Reed, Rodney

AP-77,054
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
February 23, 2015 Transmitted 2/23/2015 3:22:39 PM
Accepted 2/23/2015 3:58:29 PM
ABEL ACOSTA
No. AP-77,054 CLERK
IN THE
Court of Criminal Appeals of Texas
RODNEY REED,
Appellant,
v.
THE STATE OF TEXAS
Appellee.
On Appeal from the 21st Judicial District Court, Bastrop County, Texas
STATE’S BRIEF
ORAL ARGUMENT CONDITIONALLY REQUESTED
BRYAN GOERTZ
Criminal District Attorney
Bastrop County, Texas
MATTHEW OTTOWAY
Assistant Attorney General/
Assistant District Attorney
Bastrop County, Texas
Texas Bar No. 24047707
Post Office Box 12548, Capitol Station
Austin, Texas 78711
Tel.: (512) 936-1400
Fax: (512) 320-8132
Email: matthew.ottoway@texasattorney
general.gov
Attorneys for the State
IDENTITIES OF PARTIES AND COUNSEL
Appellant
Rodney Reed
Appellant’s hearing and appeal counsel
Bryce Benjet
The Innocence Project
40 Worth Street, Suite 701
New York New York 10013
Andrew MacRae
Levatino|Pace, LLP
1101 S. Capital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
Appellee
The State of Texas
Appellee’s hearing and appeal counsel
Bryan Goertz
Criminal District Attorney of Bastrop County
804 Pecan Street
Bastrop, Texas 78602
Matthew Ottoway
Travis Bragg
Assistant Criminal District Attorneys/
Assistant Attorneys General
Post Office Box 12548, Capitol Station
Austin, Texas 78711
i
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................... i
TABLE OF CONTENTS ............................................................................ii
INDEX OF AUTHORITIES ...................................................................... iv
STATEMENT OF THE CASE ................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ................................... 1
ISSUES PRESENTED ............................................................................... 2
STATEMENT OF THE FACTS ................................................................. 2
I. Appellant’s litigation history ............................................................. 2
II. Evidence at Appellant’s trial ............................................................. 7
SUMMARY OF THE ARGUMENT ......................................................... 15
ARGUMENT ............................................................................................. 17
I. The standards for DNA testing and appellate review.................... 17
II. Appellant’s motion lacked the required specificity necessary to
prove compliance with Chapter 64’s requirements ....................... 19
III. The trial court was correct in finding that Appellant did not
meet his burden of proving that he would not have been
convicted with exculpatory test results .......................................... 27
A. Appellant’s lack of specificity worked to his detriment ....... 28
B. The trial court properly eschewed Appellant’s request to
consider post-trial evidence and such evidence is not
properly before this Court...................................................... 29
C. The trial court applied the proper exculpatory-result
presumption............................................................................ 32
D. Appellant failed to prove by a preponderance of the
evidence that he would not have been convicted armed
with exculpatory test results ................................................. 36
ii
1. Items found on Stites .................................................... 36
2. Items found near Stites ................................................ 39
3. Item discovered by a citizen ......................................... 39
4. Items found in or near the truck .................................. 40
5. Items presently in the possession of the Bastrop
District Clerk ................................................................ 41
IV. The trial court’s finding of unreasonable delay is amply
supported by the record .................................................................. 42
A. The timing, breadth, and ambiguity of Appellant’s DNA
testing request support the finding of unreasonable
delay ........................................................................................ 45
1. Time between Appellant’s request and his
execution date ............................................................... 46
2. Promptness of the request and previous
opportunities to request testing ................................... 47
B. Appellant’s overall litigation history left little doubt that
his Chapter 64 motion was filed for purposes of
unreasonable delay ................................................................ 53
V. Appellant failed to prove chain of custody for items housed by
the Bastrop District Clerk .............................................................. 55
VI. Appellant did not prove biological material on the non-per se
items he sought to test .................................................................... 58
VII. The State re-urges its motion to accelerate this appeal ................. 61
PRAYER FOR RELIEF ............................................................................ 62
WORD-LIMIT CERTIFICATE OF COMPLIANCE ............................... 63
CERTIFICATE OF SERVICE.................................................................. 63
iii
INDEX OF AUTHORITIES
Cases
Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002)............................... 44
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) ........... passim
Clarke v. State, 270 S.W.3d 573 (Tex. Crim. App. 2008) ........................ 26
Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002) ............ 26, 27, 28
Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009).......... 35, 36, 37
Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011) ...... 37, 42, 46
Holberg v. State, 425 S.W.3d 282 (Tex. Crim. App. 2014) .............. passim
Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) .......................... 39
Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) .......................... 32
Pace v. DiGuglielmo, 544 U.S. 408 (2005) ............................................... 55
Pate v. State, No. 10-09-00360-CR, 2011 WL 652920
(Tex. App.—Waco Feb. 23, 2011, pet. ref’d) ................................... 63
Prible v. State, 245 S.W.3d 466 (Tex. Crim. App. 2008) ......................... 61
Riggins v. State, No. 11-03-00307-CR, 2004 WL 743742
(Tex. App.—Eastland Apr. 8, 2004, no. pet.).................................. 63
Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ...................... 19, 48
Rosales v. State, 748 S.W.2d 451 (Tex. Crim. App. 1987) ................. 55, 59
Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) ........... 20, 33, 34
Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) ................ 48, 57
Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ...................... 57
Skinner v. State, No. AP-76675, 2012 WL 2343616
(Tex. Crim. App. June 20, 2012) ..................................................... 57
State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002) ............. 47, 51, 52
iv
State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014).......... passim
Swearingen v. State, 189 S.W.3d 779 (Tex. Crim. App. 2006)................ 57
Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App. 2010)................ 57
Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005) .......... 49, 52, 53
Whitaker v. State, 160 S.W.3d 5 (Tex. Crim. App. 2004) ........................ 31
Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) ......... passim
Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006) ........................ 29
Statutes
Tex. Code Crim. Proc. art. 64.01 (a)(2) .................................................... 20
Tex. Code Crim. Proc. art. 64.01(a) ......................................................... 19
Tex. Code Crim. Proc. art. 64.01(a)(1) ..................................................... 20
Tex. Code Crim. Proc. art. 64.01(a–1) ......................................... 17, 59, 64
Tex. Code Crim. Proc. art. 64.01(b) ................................................... 18, 19
Tex. Code Crim. Proc. art. 64.01(b)(1) ..................................................... 20
Tex. Code Crim. Proc. art. 64.01(b)(2) ..................................................... 20
Tex. Code Crim. Proc. art. 64.03(a)(1) ..................................................... 18
Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i)............................................. 64
Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii) ............................... 60, 63, 64
Tex. Code Crim. Proc. art. 64.03(a)(2) ..................................................... 18
Tex. Code Crim. Proc. art. 64.03(a)(2)(A) ................................................ 29
Tex. Code Crim. Proc. art. 64.03(a)(2)(B) .......................................... 47, 52
v
Other Authorities
Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2,
2001 Tex. Sess. Law Serv. Ch. 2 ..................................................... 49
Act of June 17, 2011, 82nd Leg., R.S., ch. 366, § 1–4,
2011 Tex. Sess. Law Serv. Ch. 366 ................................................. 49
Rules
Tex. R. Evid. 404(b) .................................................................................. 60
Tex. R. Evid. 406 ....................................................................................... 60
vi
STATEMENT OF THE CASE
This is an appeal from the denial of DNA testing in a death penalty
case. Appellant moved for DNA testing pursuant to Chapter 64 of the
Texas Code of Criminal Procedure (“Chapter 64 motion”).
2.CR(DNA).74–143.1 The State opposed. 2.CR(DNA).161–229, 307–29.
The trial court held a live evidentiary hearing, which concluded with the
denial of Appellant’s Chapter 64 motion. 4.RR(DNA).227.2 The trial
court entered written findings thereafter. 3.CR(DNA).362–68. Appellant
then filed his notice of appeal. 3.CR(DNA).359. The appeal is now before
the Court.
STATEMENT REGARDING ORAL ARGUMENT
The State believes that oral argument should be denied. Many of
the issues in this case have been authoritatively decided, the parties’
briefs adequately lay out the facts and legal arguments, and the
decisional process would not be significantly aided by oral argument,
especially given Appellant’s rapidly approaching execution date.
1 “CR(DNA)” refers to the clerk’s record for the Chapter 64 proceeding. The
references are preceded by volume number and followed by page numbers.
2 “RR(DNA)” refers to the reporter’s record for the Chapter 64 hearing. The
references are preceded by volume number and followed by page numbers.
1
Nevertheless, should the Court determine that oral argument is
appropriate, the State requests an opportunity to respond.
ISSUES PRESENTED
Whether the trial court erred by finding that Appellant
did not prove, by a preponderance of the evidence, that he
would not have been convicted of capital murder assuming
exculpatory DNA test results?
Whether the trial court erred by finding that Appellant
did not prove, by a preponderance of the evidence, that his
request for DNA testing was not made to unreasonably delay
the execution of his sentence or the administration of justice?
Whether Appellant’s Chapter 64 motion was sufficiently
specific to meet all of Chapter 64’s statutory requirements?
Whether there was an adequate chain of custody
established for items housed by the Bastrop District Clerk?
Whether Appellant proved that the items he wanted
tested were or contained biological material?
STATEMENT OF THE FACTS
I. Appellant’s litigation history
A jury found Appellant guilty of capital murder for abducting,
raping, and strangling to death Stacey Stites, and he was sentenced to
death on May 30, 1998. 1.CR.489–493.3 Appellant’s conviction was
3 “CR” refers to the clerk’s record for Appellant’s capital murder trial. The
references are preceded by volume number and followed by page numbers.
2
affirmed on direct appeal by this Court on December 6, 2000, Reed v.
State, No. 73,135 (Tex. Crim. App. Dec. 6, 2000) (Reed I), and the
Supreme Court of the United States denied Appellant a writ of certiorari
later that next year, Reed v. Texas, 534 U.S. 955 (2001).
