was warranted under article 64.01(b)(2) but affirming denial of motion for DNA testing on other
ground). Similarly, we need not decide Whitfield’s remaining appellate issues, in which he
7
CONCLUSION
We affirm the district court’s order denying appellant’s motion for forensic DNA testing.
__________________________________________
Chari L. Kelly, Justice
Before Justices Baker, Kelly, and Theofanis
Affirmed
Filed: August 29, 2023
Do Not Publish
argues that the district court erred “in finding that there is no biological fluid that was detected
on the oral swabs” and that “there are no reasonable grounds for a motion for DNA testing.” See
Tex. R. App. P. 47.1.
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