Curtis Mayes, Jr. v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00183-CR
Curtis Mayes, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-09-904090 THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Curtis Mayes, Jr., appeals from the trial court’s denial of his request for post-
conviction DNA testing of a BB gun. Mayes asserts that the State violated his Brady rights by
not testing the gun for DNA and knowingly suppressed the gun, then covered up that suppression
at trial by pulling it out of the evidence bag without using gloves. He contends that his trial
counsel provided ineffective assistance by not objecting to the State’s failure to disclose that the
gun was never tested. We will affirm the denial of the request for a post-conviction test of the
gun for DNA.
BACKGROUND
In December 2009, a jury convicted Curtis Mayes, Jr, of two offenses of robbery
that occurred on February 14, 2009. See Tex. Penal Code § 29.02; see also Mayes v. State,
Nos. 03-10-00101-CR, 03-10-00102-CR, 2011 WL 1005331 (Tex. App.—Austin Mar. 18, 2011,
no pet.) (mem. op., not designated for publication). Both victims testified that their robbers
threatened them with a gun. Mayes, 2011 WL 1005331 at *1-2. When Mayes was arrested
driving a vehicle that matched the description of the vehicle reportedly used in the robberies, a
BB gun that looked like a “real” gun was discovered under the passenger seat. Id. at *3. The
jury was instructed that it could find Mayes guilty as a party to the robberies. The jury found
Mayes not guilty of aggravated robbery but guilty of two counts of robbery. Id. at *4. After
finding an enhancement paragraph true based on Mayes’s plea of true, the jury assessed sentence
at 29 years for each offense, to be served concurrently. Id. On direct appeal, Mayes challenged
the admissibility of his pretrial and in-court identifications by the robbery victims. This Court
affirmed, concluding that the photo lineup for the out-of-court identification by the victims was
not impermissibly suggestive and that the in-court identifications were not corrupted by the
acceptable out-of-court identification procedures. 1 Id. at *4-9.
In January 2021, Mayes filed a motion for forensic DNA testing under Texas
Code of Criminal Procedure Chapter 64. See Tex. Code Crim. Proc. arts. 64.01-.05. In his
affidavit in support of the motion, Mayes asserted that he never actually touched the gun and that
his codefendant or someone else did. He contended that the absence of his DNA from the gun
would be material, that constitutional error resulted from the suppression of favorable evidence,
and that there is a reasonable probability that, had the evidence been disclosed, the result of the
1 Mayes also asserted on appeal that the evidence was factually insufficient to sustain his
convictions, but the Court of Criminal Appeals eliminated factual sufficiency as a valid appellate
challenge in criminal cases after Mayes filed his brief but before the State filed its brief. See
Mayes v. State, Nos. 03-10-00101-CR, 03-10-00102-CR, 2011 WL 1005331, at *9 (Tex. App.—
Austin Mar. 18, 2011, no pet.) (mem. op., not designated for publication) (citing Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (factual sufficiency not available in
criminal appeals.). This Court construed this issue as a challenge to the legal sufficiency of the
evidence and determined that sufficient evidence was presented at trial. Id. at *10.
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proceeding would have been different. In his memorandum in support of his motion, Mayes
asserted that the absence of his DNA from the gun would have made a different result reasonably
probable and that the State’s failure to disclose the absence of his DNA or fingerprints
constituted a Brady violation, citing United States v. Bagley, 473 U.S. 667 (1985) and Brady
v. Maryland, 373 U.S. 83 (1963). He contended that the suppression of the absence of his DNA
on the gun undermined confidence in the trial and that the State’s failure to disclose the evidence
violated the due process clauses of the federal and state constitutions.
The State responded that the gun was admitted as an exhibit and was still being
held at Austin Police Department evidence storage. The investigator testified that the gun was
not DNA tested before trial because it was found in the possession of the suspects. The trial
transcript shows that the gun was handled at the time of its seizure, was physically removed from
an envelope during the trial by the prosecuting attorney, and was handled and examined by a
police officer during a recess in the trial. More than 12 years passed between when the gun was
presented at the trial and Mayes’s request for DNA testing. The State argued that Mayes’s
request did not meet the standards for DNA testing because there was not a reasonable likelihood
that the gun contained biological material suitable for DNA testing. The gun could be swabbed,
but because of the handling of the gun, uncertain chain of custody, and potential contamination
involving transfer DNA during that handling, any testing would not be probative.
The trial court denied Mayes’s motion for forensic DNA testing, finding and
concluding as follows:
1. Article 64.03[(a)](2)(A) of the Texas Code of Criminal Procedure requires the
convicted person to establish by a preponderance of the evidence that “the
person would not have been convicted if exculpatory results had been
obtained through DNA testing.” This means the defendant must demonstrate
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that “a reasonable probability exists that exculpatory DNA tests would prove
their innocence.” Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim.
