Jerry Randal Rangel v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00263-CR
JERRY RANDAL RANGEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 06-03010-CRF-361
MEMORANDUM OPINION
Appellant Jerry Randal Rangel challenges two orders, both issued the same day,
which denied motions seeking forensic testing and retesting of certain items of evidence
admitted during the jury trial that resulted in his conviction for aggravated sexual assault
of a minor. See generally TEX. CODE CRIM. PROC. ANN. art. 64.01 (allowing motion for such
testing); Rangel v. State, No. 10-07-00247-CR, 2009 WL 540780 (Tex. App.—Waco Mar. 4,
2009, pet. ref’d) (mem. op., not designated for publication) (affirming conviction); Rangel
v. Davis, No. H-18-2208, 2019 WL 2716551 (S.D. Tex. 2019) (dismissing petition for habeas
relief filed under 28 U.S.C. § 2254). Also before the Court is Rangel’s pending motion to
amend the record on appeal. 1 We will affirm the trial court’s orders and deny the motion.
Background
Rangel was indicted for aggravated sexual assault in 2006. The case proceeded to
trial, and the jury heard testimony that the thirteen-month-old victim’s grandmother had
arrived home and found the victim naked, unconscious, and bleeding. She also testified
that she found Rangel—at the time staying in the apartment a few nights a week—asleep
in the same room with his belt unbuckled and his pants wet. After a nearby hospital
suspected critical injury, the victim was flown to a larger hospital, which diagnosed her
with multiple injuries, including widespread bruising, multiple skull fractures, a
fractured femur, and vaginal lacerations.
The jury also heard testimony that a diaper found by investigators the day of the
assault (State’s Exhibit 63) contained biological material matching the DNA profiles of
both Rangel and the victim, while a diaper found the day after the assault (State’s Exhibit
61) produced biological samples matching only the victim’s DNA profile. There was also
1The record filed in this cause did not include everything before the trial court at the time it ruled on the
Chapter 64 motions. Thus, on our own motion, we ordered that the record from the direct appeal, No. 10-
07-00247-CR, be added to the record in this cause. See TEX. R. APP. P. 34.5(c)(1) (allowing appellate court to
order supplementation of record); Rangel v. State, No. 10-21-00263-CR (Tex. App.—Waco Nov. 8, 2021,
order). The parties did not object.
Rangel v. State Page 2
testimony regarding additional evidence gathered the day after the assault: detectives
recovered two swabs of blood “splatter” found on and near the bedroom wall (State’s
Exhibit 60) and a birthday card (Bryan Police item 20) near the bed that a local police
detective testified was “not presumptive for blood.” The jury found Rangel guilty and
the trial court assessed its punishment at life in the penitentiary. On direct appeal, this
Court affirmed the conviction and sentence, see generally 2009 WL 540780, and the Court
of Criminal Appeals refused Rangel’s petition for discretionary review. The state and
federal courts denied habeas relief.
On November 6, 2019, Rangel filed his first motion for forensic testing and
supporting affidavit, requesting testing of the birthday card and two swabs taken from
the wall and birthday card. On May 24, 2021, with no ruling on his earlier motion, Rangel
filed a motion for forensic retesting and supporting affidavit, arguing that State’s Exhibit
63—the diaper with biological material consistent with the DNA profiles of Rangel and
the victim—should be retested. He subsequently sought mandamus relief from this
Court, asking that we order the trial court to rule on his motions; we denied that petition.
The trial court then denied both motions, and Rangel sought timely appeal. See TEX. CODE
CRIM. PROC. ANN. art. 64.05 (governing appeals from motions for forensic testing); TEX.
R. APP. PROC. 25.2(a)(2) (exempting Chapter 64 appeals from certification requirement).
Rangel v. State Page 3
Amendment of Record
We begin with Rangel’s motion to amend the record on appeal. Rule 34.5 allows
parties to identify inaccuracies in the record and requires the appellate court to take steps
to correct those defects. See TEX. R. APP. P. 34.5(d). Rangel’s motion complains that our
opinion disposing of his direct appeal “fail[ed] to accurately disclose evidence admitted
during trial” by stating that DNA from biological material on one of the diapers matched
the profiles of both the victim and to Rangel. See 2009 WL 540780, at *6. Our mandate in
that cause issued on July 30, 2009, and we have no jurisdiction to revisit our opinion. And
to the extent Rangel complains of the trial court’s inclusion of language from our earlier
opinion in the orders presently before this Court, we have no authority to strike that
language from the orders. See Tex. R. App. P. 34.5(a)(5) (requiring inclusion of judgment
or order challenged on appeal). We therefore deny his motion.