With direct appeal pending, Appellant filed an application for state
habeas relief on November 15, 1999. 2.SHCR-01/02, at 2–251.4 A little
more than a year later, Appellant filed a “supplemental claim.” 3.SHCR-
01/02, at 391–402. On February 13, 2002, this Court denied Appellant’s
initial application on findings by the trial court sitting in habeas and
found the “supplemental claim” to be a subsequent application and
dismissed it as abusive. Ex parte Reed, Nos. 50,961-01, 50,961-02 (Tex.
Crim. App. Feb. 13, 2002) (Reed II).
Appellant turned to federal court on February 13, 2003, filing a
petition for writ of habeas corpus in the Western District of Texas, Austin
Division. Petition for a Writ of Habeas Corpus, Reed v. Thaler, No. A-02-
CV-142-LY (W.D. Tex. Sept. 26, 2012). The case was stayed and placed
in abeyance on March 1, 2004, so that Appellant could exhaust certain
4 “SHCR-01/02” refers to the clerk’s record for Appellant’s first and second state
habeas proceedings. The references are preceded by volume number and followed by
page numbers.
3
claims through the state system. Order, Mar. 1, 2004, Reed v. Thaler,
No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). Appellant thereafter
proceeded to file four additional state habeas applications.
On March 29, 2005, Reed filed his third state habeas application.
1.SHCR-03, at 2–343.5 On October 19, 2005, this Court dismissed all of
Appellant’s claims as abusive, with the exception of two claims that were
remanded to the trial court for factual development. Ex parte Reed, No.
WR-50961-03, 2005 WL 2659440, at *1 (Oct. 19, 2005) (Reed III). After a
live evidentiary hearing and findings from the trial court, this Court
issued an exhaustive opinion denying relief and finding that Appellant’s
gateway-innocence claim was not persuasive enough to overcome the
untimeliness of his procedurally defaulted claims. Ex parte Reed, 271
S.W.3d 698 (Tex. Crim. App. 2008) (Reed IV).
With his third state habeas application pending, Appellant filed his
fourth and fifth state habeas applications on March 5, 2007, and July 16,
5 “SHCR-03” refers to the clerk’s record for Appellant’s third state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
4
2008, respectively. SHCR-04, at 2–15;6 SHCR-05, at 2–89.7 Both of these
applications were dismissed as abusive by this Court in a single opinion.
Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 2009 WL 97260, at *1–
6 (Tex. Crim. App. Jan. 14, 2009) (Reed V).
After those proceedings terminated, Appellant filed his sixth state
habeas application on April 21, 2009. SHCR-06, at 2–59.8 This, too, was
dismissed as abusive by this Court. Ex parte Reed, No. WR-50961-06,
2009 WL 1900364, at *1–2 (Tex. Crim. App. July 1, 2009) (Reed VI).
The stay in federal district court was lifted on August 20, 2009.
Order, Aug. 20, 2009, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.
Sept. 26, 2012). On June 12, 2012, a federal magistrate judge
recommended denial of relief, Report and Recommendation of the United
States Magistrate Judge, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.
Sept. 26, 2012), which the federal district judge largely adopted, and who
6 “SHCR-04” refers to the clerk’s record for Appellant’s fourth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
7 “SHCR-05” refers to the clerk’s record for Appellant’s fifth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
8 “SHCR-06” refers to the clerk’s record for Appellant’s sixth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
5
independently denied relief on September 26, 2012, Order on Report and
Recommendation, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept.
26, 2012). The federal district judge also denied all of Appellant’s post-
judgment filings on February 4, 2013. Order, Feb. 4, 2013, Reed v.
Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012).
Appellant then appealed the denial of federal habeas relief, but the
Court of Appeals for the Fifth Circuit affirmed on January 10, 2014. Reed
v. Stephens, 739 F.3d 753 (5th Cir. 2014) (Reed VII). On March 19, 2014,
the same court also rejected Appellant’s attempts at rehearing without a
poll. On Petition for Rehearing and Rehearing En Banc, Reed v.
Stephens, 739 F.3d 753 (5th Cir. 2014) (No. 13-70009). The Supreme
Court of the United States denied Appellant’s petition for writ of
certiorari from this proceeding on November 3, 2014. Reed v. Stephens,
135 S. Ct. 435 (2014).
On April 8, 2014, the State requested the setting of Appellant’s
execution for November 19, 2014. 1.CR(DNA).34–35. The trial court
heard the State’s motion on July 14, 2014, and granted a modified
execution date of January 14, 2015. 1.RR(DNA).17. The same day as the
execution-setting hearing, July 14, 2014, Appellant filed his Chapter 64
6
motion. 2.CR(DNA).74–143. Almost three months later, Appellant
sought a hearing on the Chapter 64 motion. 3.CR(DNA).233–34. Two
weeks after that, Appellant filed an affidavit from a DNA analyst and an
affidavit from his attorney verifying his Chapter 64 motion.
3.CR(DNA).240–56. Then, the day before the Chapter 64 hearing,
Appellant filed his personal affidavit. 3.CR(DNA).317–18.
After considering the record and evidence presented at the Chapter
64 hearing, the trial court denied Appellant’s motion because Appellant
failed to prove, by a preponderance of the evidence, that he would not
have been convicted had exculpatory DNA test results been available at
trial and that he did not file his Chapter 64 motion to unreasonably delay
the execution of sentence or the administration of justice.
4.RR(DNA).227. These findings were later reduced to writing.
3.CR(DNA).362–68. The trial court also modified Appellant’s execution
date to March 5, 2015, for administrative reasons. 4.RR(DNA).227.
Appellant then filed his notice of appeal. 3.CR(DNA).359.
II. Evidence at Appellant’s trial
Stacey Stites was a happily-engaged nineteen-year-old just
eighteen days shy of her wedding. 43.RR.81–82, 85. She lived in an
7
apartment complex with her police-officer fiancé, Jimmy Fennell, and her
mother, Carol, who lived in the apartment below Stites’s, and with whom
Stites spent her last days alive planning her upcoming nuptials.
43.RR.81; 44.RR.51.
Stites worked at a Bastrop, Texas grocery store—the store was
about thirty miles from her residence—and was scheduled for a 3:30 a.m.
shift. 43.RR.95; 44.RR.48. When she did not show, a fellow employee
became worried and eventually called Carol around 6:30 a.m. 43.RR.96,
101–02. In turn, Carol called Fennell, and he went to look for Stites while
Carol informed authorities about Stites’s absence. 44.RR.70–71.
Before Carol knew about Stites’s disappearance, a Bastrop police
officer had, at 5:23 a.m., discovered the pickup truck Stites took to work—
Fennell’s red, compact truck—seemingly abandoned in a local high school
parking lot. 43.RR.117. Because the truck was not reported stolen, the
officer took no further action. 43.RR.118,122. Before he left, however, he
noticed a piece of a belt lying outside the truck. 43.RR.120.
Later that day, Stites’s body was found off a rural road. 44.RR.18,
21. Texas Department of Public Safety (DPS) crime laboratory personnel
processed the scene. 44.RR.108. They observed a partially clothed
8
Stites—her shirt removed, bra exposed, and missing a shoe and an
earring. 44.RR.113. Her pants were undone, the zipper broken, and her
panties were bunched at her hips. 44.RR.113–14, 122. She was
discovered with work apparel—a nametag and a large knee brace.
44.RR.128, 151. On the side of the road was another piece of belt.
44.RR.115.
Because of obvious signs of rape, a DPS criminalist took vaginal
and breast swabs from Stites’s body. 44.RR.123; 45.RR.51. On-site
chemical testing of a vaginal swab signaled the presence of semen.
44.RR.124–27. Around 11:00 p.m. that night, microscopic analysis
showed the presence of intact sperm, which indicated recent seminal
deposit—based on scientific articles, sperm remains whole within the
vaginal cavity for usually no longer than twenty-six hours. 44.RR.131;
45.RR.15–16.
Later forensic testing matched the belt fragments to each other,
and it appeared that the belt was torn apart, not cut, 47.RR.83–85, and
Fennell identified the belt as Stites’s, 45.RR.102. A search of the truck
by DPS criminalists yielded Stites’s missing shoe and earring, and the
remnants of a smashed, plastic drinking glass. 47.RR.44–45; 49.RR.34,
9
38. Additionally, the driver’s-side seatbelt was still engaged and the seat
was angled in such a way that a 6’2’’ person could properly utilize the
rearview mirror. 46.RR.101; 49.RR.43.
Stites’s body was autopsied the next day by Dr. Roberto Bayardo.
48.RR.111. He observed a large mark across Stites’s neck that matched
the pattern of her belt. 48.RR.119–20, 136–37. There were bruises on
Stites’s arms consistent with forcible restraint, bruises on her head
consistent with the knuckles of a fist, and bruises on her left shoulder
and abdomen consistent with an over-the-shoulder seat belt. 48.RR.115–
18. Based on physical changes in the body, Dr. Bayardo estimated
Stites’s time of death to be 3:00 a.m., give or take four hours. 48.RR.113–
14.
Dr. Bayardo also took vaginal swabs, in addition to oral and rectal
swabs. 48.RR.121–23. He too observed intact sperm from a vaginal
swab, which he stated indicated “quite recent[]” seminal deposit.
48.RR.121–22. There were also injuries to Stites’s anus, including
dilation and lacerations. 48.RR.126. These were consistent with penile
penetration inflicted at or near the time of Stites’s death—peri-mortem.
48.RR.126–27. And, Dr. Bayardo, via microscopic analysis, thought he
10
saw sperm heads from a rectal swab, though he acknowledged that
chemical testing was negative for semen from this swab. 48.RR.123–24.
But, he noted however, that sperm break down quicker in the rectal
cavity than in the vaginal cavity, so the fragmented sperm further
indicated recent seminal deposit. 48.RR.125.
Thereafter, DPS personnel conducted DNA testing on the vaginal,
rectal, and breast swabs, and the results indicated that the foreign DNA
came from a single source. 49.RR.95–113. They also “mapped” Stites’s
panties, which showed little movement after semen was deposited in her
vaginal cavity. 44.RR.190–91; 55.RR.40. This, too, demonstrated
seminal deposit just before her murder. 55.RR.41.