App. 2002).
2. The lack of Applicant’s DNA on the gun that Applicant requests testing on
would not constitute affirmative evidence of Applicant’s innocence nor would
it create a reasonable likelihood that he would not have been convicted.
3. Applicant’s motion fails to establish that, had exculpatory DNA results been
obtained, there is a reasonable probability that Applicant would not have
been convicted.
4. The requirements of Article 64.03 of the Texas Code of Criminal Procedure
have not been satisfied. See Tex. Code Crim. Proc. art. 64.03(a)(2)(A).
The court certified that Mayes had the right to appeal, and this appeal followed.
POST-CONVICTION DNA TESTING AND THE STANDARD OF REVIEW
Chapter 64 of the Code of Criminal Procedure allows convicted persons to seek
forensic DNA testing of evidence that has a reasonable likelihood of containing biological
material. Tex. Code Crim. Proc. art. 64.01(a-1). The convicting court shall appoint counsel for
an indigent convicted person who requests such appointment if the court finds reasonable
grounds for a motion for DNA testing to be filed. Id. art. 64.01(c).
The court may order forensic DNA testing under Chapter 64 only if the court
finds that the evidence still exists and is in a condition making DNA testing possible and has
been subjected to a chain of custody sufficient to establish that it has not been substituted,
tampered with, replaced, or altered in any material respect. Id. art. 64.03(a)(1)(A). The court
must also find a reasonable likelihood that the evidence contains biological material suitable for
DNA testing and that identity was or is an issue in the case. Id. art. 64.03(a)(1)(B), (C). The
convicted person must establish by a preponderance of evidence that he would not have been
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convicted if exculpatory results had been obtained through DNA testing and that the request for
testing is not made to unreasonably delay execution of sentence or administration of justice. Id.art. 64.03(a)(2). In sum, a defendant is not entitled to DNA testing unless he shows that
unaltered evidence is available for testing and that there is a greater than 50% chance that he
would not have been convicted if DNA testing provided exculpatory results. Prible v. State,
245 S.W.3d 466, 467-68 (Tex. Crim. App. 2008).
Because there were no witnesses at a hearing on this motion and the trial record
and affidavit of the Appellant are the only sources of information supporting the motion, we
review the issues presented to the trial court de novo. See Smith v. State, 165 S.W.3d 361, 363
(Tex. Crim. App. 2005).
DISCUSSION
Mayes presents these three issues on appeal: 2
Issue 1: Did the State violate the appellants Brady rights when it failed to get the
B.B. gun tested before the prosecutor pulled it out of the evidence bag?
Issue 2: Can prosecutors knowingly suppress evidence until trial, and then cover
it up by pulling it out of the evidence bag without using gloves?
Issue 3: Was it ineffective Assistance of Counsel, when the appellant’s lawyer
failed to object to prosecutor’s miscarriage of justice by failing to
disclose to the appellant the fact that the gun was never tested?
2 The issues are quoted from Mayes’s introductory statement of the Issues Presented for
Review. He restated the first issue slightly differently in his argument section, but the difference
is not substantive.
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None of these issues asserts error in the trial court’s findings and conclusions in its order
denying the request for DNA testing. More critically, none of these issues concerns a subject
matter within the scope of the relief available under Chapter 64. 3
Mayes complains of actions and omissions by prosecutors and his counsel but
does not assert or show errors in the trial court’s conduct and resolution of the Chapter 64
motion at issue in this proceeding. Allegations of Brady violations, suppression of evidence,
mishandling of exhibits, and counsel’s failure to object to prosecutor’s failures to disclose the
absence of testing for fingerprints on the gun do not assert any error in the trial court’s
determination that the lack of Mayes’s DNA on the gun would neither constitute affirmative
evidence of Mayes’s innocence nor create a reasonable likelihood that he would not have
been convicted.
A more fundamental flaw in Mayes’s points on appeal is that he strays further
from the permissible scope of this proceeding. Chapter 64 offers a way to obtain forensic DNA
testing of biological evidence that could then be used in another proceeding. Thacker v. State,
177 S.W.3d 926, 927 (Tex. Crim. App. 2005). Chapter 64 does not confer jurisdiction on courts
3 Mayes also requested appointment of counsel on this appeal. Our analysis of Mayes’s
application also supports our denial of his motion for appointment of counsel. An indigent
convicted person must persuade the court that there are “reasonable grounds for a motion to be
filed” to obtain appointed counsel. Tex. Code Crim. Proc. art. 64.01(c); Ex parte Gutierrez,
337 S.W.3d 883, 889 (Tex. Crim. App. 2011). Article 64.01(c), the only provision of Chapter 64
that addresses entitlement to counsel, does not distinguish between the trial and appellate stages
of the proceeding. Watson v. State, No. 07-06-0414-CR, 2006 WL 3327814 (Tex. App.—
Amarillo Nov. 16, 2006, order) (per curiam) (not designated for publication); see Tex. Code
Crim. Proc. art. 64.01(c). Because, as discussed in this opinion, Mayes did not present or
establish reasonable grounds for a motion to be filed, he did not show himself entitled to
appointment of counsel on appeal of the denial of his application for DNA testing. Accordingly,
we deny his motions for appointment of counsel on appeal.