Chapter 64 Motions
Chapter 64 of the Code of Criminal Procedure affords a mechanism by which a
convicted individual may seek forensic testing or retesting of evidence that may contain
biological material if that evidence remains in the possession of the State. See TEX. CODE
CRIM. PROC. ANN. art. 64.01(a-1). Chapter 64 requires a trial court to order forensic testing
if the movant establishes by a preponderance of the evidence that “a reasonable
probability exists that the person would not have been prosecuted or convicted if
exculpatory results had been obtained through DNA testing.” Carter v. State, 134 S.W.3d
Rangel v. State Page 4
484, 485 (Tex. App.—Waco 2004, no pet.) (citing TEX. CODE CRIM. PROC. ANN.
64.03(a)(2)(A)). The movant must also establish that: (1) evidence still exists which can
be subjected to DNA testing; (2) the evidence has been subjected to a chain of custody
sufficient to establish it has not been tampered with; (3) identity was or is an issue in the
case; and (4) the request for DNA testing “is not made to unreasonably delay the
execution of sentence or administration of justice.” See id. at 485–86 (citing and quoting
TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)–(2)).
To obtain retesting of evidence previously subject to forensic testing, the movant
must establish each of the above and that the evidence:
(A) 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; or
(B) was tested:
(i) at a laboratory that ceased conducting DNA testing
after an audit by the Texas Forensic Science
Commission revealed the laboratory engaged in faulty
testing practices; and
(ii) during the period identified in the audit as involving
faulty testing practices.
TEX. CODE CRIM. PROC. ANN. art. 64.01(b)(2). If the movant establishes these elements by
a preponderance of the evidence, the trial court must order the testing. See id. art.
64.03(a)(2).
Rangel v. State Page 5
“When reviewing a judge’s ruling on a [c]hapter 64 motion, we use the familiar
bifurcated standard of review articulated in Guzman v. State: we give almost total
deference to the judge's resolution of historical fact issues supported by the record and
applications-of-law-to-fact issues turning on witness credibility and demeanor.” Reed v.
State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017) (citing Guzman v. State, 955 S.W.2d 85,
89 (Tex. Crim. App. 1997)). “But we review de novo all other application-of-law-to-fact
questions.” Id. at 769. “Under this standard, we review de novo ‘the ultimate question
of whether a reasonable probability exists that exculpatory DNA tests would prove
innocence.’” Carter, 134 S.W.3d at 486 (quoting Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim.
App. 2002)). When reviewing a Chapter 64 motion, we must affirm based on any theory
supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)
(general rule); see also Scott v. State, No. 14-08-01060-CR, 2010 WL 1236320, at *1 n.2 (Tex.
App.—Houston [1st Dist.] Apr. 1, 2010, pet. ref’d) (mem. op., not designated for
publication) (in context of denial of Chapter 64 motion).
Rangel predicates his first motion, which requests testing of a birthday card and
two swabs, 2 on a theory that “David Cruz assaulted the victim and the evidence
2It is unclear from the record how much testing was done on the swabs and the birthday card. If we assume
arguendo that some or all of these materials were subject to forensic testing before or during trial, Rangel’s
motion and appeal would fail for the reasons stated here and independently because he has not identified
any faults in that testing or any new techniques. See TEX. CODE CRIM. PROC. ANN. art. 64.01(b)(2)(B) and
our discussion infra.
Rangel v. State Page 6
discovered the next day was manufactured by the victim’s family.” 3 He argues that the
evidence he has identified for testing was “fabricated” “by someone with intimate
knowledge of the facts of the offense” and that if this evidence “contain[s] the victim[‘]s
blood/DNA, [the result] amounts to exculpatory information that was not presented to
the jury.”
We do not find Rangel’s arguments persuasive. First, even if the trial court were
to order the testing requested in the first motion, and even if that testing were to reveal
the victim’s DNA profile on any of the tested items, Rangel would not have identified
any exculpatory information. As the trial court pointed out in its denial of the motion,
the identity of the victim is not an issue in this case. And even if testing were to reveal
genetic material consistent with the DNA profile of someone other than Rangel—a theory
Rangel presented in both motions and in his briefs on appeal—that information would
potentially implicate another individual but would not alone exonerate Rangel in part
because the evidence that he was the perpetrator was overwhelming. The jury reviewed
evidence that Rangel was found in the floor passed out or asleep near the victim, that
Rangel’s pants were unbuckled, that the crotch of the pants was wet, that Rangel had
indulged in both alcohol and cocaine the night of the offense, that Rangel was a registered
3 According to testimony presented at trial, Cruz is a family friend who would sometimes stay overnight
in the household and would sometimes babysit the victim. Koehler testified that testing an “apparent pubic
hair” found in the diaper from the rape kit resulted in a genetic profile “consistent with” the DNA profile
of Cruz and “eliminated” Rangel as the donor.