For approximately a year, law enforcement—state, county, and
municipal—searched for Stites’s killer to no avail. They interviewed
hundreds and obtained biological samples from twenty-eight males; none
matched the foreign DNA in and on Stites. 46.RR.111–12; 49.RR.114–
19. And none mentioned Appellant associating with Stites. 46.RR.112.
Appellant became a suspect in Stites’s murder after he was arrested
for kidnapping, beating, and attempting to rape and murder another
11
nineteen-year-old woman, Linda Schlueter. 46.RR.122.9 Schlueter was
abducted by Appellant approximately six months after Stites’s murder,
near both the route Stites typically took to work and the time she
disappeared—3:00 a.m. 61.RR.10, 37–47. Moreover, Appellant was
regularly seen in this area by Bastrop police officers in the early morning
hours, and his home was close to where both Stites’s and Schlueter’s
vehicles were abandoned. 50.RR.70–73, 80, 95–96. Further, Appellant’s
height—6’2’’—aligned with the angle of the driver’s seat. 49.RR.43.
Given these similarities, law enforcement inquired with DPS if they
had Appellant’s DNA profile; they did because Appellant had raped his
mildly intellectually disabled girlfriend, Caroline Rivas (this was pre-
CODIS). 46.RR.122–23.10 Appellant’s DNA profile was compared to the
foreign DNA inside and on Stites’s body and the two were consistent.
50.RR.104. Appellant was then questioned and he denied knowing
Stites. 48.RR.82–83. Additional biological samples were taken from
Appellant pursuant to a search warrant. 48.RR.18, 86–92.
9 The specific facts of Schluter’s abduction, assault, and attempted rape and
murder was not revealed to the jury until the punishment phase of trial.
10 Again, the underlying facts of Rivas’s physical- and sexual-abuse was not
provided to the jury until the punishment phase of trial.
12
More DNA testing was performed by DPS and a private laboratory
on the new samples from Appellant and those taken from Stites’s body.
49.RR.118–19; 50.RR.120–36, 140; 49.RR.127; 51.RR.33–34. The results
were conclusive—Appellant could not be excluded as the foreign DNA
contributor but 99% of the world’s population could be, and one would
only expect to see the foreign DNA profile in one person in anywhere from
24 to 130 billion people. 49.RR.118, 122; 50.RR.144–45; 51.RR.80. But,
just to be sure, samples were taken from Appellant’s father and three of
his brothers, and they were ruled out as contributors too. 49.RR.123–25
Appellant’s trial counsel attempted to counter this damning
evidence with a two-pronged attack—they tried to blame someone else
for the murder, and they argued that Appellant and Stites were engaged
in a clandestine, but consensual sexual relationship.
To prove the former, Appellant’s DNA expert testified that a hair
found on Stites’s back did not match any of the samples gathered by law
enforcement, and a couple of witnesses testified they saw a white truck
with three men in it near the area where Stites’s body was recovered.
51.RR.107–08, 124–25; 54.RR.50–52. The latter witnesses’ testimony
was significantly impeached. 51.RR.115, 119, 128–29.
13
Trial counsel also suggested that Fennell was the murderer. Law
enforcement interviewed Fennell several times and collected biological
samples from him, but they never searched his apartment. 45.RR.110–
12; 46.RR.62. Fennell was eventually cleared after law enforcement
investigated, and ruled impossible, Fennell’s ability to travel to Bastrop,
murder Stites, and return home for Carol’s phone call within the known
timeframes, and without any sort of transportation. 46.RR.127.
Further still, trial counsel cast suspicion on David Lawhon, a
Bastrop resident who murdered another woman, Mary Ann Arldt, two
weeks after Stites’s death. 46.RR.158. They called several witnesses that
testified about a connection between Stites and Lawhon, including one
who said Lawhon had confessed to killing Stites. 52.RR.29–31, 89. They
were all greatly impeached—the confession witness actually told police
someone other than Lawhon had confessed to Stites’s murder, Stites’s
good friends testified in rebuttal that Stites never dated Lawhon, and
Lawhon’s ex-wife testified that nothing unusual occurred around the
time of Stites’s murder, which was different than when Lawhon
murdered Ardlt. 52.RR.93; 54.RR.130, 138, 141–43.
14
As to the secret-relationship defense, one witness testified that she
saw Stites and Appellant talking at the grocery store, and another said
Stites came by Appellant’s house looking for him. 51.RR.136; 53.RR.92.
These were not credible accounts, however, as Appellant’s family were
frequent guests at the first witness’s bar, and the second witness initially
said “Stephanie,” not “Stacey,” was looking for Appellant, and she did not
identify Stites when shown her driver’s license photo. 51.RR.138–39;
53.RR.92–93. The jury found Appellant guilty of two counts of capital
murder. See also Reed IV, 271 S.W.3d at 702–12 (providing an extensive
recitation of the facts from Appellant’s trial).
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in denying Appellant’s
Chapter 64 motion. Initially, Appellant’s Chapter 64 motion suffered
from a lack of specificity and his litigation tactics added to the motion’s
ambiguity creating confusion that continues on appeal. Because of this
confusion, Appellant did not clearly explain to the trial court how he met
all of Chapter 64’s prerequisites to obtain testing. A trial court, however,
does not err in denying relief when a movant fails to clearly articulate
compliance with all the requirements for the relief sought.
15
Next, the record amply supports the trial court’s finding that
Appellant did not meet his burden of production and persuasion that his
Chapter 64 motion was not made to unreasonably delay the execution of
his sentence or the administration of justice. The record is replete with
Appellant’s dilatory conduct. Indeed, Appellant, even today, is
attempting to add evidence not before the trial court to seemingly justify
his laggard conduct in seeking DNA testing. Not only is this
impermissible, it does not show error in the trial court’s decision.
Moreover, Appellant failed to prove that the evidence he seeks to
test is or contains biological material. Appellant’s own witnesses
conceded that they could not categorically prove that the items Appellant
sought to test contained biological material; they merely hypothesized
DNA presence by speculating as to the facts of the crime. Guesses,
however, are not evidence.
Further, with respect to the items in the possession of the Bastrop
District Clerk, Appellant failed to prove a sufficient chain of custody. In
arguing otherwise, Appellant ignores that the statutory chain-of-custody
definition includes the phrases “tampered with” or “altered in any
material respect.” Appellant’s argument and evidence about the ubiquity
16
of “touch” DNA, combined with the undisputed testimony that these
items have been handled by numerous individuals without gloves, prove
that such items has been “tampered with” or “altered in any material
respect.”
Finally, the trial court did not err in finding that Appellant would
have been convicted despite having exculpatory results on the items he
wishes to test. Appellant attempts to define “exculpatory” in such a way
that DNA testing would always have to be ordered, a proposition recently
rejected by this Court. And Appellant’s primary basis of argument
focuses on post-trial developments, which is another issue that the Court
has rejected not long ago. Because the trial court’s ruling was correct and
because Appellant fails to demonstrate reversible error, the trial court’s
decision should be affirmed.
ARGUMENT
I. The standards for DNA testing and appellate review.
Chapter 64 of the Texas Code of Criminal Procedure permits a
“convicted person” to move for “forensic DNA testing of evidence
containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1).
The evidence must have been “secured in relation to the offense that is
the basis of the challenged conviction and was in possession of the state
17
during the trial,” and was either not previously tested or, was tested but
newer techniques could provide “more accurate and probative” results.
Tex. Code Crim. Proc. art. 64.01(b). The convicting court may order
testing, but only if (1) the evidence “still exits 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. art. 64.03(a)(1). Further,
the convicted person must show by a preponderance of the evidence that
he or she “would not have been convicted if exculpatory results had been
obtained through DNA testing,” and that “the request for proposed DNA
testing is not made to unreasonably delay the execution of sentence or
administration of justice.” Tex. Code Crim. Proc. art. 64.03(a)(2).
On appeal, a trial court’s decision regarding DNA testing is
reviewed using a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59
(Tex. Crim. App. 2002). Almost total deference is afforded “a trial court’s
determination of issues of historical fact and application-of-law-to-fact
issues that turn on credibility and demeanor.” Id. All “other application
of law-to-fact issues” are considered de novo. Id.
18
II. Appellant’s motion lacked the required specificity
necessary to prove compliance with Chapter 64’s
requirements.
Article 64.01 provides preliminary requirements that must be
satisfied for each item a convicted person seeks to test. Tex. Code Crim.
Proc. art. 64.01(a)–(b). An “item” is not the entirety of a physical object,
however, but specific, identifiable portions of the object which are or
contain “biological material.” See Routier v. State, 273 S.W.3d 241, 248
(Tex. Crim. App. 2008). “Biological material” is, in turn, defined by
statute. Tex. Code Crim. Proc. art. 64.01(a)(1)–(2). Thus, a convicted
person is required to specify the locations that he or she seeks to test of
an item that is not per se biological material.
Then, the convicted person must specify whether each item, down
to the specific location, has been previously tested. Tex. Code Crim. Proc.
art. 64.01(b)(1)–(2). For those items that have not, there is no further
burden under Article 64.01, but for those items that have, the convicted
person must prove that “newer testing techniques” would likely provide
“more accurate and probative” results than those obtained from the prior
tests. Tex. Code Crim. Proc. art. 64.01(b)(1)–(2).
19
Appellant, in his Chapter 64 motion, sought to test a minimum of
thirty-three items (some singularly listed items were actually multiple
items; for example, “[c]arbon copies of checks”). 2.CR(DNA).115–17
(emphasis added). But, Despite this large testing request, Appellant
attempted to satisfy Article 64.01 by stating, simply, that there were
some “items that have never been subjected to DNA testing” while other
items were “tested in 1998 [but] can also be subjected to . . . considerably
more advanced and sensitive DNA techniques.” 2.CR(DNA).91–92. In
this, Appellant failed to demonstrate which items had been tested and
which had not, he did not specify the regions to be tested on items that
were not per se biological material, and he did not specify the DNA
testing techniques that would provide more accurate and probative
results on those items already tested.