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to consider collateral attacks on the trial court’s judgment or to review, under the guise of a
DNA testing request, anything beyond the scope of the prescribed grounds. See Tex. Code
Crim. Proc. arts. 64.01-.05; In re Garcia, 363 S.W.3d 819, 821-22 (Tex. App.—Austin 2012, no
pet.). Collection of fingerprint evidence is outside the scope of Chapter 64 unless the applicant
seeks to test biological material such as blood or skin cells from the fingerprints. In re Morton,
326 S.W.3d 634, 647 (Tex. App.—Austin 2010, no pet.). The assertion that the prosecutor
withheld evidence in violation of disclosure requirements under Brady, 373 U.S. 83, is likewise
not a request for DNA analysis of biological material. Phillips v. State, No. 05-04-00532-CR,
2005 WL 1819598, at *3 (Tex. App.—Dallas Aug. 3, 2005), (mem. op., not designated for
publication), appeals dism’d, Nos. PD_1552-05, PD-1553-05, 2007 WL 1492056 (Tex. Crim.
App. May 23, 2007) (not designated for publication). The assertion that Mayes’s counsel
rendered ineffective assistance by failing to make an objection is also not within the scope of
the statute permitting DNA analysis of biological material. Garcia, 363 S.W.3d at 821-22. We
lack jurisdiction to address these allegations of attorney acts and omissions in a Chapter 64
proceeding. See id.Even if we read Mayes’s brief broadly as challenging the trial court’s order, the
record supports the trial court’s conclusion that Mayes did not show himself entitled to Chapter
64 testing. Mayes seeks proof through the absence of his DNA on the gun that he did not touch
the gun and therefore did not rob the victims. Mayes’s own allegations about the State’s
handling of the gun call into question whether the absence of his DNA on the gun would prove
that he did not touch it in 2009. DNA analysis is not as probative when the items tested are not
at a place where only a limited number of contributors could be found. Hall v. State, 569 S.W.3d
646, 658 (Tex. Crim. App. 2019). Because epithelial cells are ubiquitous on handled materials
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and there is an uncertain connection between the DNA profile identified from the epithelial cells
and the person who deposited them, the significant possibility of DNA being deposited by an
innocent person reduces the probative value of any exculpatory DNA test result. Id. Other
evidence tied Mayes to the crimes. Both victims said the gun-wielding robber was close enough
to touch them with the gun and both identified Mayes as the person who robbed and threatened
them; “the victims did not express any uncertainty in their identification of Mayes as the
gunman, either while viewing the lineup or in court.” Mayes, 2011 WL 1005331, at *8. Later
on the morning of the robberies, Mayes was driving the vehicle used in the robberies and was
arrested with another defendant who admitted being involved in the robberies. Id. at *10.
Further, the jury was instructed that it could find Mayes guilty as a party to the robberies if,
acting with intent to promote or assisted the commission of the offenses, he solicited,
encouraged, directed, or attempted to aid another person to commit the offenses. Mayes was
driving the vehicle identified as the robbers’ car when arrested with a codefendant who
possessed a lighter like one taken from one of the victims. Id. at *1, *3. During the robberies,
the non-gunman suggested that the gunman “cap” one victim and, while standing by the driver’s
side of the car during the other robbery, urged the gunman, “Come on, come on, hurry up. Let’s
go.” Id. Even if DNA testing proved that Mayes never touched the gun, other evidence would
have supported the jury finding him guilty as a party to the robberies, so the absence of DNA
would not have made a not-guilty finding more likely than not. The trial court did not err by
concluding that Mayes failed to prove that unaltered evidence is available for testing and that
there is a greater than 50% chance that he would not have been convicted if DNA testing of that
evidence provided exculpatory results. See Prible, 245 S.W.3d at 467-68.
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Mayes did not raise errors made by the trial court, did not raise issues on appeal
that are cognizable in a Chapter 64 petition, and did not establish by a greater than 50% chance
that DNA testing of the gun would have caused the jury to find him not guilty.
CONCLUSION
We affirm the trial court’s denial of Mayes’s application for DNA testing under
Chapter 64 of the Texas Code of Criminal Procedure.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Affirmed
Filed: August 2, 2023
Do Not Publish
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