Rangel v. State Page 7
sex offender at the time of the offense, and that a DNA profile in biological material
obtained from one of the diapers is consistent with Rangel’s DNA profile. Moreover, the
jury heard and rejected Rangel’s theory that Cruz committed the crime. Thus, Rangel did
not meet his burden at the trial court to show that testing of these items would result in
evidence that, if presented to the jury, he “would not have been convicted.” See TEX.
CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). Rangel therefore has not met his burden on
appeal, and we overrule his challenge to the trial court’s order denying his first motion.
We reject Rangel’s challenge to the trial court’s order denying his second motion
for similar reasons. First, we must emphasize that Rangel’s second motion is a motion
for retesting—or “statistical recalculation” of the resulting DNA profiles—already subject
to testing: material on a diaper (State’s Exhibit 63) that included biological material
matching the DNA profiles of both Rangel and the victim. Accordingly, because he seeks
retesting, Rangel must identify newer techniques that might result in “more accurate”
testing results or must show that the original testing was performed by a laboratory using
faulty techniques. See id. art. 64.01(b)(2)(B). Other than a conclusory statement that
“[t]esting methods used at the time have now been called into question,” Rangel has not
identified any testing technique that might result in more accurate results and has not
identified any purportedly questionable practices used by the laboratory that conducted
the testing on State’s Exhibit 63, and our sister courts have held that statistical
recalculation is not a testing technique for the purpose of Chapter 64 retesting motions.
Rangel v. State Page 8
See In re Rice, Nos. 03-19-00745-CR, 03-19-00746-CR, 2020 WL 5507269, at *5 (Tex. App.—
Austin Sep. 11, 2020, pet. ref’d); Loveday v. State, Nos. 09-16-00452, -00460, -00461-CR, 2017
WL 5179954, at *3 (Tex. App.—Beaumont Nov. 8, 2017, no pet.) (mem. op., not designated
for publication). Moreover, even if Rangel had done so, his second motion would
independently fail for the same reason as the first: he has not shown how any new
information obtained would have exonerated him or otherwise prevented his conviction
if presented to a jury. Because Rangel did not meet his burden before the trial court and
has not met his burden on appeal, we overrule his challenge to the trial court’s disposition
of Rangel’s second Chapter 64 motion.
Appointment of Counsel
Chapter 64 generally requires the appointment of counsel to represent an indigent
movant where the movant “informs the court that [he or she] wishes to submit a motion
under this Chapter, [and] the court finds reasonable grounds for a motion to be filed.”
See id. art. 64.01(c); Gray v. State, 69 S.W.3d 835, 837 (Tex. App.—Waco 2002, no pet.).
However, “[e]ven if the convicting court determines that a convicted person is indigent,
the court is not required to appoint counsel if it finds there are no reasonable grounds for
the motion to be filed.” In re Marshall, 577 S.W.3d 581, 583 (Tex. App.—Houston [14th
Dist. 2019, orig. proceeding) (citing In re Ludwig, 162 S.W.3d 454, 454 (Tex. App.—Waco
2005, orig. proceeding)). “Such a finding is reviewed under an abuse-of-discretion
Rangel v. State Page 9
standard, either in a mandamus or as part of the appeal of the denial of DNA testing.”
Id. (citing Ludwig, 162 S.W.3d at 455).
In this case, no one disputes that Rangel is indigent or that he made his desire to
file the motions known to the trial court. And while the trial court did not make an
express finding that there are no “reasonable grounds” for a Chapter 64 motion, because
that court denied the appointment of counsel, we must infer that the court found no such
ground. See Dunning v. State, 572 S.W.3d 685, 692 (Tex. Crim. App. 2019) (“When the trial
court does not enter separate findings, we imply findings necessary to support the ruling
so long as they are reasonably supported by the record.” (citing Guzman, 955 S.W.2d at
87)). Further, and as explained above, we agree with the trial court’s implicit finding that
Rangel failed to identify a reasonable ground for a Chapter 64 motion. We therefore
overrule Rangel’s final issue on appeal.
Conclusion
For the reasons stated herein, we deny Rangel’s motion to amend the record on
appeal and affirm the orders of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,*
Justice Johnson, and
Rangel v. State Page 10
Justice Rose 4
*(Chief Justice Gray concurs. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed May 3, 2023
Do not publish
[CRPM]
4 The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002,
75.003.
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