Moreover, it was unclear exactly what Appellant sought to test.
Appellant referred to an attachment accompanying his Chapter 64
motion as the “complete list of evidence” he wanted tested.
2.CR(DNA).115–17. However, he mentioned items not found in this
“complete list” in the body of his Chapter 64 motion; for example, he
asked to test items related to the extraneous offenses used at punishment
20
in his Chapter 64 motion but these items were not in the “complete list.”
Compare 2.CR(DNA).77, with 2.CR(DNA).115–17.
Only months later did Appellant discuss the various types of DNA
testing currently available in his expert’s, Deanna Lankford’s, affidavit.
3.CR(DNA).245–47. But, even then, Appellant only explained that such
DNA testing might be helpful. For example, Appellant discussed the
possibility of using mitochondrial testing, though he did not discuss its
suitability with respect to any particular item. 3.CR(DNA).247. Rather,
he established that mitochondrial testing is a “newer . . . technique,” but
he did not discuss whether it was likely to result in more accurate and
probative results, he still did not specify which items had been tested and
which had not, nor did he specify the locales to be tested on each item.
And, with this affidavit came more ambiguity about what, exactly,
Appellant wanted to test. The expert mentioned several items to possibly
be tested. 3.CR(DNA).250–53.11 But some of these items were then-being
DNA tested pursuant to an agreement of the parties. Compare
11 Belt, blue pants, white t-shirt, condom, hairs, nametag, fingerprints, napkin,
pen, checks, and biological samples from Stites’s body
21
2.CR(DNA).144–48, with 3.CR(DNA).250–53.12 And several items
mentioned in the Chapter 64 motion and attachment were not discussed
by the expert.
Then, at the hearing, Appellant introduced more confusion about
what he wanted to test (though, it clarified his true intent—unreasonable
delay). Appellant’s first witness, John Paolucci, discussed testing a
plethora of items. 2.RR(DNA).30–53. For the first time ever, Appellant
specified regions to be tested on several items included in his Chapter 64
motion. 2.RR(DNA).30–39, 41.13 Appellant also requested testing on
items he had never previously mentioned either in his Chapter 64 motion
on in his expert’s affidavit with specificity. 2.RR(DNA).34–37, 39, 41–42,
44, 46, 50, 53–55.14 Still yet, Appellant asked for preliminary testing on
items he never before listed—with one exception—to determine if they
12 Vaginal, rectal, and breast swabs; four specific hairs; and a cutting from the
panties.
13 Blue pants (cuffs, waistband, button opening, and button); panties
(waistband); bra (clasp); and a white t-shirt (collar).
14 Socks (heel and cuff); left shoe (heel and laces); right shoe (heel and laces);
HEB-branded shirt (collar, cuffs, armpits); pieces of a green cup; brown planner; beer
cans (lip); hair from brown planner; victim’s hand bags; extracts from condom; and
extracts from beer cans.
22
contained biological material. 2.RR(DNA).45–47, 49–50, 52.15 And then
Appellant, maybe, abandoned (or not) testing on several other items,
some previously listed and some not. 2.RR(DNA).40, 42, 44–45.16
Appellant’s second witness, Deanna Lankford, like Paolucci,
discussed potentially testing a number of items. 3.RR(DNA).106–24.
She, too, discussed testing certain regions of items that Appellant had
discussed only at the item-level in his Chapter 64 motion, though she
specified more areas than Paolucci did. 3.RR(DNA).106–10.17 And she,
too, mentioned items not contained in Appellant’s Chapter 64 motion or
specific in her prior affidavit, though she did not mention preliminary
tests on some of these items like Paolucci did and she, again, mentioned
additional areas to be tested on certain items. 3.RR(DNA).110–11, 115–
17.18 Lankford also testified about items for which she only suggested
15 White flakes; two tape lifts from Stites; paper napkin (requested in Chapter 64
motion); green blanket; driver’s seat tape lifts; and white paper sheet.
16 Back brace (not previously requested); bridal receipt (previously requested);
knee brace (not previously requested); and maybe automatic teller and Walmart
receipts (“skipping over paper items,” which were previously requested).
17 Blue pants (crotch, zipper, button, waistband, and cuffs); and panties (crotch
and waistband).
18 Socks; left shoe; right shoe; HEB-branded shirt; pieces of a green cup; brown
planner; white flakes; two tape lifts from Stites; beer cans (lip and crush ridges);
victim’s hand bags; and unspecified extracts.
23
preliminary testing to determine if biological material existed.
3.RR.(DNA).119.19 Finally, there were many items that Paolucci
discussed that Lankford did not, or at least with specificity.20 The State
objected to the items not specified in Appellant’s Chapter 64 motion. E.g.,
2.RR(DNA).31.
On appeal, it is still not entirely clear what Appellant wants to test.
Does Appellant no longer want to test specific areas of items that only
Lankford mentioned but Paolucci did not?21 Does Appellant wish to
forego testing on items mentioned by Paolucci or Lankford but not
discussed on appeal?22 Does Appellant abandon those items listed in his
motion but not discussed at the hearing or on appeal?23
On top of that ambiguity, Appellant still has not specified which
items have been tested and which have not and what type of testing he
19 White paper sheet; and driver’s side tape lifts.
20 Back brace; bridal receipt; knee brace; green blanket; hair from brown planner;
extracts from condom; and extracts from beer cans.
21 Blue pants (crotch and zipper); and panties (crotch).
22 Back brace; bridal receipt; knee brace; white flakes; tape lifts from Stites;
paper napkin; green blanket; driver’s seat tape lifts; white paper sheet; and biological
samples from Stites’s body.
23 Carbon copies of checks; gas emergency book; automated teller receipt;
Walmart receipt; business card; plastic bag; blue rope; brown rope; piece of a shirt;
and piece of a knife.
24
would perform on each previously tested item. As Lankford admitted at
the hearing, for example, mitochondrial testing cannot prove identity.
3.RR(DNA).162. Are mitochondrial results, therefore, more probative
than the results of testing previously run on the beer cans in 2001?
Because Appellant has never provided the specificity needed to make
such determinations, the answers to such questions are not found in this
record.24
Appellant’s hodgepodge testing request, ever changing and still not
clear, is reason to affirm the trial court’s denial of his Chapter 64 motion.
In Dinkins v. State, like here, the convicted person requested testing of
certain items in his Chapter 64 motion and then requested more items at
the hearing on the motion. 84 S.W.3d 639, 640–41 (Tex. Crim. App.
2002). This Court affirmed the denial of Dinkins’s Chapter 64 motion, in
part, because the Court was “not entirely clear as to what evidence
[Dinkins] wants tested.” Id. at 642. This was because Dinkins “never
24 To prevent the problem that Appellant created here—a moving target of items
that he wished to test—the Court should adopt the same rule utilized in motions for
new trial. Namely, a new-trial movant cannot amend his motion for new trial at a
hearing on the same if the State objects. See Clarke v. State, 270 S.W.3d 573, 580–
81 (Tex. Crim. App. 2008). The State, in Appellant’s case, repeatedly objected to
testing of items raised for the first time at the hearing and, so, the trial court’s
decision should be affirmed as to those dilatorily raised items.
25
explained the discrepancy between his original motion and [his expert’s]
report.” Id. The “discrepancy” in Dinkins pales in comparison with the
one present here and, as such, the Court should affirm the decision
denying Appellant DNA testing.
Additionally, like in Dinkins, Appellant only made “general
statements about the type of DNA testing that was available at the time
of . . . trial [and] he failed to specifically address the issue of whether at
the time of . . . trial the type of DNA testing necessary to test [those items
already tested] was capable of providing probative results.” Id. at 642.
Swabs from Stites’s vaginal and rectal cavities and her breasts, a stain
from the crotch of her panties, stains from her pants, a stain from her
back brace, several hairs, and swabs from the beer cans were all tested
at the time of trial, 49.RR.92–93; 54.RR.44; Reed IV, 271 S.W.3d at 713–
14, and the beer cans were re-tested as part of Appellant’s second state
habeas proceeding, Reed IV, 271 S.W.3d at 738–39, but Appellant has not
provided specific analysis with any of these previously tested items, just
the “general statements” that were found to be insufficient in Dinkins.
Thus, the Court should affirm trial court’s ruling on these items (which
Appellant may or may not still want to test).
26
III. The trial court was correct in finding that Appellant did not
meet his burden of proving that he would not have been
convicted with exculpatory test results.
Appellant attacks the trial court’s decision that he did not prove, by
a preponderance of the evidence, that he would not have been convicted
presuming exculpatory results on the items he sought to test. Appellant’s
Br. 41–60. Appellant’s arguments fall into two broad categories.
Appellant’s first and primary contention is that the trial court
should have considered post-trial evidence in making its Article
64.03(a)(2)(A) finding. Appellant’s Br. 44–52. Appellant has provided
the Court with the should-have-been-considered post-trial evidence in
two appendix volumes. App’x 5, 21–22. In a footnote, Appellant argues
that this Court may consider the appended evidence “under the doctrine
of judicial notice.” Appellant’s Br. 48 n.22.
Second, Appellant asserts that the trial court used an
impermissibly narrow construction of the term “exculpatory” in making
its probabilistic determination of whether Appellant would have been
found guilty armed with the results of new testing. Appellant’s Br. 53–
60. Instead, Appellant argues that the appropriate exculpatory
presumption under Article 64.03(a)(2)(A) is that the DNA of a third party,
27
known offender would be found on the items the convicted person seeks
to test. Appellant’s Br. 52–60. Appellant’s complaints are without merit
and the trial court’s decision should be upheld.
A. Appellant’s lack of specificity worked to his detriment.
As noted above, a convicted person must prove by a preponderance
of the evidence that he or she would not have been convicted assuming
exculpatory results on the items sought to be tested. Tex. Code Crim.
Proc. art. 64.03(a)(2)(A). It is clear that the convicted person bears the
evidentiary burden on this point. See, e.g., Wilson v. State, 185 S.W.3d
481, 484 (Tex. Crim. App. 2006). Moreover, courts cannot “consider post-
trial evidence when deciding” this issue. Holberg v. State, 425 S.W.3d
282, 285 (Tex. Crim. App. 2014).
Initially, Appellant’s lack of clarity hampers his ability to show that
the trial court erred. He faults the trial court’s oral ruling for containing
“no findings of fact [and] no relevant evidence,” Appellant’s Br. 41, but
Appellant’s lack of specificity as to which items to test and how each item
fits into the larger evidentiary picture looms over his case even today. As
demonstrated above, see supra Argument II, the State is still not sure
what Appellant wants to test. It is hard to fault the trial court’s ruling
28
that Appellant failed in his burden of proof when Appellant did not even
clearly articulate which items the trial court was supposed to apply the
presumed-exculpatory-result standard. Because he did not make clear
precisely what items were to factor into the Article 64.03(a)(2)(A) test,
Appellant cannot demonstrate error in the trial court’s ruling.
B. The trial court properly eschewed Appellant’s request
to consider post-trial evidence and such evidence is not
properly before this Court.
As to Appellant’s failure-to-consider-post-trial-evidence complaint,
Holberg demonstrates that Appellant is clearly wrong and that the trial
court was clearly right to not consider such evidence. In rejecting the
same type of tactic Appellant uses, the Court held:
Thus, despite the influx of newly asserted post-trial factual
developments that the appellant calls upon us to consider, our
review is limited to discerning whether, and to what extent,
exculpatory results from . . . DNA testing would alter the
landscape if added to the mix of evidence that was available
at the time of trial.
Holberg, 425 S.W.3d at 285. Holberg is absolutely dispositive of
Appellant’s point of error and the trial court did not err by failing to
consider Appellant’s post-trial evidence.
In addition, much of the evidence Appellant now relies upon he
failed to provide to the trial court despite the fact Appellant’s request for
29
a live hearing was granted, something which the trial court was not
required to do. See Whitaker v. State, 160 S.W.3d 5, 8–9 (Tex. Crim. App.
2004) (“Nothing in Chapter 64 requires the trial court to conduct a
hearing, regardless of whether the State attaches affidavits to its
response”). Thus, Appellant has forfeited his right for this evidence to be
considered, independent of Holberg, because he did not introduce it at the
evidentiary hearing on his Chapter 64 motion. Cf. Mays v. State, 285
S.W.3d 884, 889 (Tex. Crim. App. 2009) (“In order to preserve error
regarding a trial court’s decision to exclude evidence, the complaining
party must . . . make[] an ‘offer of proof’ which sets forth the substance of
the proffered evidence.”). Thus, the trial court did not err in its Article
64.03(a)(2)(A) ruling with evidence that Appellant did not even attempt
to introduce at the Chapter 64 hearing.
Additionally, this Court should not consider the appended, post-
trial evidence, separate from Holberg and Appellant’s forfeiture of the
issue, because “[g]eneral considerations governing appellate review apply
here.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).
First, “[a]n appellate court may not consider factual assertions that are
outside the record, and a party cannot circumvent this prohibition by
30
submitting an affidavit for the first time on appeal.” Id. (footnotes
omitted). Second, “an appellate court’s review of the record itself is
generally limited to the evidence before the trial court at the time of the
trial court’s ruling.” Id. (footnote omitted). Both considerations apply
here and both counsel against Appellant’s attempt to unmoor the trial
court’s ruling from the record before it.
Appellant’s pursuit to thwart these well-worn rules finds no home
in Routier, despite Appellant’s argument to the contrary. Rather, Routier
stands for the unremarkable proposition that trial courts, in engaging in
probabilistic determinations about how either new or additional evidence
would have affected a trial if such evidence had been presented at trial,
must, necessarily, consider the facts of the trial. See Routier, 273 S.W.3d
at 244 n.2 (“However, in its order denying appellant’s motion for post-
conviction DNA testing, the convicting court did indicate it had
considered ‘the evidence adduced at trial[.]’” (alteration in original)).
Nothing in Routier remotely stands for the proposition that, in making
an Article 64.03(a)(2)(A) determination, that post-trial evidence can be
considered. Even if it did, Holberg’s more recent vintage and its express,
directly-on-point holding means Holberg controls. Thus, Appellant’s
31
attack on the trial court’s ruling for not having considered post-trial
evidence fails.
C. The trial court applied the proper exculpatory-result
presumption.
As to Appellant’s incorrect-exculpatory-presumption argument,
that, too, fails. In one of the Court’s most recent Chapter 64 opinions, the
Court defined “‘exculpatory results’ to mean only results ‘excluding [the
convicted person] as the donor of this material.’” State v. Swearingen,
424 S.W.3d 32, 38 (Tex. Crim. App. 2014) (alteration in original)
(emphasis added) (quoting Blacklock v. State, 235 S.W.3d 231, 232 (Tex.
Crim. App. 2007)). While Appellant suggests that cases like Blacklock
and Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009), support his
third-party-presumption argument, they actually undermine it.
In Blacklock, the Chapter 64 movant had been convicted of
aggravated robbery and aggravated sexual assault. 235 S.W.3d at 232.
He sought to test vaginal smears from the victim and semen left on the
victim’s pants and panties during the attack. Id. This Court reversed a
court of appeals, noting that the record established that the “victim’s lone
attacker is the donor of the material for which [the] appellant seeks DNA
testing.” Id. (emphasis added). Thus, if DNA testing “exclud[ed] [the]
32
appellant as the donor of th[e] [semen],” it would have establish his
innocence. Id. This firmly stands for the proposition that trial courts are
only to presume that the results of testing would “exclud[e]” the convicted
person, not include someone else.
In Esparza, the underlying crime was an aggravated sexual
assault. 282 S.W.3d at 914–17. The convicted person sought to test a
rape kit, including vaginal and oral swabs and a fabric cutting. Id. at
918. In reversing the court of appeals, this Court held that it was
improper for the court of appeals to assume “the presence of a third
party’s DNA” in deciding whether the convicted person would not have
been convicted presuming exculpatory results. Id. at 921. Instead,
because it was undisputed that the victim’s “attacker deposited semen or
seminal fluid inside [the victim] during the assault,” id., a convicted
person in a “sexual assault case[]” can prove innocence if the DNA from
a rape kit is presumed to not to be his. Id. at 922. Esparza, which relied
heavily on Blacklock, supports the proposition that the proper
exculpatory result is simply that the convicted person’s DNA would not
be found on the items he or she desired to test. See also Ex parte
Gutierrez, 337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (“The burden
33
under Article 64.03(a)(2)(A) 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.” (emphasis added)).
Moreover, it is clear that the trial court was prohibited from
assuming that any item would bear the DNA of a known offender. This
was recently rejected in Swearingen, where the Court stated:
A requirement to assume that the results of testing were
not only from someone other than the convicted person but
that the other person was a repeat offender (or as the appellee
argued before this court, a repeat offender with a similar
modus operandi), makes it hard to imagine a case in which we
would not grant DNA testing. Such compelling DNA results
would certainly overcome any mountain of inculpatory
evidence. We believe that had the legislature meant to so
drastically lower the barrier for Chapter 64 testing, they
would have said so explicitly. The statute requires only that
the results be run through CODIS. It does not set a standard
for exculpatory results.
424 S.W.3d at 39. As such, the trial court was correct in not applying the
presumption of a CODIS-matched DNA result in determining whether
Appellant would have been convicted when factoring in exculpatory test
results.
Applying the proper exculpatory presumption—that Appellant’s
DNA would not be found on a particular item—it is clear that the trial
34
court did not err. However, this Court should find that Appellant has
forfeited the issue on appeal, at least as to how an exculpatory result on
any particular item would factor into the trial evidentiary mix. While
attempting to demonstrate error in how the trial court came to the
conclusion that Appellant did not prove that he would have likely been
convicted presuming exculpatory results, he does not actually discuss
why the trial court’s decision is erroneous with respect to any particular
item he (maybe) seeks to test. Put another way, Appellant does not
describe how the absence of his DNA on each item he (maybe) seeks to
test would prove that he would likely not have been convicted considering
only the evidence at trial.
Appellant’s primary substantive argument (instead of process-
based argument) in challenging the adverse Article 64.03(a)(2)(A) finding
is this—had the trial court presumed “an alternative known
suspect . . . on the evidence [Appellant] seeks to test (i.e., the belt used to
strangle Ms. Stites, the victim’s name tag, her clothing, fingernail
scrapings, and other evidence very likely handled by her killer),” it could
only have concluded that Appellant would not have been found guilty.
Appellant’s Br. 57–58. But this cursory briefing is hardly an item-by-
35
item analysis of how each item fits into the evidence at trial. As such,
the State respectfully requests that the Court find this issue forfeited on
appeal for inadequate briefing. See Lucio v. State, 351 S.W.3d 878, 896–
97 (Tex. Crim. App. 2011) (finding that the failure to provide record
citations in relation to the applicable legal authority was inadequate
briefing). Nevertheless, the State alternatively addresses the evidence
Appellant at least mentions in his brief to demonstrate the correctness of
the trial court’s Article 64.03(a)(2)(A) finding.
D. Appellant failed to prove by a preponderance of the
evidence that he would not have been convicted armed
with exculpatory test results.
1. Items found on Stites
Concerning the pants, the jury heard that there were two saliva
stains on them, which had DQ Alpha alleles 1.2 and 4. 49.RR.112. The
jury knew that Stites had DQ Alpha alleles of 1.2 and 4, 49.RR.101, and
that Appellant’s DQ Alpha alleles were 1.2 and 3, 49.RR.118.
Consequently, the jury knew Appellant’s DNA was not found on Stites’s
pants and they nevertheless convicted him. Thus, he does not prove by a
preponderance that the jury would not have convicted him given that
they already knew his DNA was not found on Stites’s pants.
36
As to the panties, the jury learned that DQ Alpha alleles of 1.2 and
3 and D1S80 alleles of 22 and 24 were discovered in them. 49.RR.110.
The jury knew Appellant’s DQ Alpha alleles were 1.2 and 3 and his
D1S80 alleles were 22 and 24. 49.RR.118–19. Thus, Appellant matched
the male fraction found in the panties at these alleles. If Appellant was
not found in the panties, however, the jury would still have known that
his DNA was on Stites’s breasts, 49.RR.111, in her vaginal cavity,
49.RR.104, and in her rectal cavity, 49.RR.107. Thus, Appellant does not
demonstrate that he would not have been convicted had his DNA been
“only” in and on Stites’s body, instead of in her panties.
Similarly, had the jury known that Appellant’s DNA was not on the
socks, shoes, and bra, they still would have convicted Appellant.
Contrary to Appellant’s witnesses’ opinions at the Chapter 64 hearing,
the jury heard testimony that there was no evidence to indicate Stites
had been dragged to her resting place. 44.RR.153. Accordingly, the jury’s
result would not have been any different had they known Appellant’s
DNA was not on these items of clothing, but “only” inside and on Stites’s
body.
37
The lack of Appellant’s DNA on Stites’s nametag also would not
prove he would not have been convicted. The jury knew the nametag was
tested for fingerprints, 47.RR.30, but that Appellant’s fingerprints were
not on it, 47.RR.42. As such, the jury knew that Appellant was not linked
with the item, yet still they convicted him. Again, Appellant does not
show that if his DNA was not on this item that he would have avoided
conviction.
Finally, regarding the hand bags, there was testimony that no
evidence was collected from Stites’s fingernails because “[t]hey were so
short that it was impossible to even try to clip anything, much less try to
scrape anything from underneath them.” 44.RR.163. And there was no
testimony that Stites fought her attacker. As such, the jury would not
blink if Appellant’s DNA was not found underneath Stites’s nails, which,
according to Appellant, could possibly be found in the bags around her
hands. See Ex parte Gutierrez, 337 S.W.3d at 900–01 (finding no
reasonable probability of not being convicted because there was “no
evidence to suggest that the [victim] was able to hit or scratch her
murderers with her fingernails as they attacked her”).
38
2. Items found near Stites
Jurors heard that Stites borrowed the white t-shirt from Fennell.
45.RR.108. And jurors heard that both the white t-shirt and the belt
fragment were subjected to fingerprint analysis but that Appellant’s
fingerprints were on neither item. 47.RR.43–44, 49. Again, the jury’s
decision would not have been affected by not finding Appellant’s DNA on
either item.
Regarding the beer cans and their extracts, the jury heard the cans
were collected off the side of the road, 45.RR.25, and that it was not
uncommon to find such items on country roads, 45.RR.45. Assuming that
Appellant’s DNA is not on these items does not prove by a preponderance
that he would have not been convicted.
3. Item discovered by a citizen
At trial, all that was revealed about the condom was that “someone”
turned it into the sheriff’s office. 52.RR.134–35. The condom, however,
“appeared to be old and cracked and worn out . . . hav[ing] been out in
the woods for some time,” 52.RR.142, and there was no information
regarding when the condom was given to authorities, 52.RR.143. Trial
counsel mentioned the condom in closing, saying it was found “[n]ot right
there, down the way, but in the general area.” 56.RR.110. That a condom,
39
with no seeming connection to the crime, would not have Appellant’s
DNA on it does not prove by a preponderance of the evidence that he
would not have been convicted.
4. Items found in or near the truck
Fennell testified that his truck was “just in disarray” because he
had “thrown [his] baseball stuff” in the truck the night before Stites’s
murder, a practice which he called “normal.” 45.RR.98. Fennell was a
little league baseball coach and had coached his team and transported a
little leaguer in his truck the evening before Stites’s murder. 45.RR.78–
79, 97. Thus, the jury would not be surprised to not find Appellant’s DNA
but someone else’s on any of the items found in or near Fennell’s truck.
Moreover, the jury heard that several items found inside or near
the truck—a gas emergency book, various receipts, lighter, Big Red gum
pack, paper napkin, pen—and the truck itself were examined for
fingerprints, 47.RR.32–35, 39–42, but that Appellant’s fingerprints were
not discovered on the items, 47.RR.43, and that he did not match
fingerprints that were developed on the truck, 47.RR.28. The jury’s
decision would not be affected had they had also known that Appellant’s
DNA was not in the truck. And, the jury’s verdict would not be any
40
different if Appellant’s DNA was not found on any of these items but still
found on and inside Stites’s physically- and sexually-abused body. Cf.
Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (“The presence
of another person’s DNA at the crime scene will not, without more,
constitute affirmative evidence of [the convicted person’s] innocence.”).
5. Items presently in the possession of the Bastrop
District Clerk
As explained more fully below, see infra Argument V, many of the
items Appellant (maybe) wants to test have been handled by numerous
individuals—attorneys, court personnel, and jurors—without gloves at
Appellant’s capital murder trial and they were stored commingled and
without protective packaging in the Bastrop District Clerk’s Office.25
4.RR(DNA).178–183, 194, 199–200. Assuming for the sake of argument
that Appellant is right that touching these items ungloved would leave
the handler’s DNA behind, finding another person’s DNA on these items
would not demonstrate by a preponderance of the evidence that
Appellant would not have been convicted. See Swearingen, 424 S.W.3d
25 Assuming that Appellant only wants to test what is listed in his brief, this
would include: blue pants; panties; socks; shoes; bra; nametag; white t-shirt; belt;
earring; HEB-branded shirt; knife with metal cover; pieces of a green cup; and brown
planner.
41
at 38–39 (“Primarily, this is because the victim’s having encountered
another person would not factually exclude the [convicted person] from
having killer her. There are many ways someone else’s DNA could have
ended up in the victim’s fingernails. Such results would not require an
inference that the [convicted person would [have] been acquitted.”).
“In sum, granting DNA testing in this case would ‘merely muddy
the waters.’” Ex parte Gutierrez, 337 S.W.3d at 901. Because Appellant
does no more than that, the Court should affirm the trial court’s Article
64.03(a)(2)(A) decision.
IV. The trial court’s finding of unreasonable delay is amply
supported by the record.
Appellant argues that the trial court’s overall finding that he filed
his Chapter 64 motion to unreasonably delay the execution of his
sentence or the administration of justice is in error. Appellant’s Br. 60–
86. He asserts that Chapter 64 does not impose a filing deadline or
“require a movant to explain why he did not raise a claim earlier.”
Appellant’s Br. 63. Further, Appellant claims that Chapter 64 motions
filed within a month of an execution setting are, presumptively, filed for
the purpose of unreasonable delay but those filed before such a setting
are not. Appellant’s Br. 63–64. Because he falls into the latter camp, his
42
motion was not an unreasonable delay. He also alleges that each
subsidiary fact finding is wrong. Appellant’s Br. 65–86. Contrary to
Appellant’s arguments, the trial court’s umbrella ruling and its
underlying factual findings are all abundantly supported by the record.
A convicted person bears the burden of proving, by a preponderance
of the evidence, that he or she does not seek DNA testing to unreasonably
delay the execution of sentence or the administration of justice. Tex.
Code Crim. Proc. art. 64.03(a)(2)(B). This Court has not elucidated the
factors to be considered in determining unreasonable delay; however,
Judge Hervey’s concurrence in State v. Patrick provides some factors to
consider:
Last minute requests for DNA testing without regard to the
promptness of the request, the proximity in time between the
request and execution of sentence, or a determination as to
when the convicted person could have previously requested
DNA testing would pose a hindrance to the Legislative
mandate of Chapter 64 opposing unreasonable delay.
86 S.W.3d 592, 598 (Tex. Crim. App. 2002) (Hervey, J., concurring). The
State believes that additional factors here—the failure to provide time
estimates, prior litigation history, and present litigation tactics—should
also be considered holistically and a finding of unreasonable delay upheld
unless entirely unsupported by the record.
43
This Court has previously indicated that such a determination “is
an application-of-law-to-fact question and is therefore given de novo
review.” Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003).
Nevertheless, the State believes the appropriate standard of review in
this case is “almost total deference” because Appellant placed his
credibility at issue—he averred, in his (belatedly) sworn Chapter 64
motion, that: (1) the motion was brought in good faith; (2) it was brought
as soon as it appeared the federal habeas proceedings “were coming to a
close;” (3) and he could not have brought it any sooner because of
technological- and legislative-changes. 2.CR(DNA).100. At the hearing,
the State introduced evidence, which was admitted without objection,
contesting those (belatedly) sworn averments. Thus, the State
challenged Appellant’s credibility and the more favorable almost-total-
deference standard should apply. See Rivera, 89 S.W.3d at 59.
Regardless of the standard of review, “the trial court’s finding regarding
unreasonable delay is supported by the record” and should be affirmed.
Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005).
44
A. The timing, breadth, and ambiguity of Appellant’s DNA
testing request support the finding of unreasonable
delay.
Appellant has continuously and aggressively challenged his
judgment of conviction since the day he was sentenced to death in 1998.
See supra Statement of Facts I. Against this backdrop, the Legislature
enacted Chapter 64 in 2001, Act of April 5, 2001, 77th Leg., R.S., ch. 2, §
2, 2001 Tex. Sess. Law Serv. Ch. 2 (codified at Tex. Code Crim. Proc. arts.
64.01–64.05), and the last amendment was in 2011, Act of June 17, 2011,
82nd Leg., R.S., ch. 366, § 1–4, 2011 Tex. Sess. Law Serv. Ch. 366
(codified at Tex. Code Crim. Proc. arts. 64.01, 64.035, 64.04). Appellant
never sought DNA testing after it became statutorily available, that is,
until he lost his federal habeas appeal in the Fifth Circuit.
2.CR(DNA).106–13. Even then, it was only an informal request.
2.CR(DNA).106–13. The State agreed to test some of the items Appellant
requested. 2.CR(DNA).144–48.
In the interim, the State moved for an execution date.
1.CR(DNA).34–35. On the day the trial court first set Appellant’s
execution date, Appellant filed his Chapter 64 motion and asked for a
significant number of items to be tested, including items beyond what
45
was in his informal request. 2.CR(DNA).77, 115–17. Months later he
supplemented (or amended) that large request with more items.
3.CR(DNA).250–53. A month after that—at the Chapter 64 hearing—he
added (or amended) his request with even more items. 2.RR(DNA).30–
53, 106–24. See also supra Argument II. Given Appellant’s Chapter 64
litigation, it was not improper for the trial court to find unreasonable
delay.
1. Time between Appellant’s request and his
execution date
It is appropriate to consider the time between “proximity in time
between the request and execution of sentence.” Patrick, 86 S.W.3d at
598. Inherent in such a consideration is the nature of the request—a
request to test a single item using one DNA testing technique a month
away from an execution date will obviously be seen as more reasonable
than requesting a large and nebulous amount of items using an
unspecified variety of DNA testing techniques in that same time frame.
Here, at the hearing setting an execution date, the State sought a
date six months out to accommodate the agreed-to DNA testing of three
types of swabs, four hairs, and a fabric cutting. Appellant’s Chapter 64
request dwarfed the agreed-to DNA testing, which was thought to need
46
about six months for completion. Despite the fact that the State provided
a timeline for that testing, 1.RR(DNA).14, and despite the fact that
Appellant previously proposed to enter into a DNA-testing scheduling
order, 1.CR(DNA).48, Appellant now chastises the trial court for having
considered his failure to provide an estimated timeline for DNA testing.
Appellant’s Br. 65–66. While Appellant is correct that Chapter 64 does
not require that a convicted person propose an estimated completion date
for DNA testing, Appellant’s Br. 65, it also does not define unreasonable
delay, see Tex. Code Crim. Proc. art. 64.03(a)(2)(B), meaning that it is not
improper for a trial court to take into account the timing and breadth of
the requested testing. Here, it was absolutely proper for the trial court
to believe that Appellant’s massive and ever-changing request, seemingly
prompted by the loss in the Fifth Circuit and filed on the same day as the
hearing on the State’s motion to set an execution date, was intended to
unreasonably delay the execution of sentence or administration of justice.
2. Promptness of the request and previous
opportunities to request testing
It is also proper to consider the “promptness of the request . . . [and]
when the convicted person could have previously requested DNA
testing.” Patrick, 86 S.W.3d at 598. Chapter 64 had been in existence
47
for more than thirteen years and its last amendment was effective almost
three years before Appellant filed his Chapter 64 motion. Such a delay
should be considered presumptively unreasonable. See Thacker, 177
S.W.3d at 927 (“Appellant waited over four years to file his motion, and
that motion was filed less than a month before his scheduled execution.”
(emphasis added)).
Moreover, the evidence before the trial court showed that one of
Appellant’s attorneys, on behalf of another death row inmate, filed a
Chapter 64 motion substantially similar and, in some places verbatim, to
Appellant’s a year-and-a-half before Appellant’s filing.
7.RR(DNA).RX14. Notably, this filing contained an expert’s affidavit and
an affidavit from the convicted person whereas, in Appellant’s case, these
items did not come for months. Compare 7.RR(DNA).RX14, with
3.CR(DNA).233–34, 317–18. And the same attorney, on behalf of the
same death row inmate, filed a second Chapter 64 motion two months
before Appellant’s. 9.RR(DNA).RX15. Thus, it was entirely appropriate
to find that Appellant had the legal expertise necessary to file his
Chapter 64 motion much sooner than he did.
48
Further, this Court held long ago that the pendency of federal
habeas proceedings did not prevent a convicted person from seeking
Chapter 64 relief on account of the “two-forums” rule. See Thacker, 177
S.W.3d at 927. As such, it was entirely appropriate for the trial court to
find that Appellant’s federal habeas proceeding was not an impediment
to his seeking testing under Chapter 64.
To this, Appellant argues that the trial court did not take into
account the State’s “foot-dragging” and his prior request for DNA testing.
Appellant’s Br. 67–70. However, the evidence of the State’s supposed
dilatoriness was not before the trial court—Appellant relies on his
attorney’s affidavit filed in opposition to the State’s motion to accelerate
this appeal. Appellant’s Br. 21–23. Thus, it cannot be a basis for
undermining the trial court’s decision and it should not be considered on
appeal. See Whitehead, 130 S.W.3d at 872.
Further, Appellant’s argument also ignores that requesting DNA
testing in an almost twenty-year-old crime would naturally have
attendant delay, especially when needing to locate and document
evidence from four law enforcement agencies, a medical examiner’s office,
a crime lab, and a clerk’s office in a case that had been closed for almost
49
sixteen years. Even assuming that Appellant’s argument can be
considered on appeal, the “foot-dragging” did not prevent Appellant from
filing a protective Chapter 64 motion which he could have withdrawn had
it been rendered moot by an agreement. Cf. Pace v. DiGuglielmo, 544
U.S. 408, 416 (2005) (noting that a state inmate may file a “‘protective’
petition” in federal court to ensure compliance with timeliness
standards). Accordingly, Appellant’s latter-day blame shifting is no
excuse for his more-than-a-decade-delayed filing. And Appellant’s last-
minute attempt to shift blame for his dilatoriness to the State should be
recognized by this Court and taken into account. See Rosales v. State,
748 S.W.2d 451, 456 (Tex. Crim. App. 1987) (noting that, in the
indigence-on-appeal context, the hiring of an appellate lawyer can be
considered in deciding whether the appellant is indigent).
Appellant also appears to suggest that the State’s requests for
extensions of time in another proceeding somehow undermine the trial
court’s decision. Appellant’s Br. 16–17. Neither the argument nor the
evidence was provided to the trial court and should not be considered on
appeal. See Whitehead, 130 S.W.3d at 872. But, even considering this
forfeited issue, there was only one 10-day extension in the Fifth Circuit
50
and two 30-day extensions in the Supreme Court after Appellant
informally requested DNA testing, assuming that is the appropriate
request measure. An additional 70 days in two different proceedings
pales in comparison with Appellant’s thirteen- or almost-three-year delay
following the enactment of Chapter 64 or its latest amendment.
As to his prior, non-Chapter 64 DNA testing motion, the trial court
faulted him for failing to file despite availability under Chapter 64,
3.CR(DNA).344, and, as Appellant admits, his non-Chapter 64 DNA
testing motion was filed before Chapter 64’s enactment, Appellant’s Br.
7. This demonstrates no error in the trial court’s findings. Moreover,
Appellant dubbed his Chapter 64 motion as his “first request for post-
conviction DNA testing.” 2.CR(DNA).100. He can hardly fault the trial
court for not mentioning a motion he seemingly forgot about.
Appellant also argues that prior versions of Chapter 64 were “legal
impediments” to his filing for DNA testing until the 2011 amendments
defining “biological material.” Appellant’s Br. 70–76. If this were
51
actually true, it is news to Henry Skinner26 and Larry Swearingen,27 who
filed Chapter 64 motions both before and after certain amendments to
Chapter 64. Moreover, this Court confirmed that the amendments to
term “biological material” did not result in the sea change Appellant
suggests. See Swearingen, 424 S.W.3d at 37 (“The recent amendments
have not fixed this problem in most cases. No part of the amendments
addresses a method for determining the existence of biological
material.”). Assuming arguendo the truth of Appellant’s impediment
argument, however, it still does not explain why Appellant waited almost
three years after the Legislature defined “biological material” to file his
Chapter 64 motion. Appellant clearly was dilatory in his request for DNA
testing and the trial court’s finding of unreasonable delay should be
upheld.
26 Skinner v. State, No. AP-76675, 2012 WL 2343616 (Tex. Crim. App. June 20,
2012); Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009); Skinner v. State, 122
S.W.3d 808 (Tex. Crim. App. 2003).
27 State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014); Swearingen v.
State, 303 S.W.3d 728 (Tex. Crim. App. 2010); Swearingen v. State, 189 S.W.3d 779
(Tex. Crim. App. 2006)
52
B. Appellant’s overall litigation history left little doubt
that his Chapter 64 motion was filed for purposes of
unreasonable delay
It is also not error for a trial court to consider the entirety of a
convicted person’s litigation history to determine his present intent.
Multiple courts, including this one, have found that Appellant has
engaged in fragmented and dilatory litigation. See 10.RR(DNA).RX16,
at 11 (“Moreover, [Appellant’s] motion is untimely. . . . [Appellant] fails
to provide this court with any explanation as to why he waited until
[more than two years after filing his final federal habeas petition] . . . to
request additional testing of evidence.”); id. at 12 (“The same concerns
this court has about [Appellant’s] untimely motion for additional testing
of evidence applies to his extraordinary delay in proffering Bayardo’s
affidavit.”); 10.RR(DNA).RX17, at 17 n.17 (“[W]e find that even had the
district court not considered Dr. Bayardo’s affidavit, it would have acted
within its discretion because the affidavit was untimely. [Appellant] has
provided no persuasive reason for waiting to well over a decade to revisit
Dr. Bayardo’s testimony.”); Reed V, 2009 WL 97260, at *1 (describing
Appellant’s as “[t]aking a piecemeal approach”).
53
Moreover, Appellant, multiple times and as early as almost eight
months before the trial court entered its findings, stated he was going to
file additional postconviction litigation, but never did—at least not before
he filed his notice of appeal—despite providing the trial court with a
proposed filing deadline.28 1.CR(DNA).47; 1.RR(DNA).10 (“We will be
filing within 30 days.”).
Further, Appellant waited months to provide the trial court with an
expert’s affidavit or his own, despite a statutory requirement to submit
the latter. See Tex. Code Crim. Proc. art. 64.01(a–1). This delay occurred
despite evidence that Appellant’s counsel knew of the personal-affidavit
requirement a year-and-a-half earlier. Compare 7.RR(DNA).RX14, with
3.CR(DNA).317–18. In addition, Appellant’s winding and nebulous DNA
testing request, described in detail above, should be considered here, too.
See supra Section II. The record clearly supports that Appellant’s
Chapter 64 motion is part and parcel with Appellant’s prior dilatory
litigation.
28 As Appellant notes, he filed his seventh state habeas application on February
13, 2015. Appellant’s Br. 80 n.32. This is about six months after Appellant promised
to file it. This would be another appropriate situation for the Court to take notice of
in deciding the correctness of the trial court’s decision. See Rosales, 748 S.W.2d at
456.
54
Appellant argues that the trial court should not have taken his
litigation history into account in determining unreasonable delay
because, essentially, he thinks it is irrelevant. Appellant’s Br. 76–86.
But, an individual’s prior actions can be used for a variety of purposes,
including proving intent, plan or habit. See, e.g., Tex. R. Evid. 404(b),
406. Thus, because Appellant shouldered the burden of proof to establish
no unreasonable delay of his execution or administration of justice, his
litigation history became relevant as it would in any case of establishing
diligence. The trial court’s decision finding unreasonable delay was well-
supported by the record and should be upheld on appeal.
V. Appellant failed to prove chain of custody for items housed
by the Bastrop District Clerk.
A convicted person must prove that the items he or she seeks to test
have “been subjected to a chain of custody sufficient to establish that [the
items have] not been substituted, tampered with, replaced, or altered in
any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). In
short, a convicted person “is not entitled to DNA testing unless he first
shows that unaltered evidence available for testing.” Prible v. State, 245
S.W.3d 466, 467 (Tex. Crim. App. 2008) (emphasis added). Appellant
55
failed in his proof, at least with respect to items housed by the Bastrop
District Clerk.
A postconviction investigator testified at Appellant’s Chapter 64
hearing that all of the items in possession of the Bastrop District Clerk
are stored comingled and without protective covering.29 4.RR(DNA)178–
83. As a certified peace officer with a background in collection of
evidence, 4.RR(DNA).183–84, the postconviction investigator testified
that he believed that the storage of these items allowed for
contamination, were materially altered, and were tampered with,
4.RR(DNA).185–86.
A deputy clerk testified that several other exhibits—seemingly the
paper goods Appellant (maybe) no longer wants to test—were stored in
the same manner as the other exhibits—together and without
prophylactic measure. 4.RR(DNA).193–94.
Finally, the lead trial prosecutor in Appellant’s case testified that,
once the items introduced at trial were handled without gloves by
29 The items in possession of the Bastrop District Clerk are found in Appellant’s
Exhibit 2. 5.RR(DNA).DX2. Appellant (maybe) requests testing of the following
items in that official’s possession: blue pants; panties; socks; shoes; bra; nametag;
white t-shirt; belt; earring; HEB-branded shirt; knife with metal cover; pieces of a
green cup; and brown planner.
56
attorneys, court personnel, and jurors, in accord with the standards of
that time. 4.RR(DNA).198–201.
Paolucci, on cross-examination, conceded that there is “a good
chance [that the evidence in possession of the Bastrop District Clerk is]
contaminated evidence.” 2.RR(DNA).72. And Lankford testified that the
comingled storage was “not ideal,” with the possibility that each item has
the DNA of more than a dozen people on it. 3.RR(DNA).149–52. She also
conceded that, hypothetically, if someone opened the sealed packaging of
evidence in a DNA laboratory and then touched the item ungloved, that
would prove “you’ve tampered with our evidence.” 3.RR(DNA).155.
The evidence before the trial court, and Appellant’s witnesses’
concessions, readily establish that the items in the possession of the
Bastrop District Clerk’s Office have been “tampered with” or “altered in
any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii); see
Pate v. State, No. 10-09-00360-CR, 2011 WL 652920, at *1 (Tex. App.—
Waco Feb. 23, 2011, pet. ref’d) (“The items in question were trial exhibits,
and therefore, handled by numerous persons during the trial.”); Riggins
v. State, No. 11-03-00307-CR, 2004 WL 743742, at *1 (Tex. App.—
Eastland Apr. 8, 2004, no. pet.) (agreeing that evidence stored without
57
temperature controls by a district clerk was insufficient to prove an
adequate chain of custody).
In arguing otherwise, Appellant ignores “tampered with” or
“altered in any material respect.” Appellant’s Br. 86–89. But his
witnesses conceded this point. While it can be said with certainty where
these items are housed, that is not all that is required as the statutory
definition reflects. Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). And,
while these items might still be “in a condition making DNA testing
possible,” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), which was the
primary thrust of Appellant’s witnesses’ testimony, that is a different
requirement than chain of custody, Tex. Code Crim. Proc. art.
64.03(a)(1)(A)(ii). Appellant did not prove that requirement here and the
trial court’s decision should be affirmed on such basis with respect to
those items in the possession of the Bastrop District Clerk.
VI. Appellant did not prove biological material on the non-per
se items he sought to test.
Under Chapter 64, DNA testing is only permitted for evidence
“containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1).
The meaning of this statute is clear—this Court has “explicitly held that
[a convicted person] must prove biological material exists and not that it
58
is merely probable.” Swearingen, 424 S.W.3d at 38. Appellant failed in
this endeavor.
Appellant tried to prove biological material existed on a variety of
items—because of Appellant’s lack of clarity, however, the State is still
unsure exactly what he seeks to test—but ultimately failed to do so.30
Paolucci conceded that he had not physically examined the evidence and
had no personal knowledge as to how Stites was murdered.
2.RR(DNA).64–65. And he conceded that there was no way to know if
there was biological material on any of these items unless DNA testing
was performed on them. 2.RR.(DNA).67. Further, Paolucci admitted
that “you can’t say for sure where—where these items were touched.”
2.RR(DNA).75.
Lankford, too, conceded that “the only way to know for sure [if there
is biological material] is to test the[ item] and obtain a DNA profile.”
2.RR(DNA).143. Indeed, she stated that “I couldn’t testify to there being
a biological stain, for instance, on an item of clothing without testing it.”
30 Assuming that Appellant currently only seeks to test those items addressed on
appeal, the non-per se biological material items are: blue pants (in the areas he seeks
to test); panties (in the areas he seeks to test); socks; shoes; bra; nametag; hand bags;
white t-shirt; belt; beer cans; condom; pen; earring; HEB-branded shirt; knife with
metal cover; pieces of green cup; brown planner; lighter; box cutter; and Big Red gum
pack.
59
2.RR(DNA).148. And, like Paolucci, Lankford could not say where any
particular item had been handled such that skins cells might have been
deposited. 2.RR(DNA)148–49, 169.
With respect to the non-per se physical items in this case, Appellant
did not prove there was biological material in any particular location.
Even if the Court assumes that “touch” DNA will be deposited from every
contact with human skin, all of Appellant’s witnesses conceded that they
could not prove where any particular item had been so manipulated. As
such, this case is no different than Swearingen, where a convicted
person’s expert said it was likely that certain items had skin cells on
them. See Swearingen, 424 S.W.3d at 37–38. But that is not enough.
Further, there was trial testimony that on many of the items
Appellant requests to be tested there were “no stains of evidentiary value
on them.” 49.RR.89–93.31 And nothing was collected from underneath
Stites’s fingernails because they were too short, so Appellant cannot
prove biological material on the hand bags either. 44.RR.163. The trial
31 This includes the: white T-shirt; white flakes; bra; paper napkin; white paper
sheet; knee brace; and HEB-branded shirt. 49.RR.89–90.
60
court’s decision should be affirmed, at least with respect to the non-per
se biological material items, on this basis too.
VII. The State re-urges its motion to accelerate this appeal.
On January 27, 2015, the State moved this Court to accelerate
Appellant’s appeal. State’s Motion for Accelerated Appeal, Reed v. State,
No. AP-77,054 (Tex. Crim. App. Jan. 27, 2015). As apparent from the
arguments above, Appellant has engaged in piecemeal and dilatory
litigation tactics and it is clear that Appellant’s Chapter 64 motion and
the attendant appeal have been filed to unreasonably delay the execution
of his sentence and the administration of justice. As such, the State
respectfully re-urges the motion to accelerate for purposes of this Court’s
decisional process. Appellant should not be allowed to delay his presently
scheduled execution date.
61
PRAYER FOR RELIEF
The State respectfully requests that the Court affirm the trial
court’s decision denying Appellant’s request for DNA testing pursuant to
Chapter 64.
Respectfully submitted,
BRYAN GOERTZ
Criminal District Attorney
Bastrop County, Texas
/s/ Matthew Ottoway
MATTHEW OTTOWAY
Assistant Criminal District Attorney/
Assistant Attorney General
Texas Bar No. 24047707
Post Office Box 12548, Capitol Station
Austin, Texas 78711
Tel.: (512) 936-1400
Fax: (512) 320-8132
Email: matthew.ottoway@texasattorney
general.gov
Attorneys for the State
62
WORD-LIMIT CERTIFICATE OF COMPLIANCE
This brief complies with Rule 9.4(i)(2)(A) of the Texas Rules of
Appellate Procedure. It contains 12,125 words, Microsoft Word 2013,
Century Schoolbook, 14 points.
/s/ Matthew Ottoway
MATTHEW OTTOWAY
Assistant Criminal District Attorney/
Assistant Attorney General
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing
pleading was served by placing same in the United States mail, postage
prepaid, on this the 23rd day of February, 2015, addressed and
electronically sent to:
Bryce Benjet Mark S. Chehi
40 Worth Street, Suite 701 Robert A. Weber
New York, New York, 10013 Jason M. Liberi
bbenjet@innocenceproject.org Nicole A. DiSalvo
Andrew G. Mirsis
Andrew F. MacRae SKADDEN, ARPS, SLATE, MEAGHER &
LEVATINO PACE LLP FLOM LLP
1101 S. Capital of Texas Hwy. One Rodney Square, P.O. Box 636
Building K, Suite 125 Wilmington, Delaware 19899
Austin, Texas 78746 mchehi@skadden.com
amacrae@levatinopace.com robert.weber@skadden.com
/s/ Matthew Ottoway
MATTHEW OTTOWAY
Assistant Criminal District Attorney/
Assistant Attorney General
63