Opinion
06-22-00064-CR
09-22-2022
ROY DEAN BROWN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: September 21, 2022
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 11F0886-102
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Scott E. Stevens Justice
A Bowie County jury convicted Roy Dean Brown of continuous sexual abuse of a child and sexual assault of a child and assessed sentences of fifty years' and twenty years' imprisonment, respectively. This Court upheld Brown's convictions. Brown v. State, No. 06-16-00155-CR, 2017 WL 3081244, at *1, *7 (Tex. App.-Texarkana July 20, 2017, pet. ref'd) (mem. op., not designated for publication). In this appeal, Brown argues that the trial court erred by denying his request for post-conviction DNA testing and for the appointment of counsel. Because we find no error, we affirm the trial court's order.
I. Requirements of Post-Conviction DNA Testing
"To be entitled to post-conviction DNA testing, a convicted person must satisfy the requirements of Chapter 64 of the Code of Criminal Procedure." Hall v. State, 569 S.W.3d 646, 655 (Tex. Crim. App. 2019). Among other requirements, Chapter 64 requires that "the convicted person establishes by a preponderance of the evidence that . . . the person would not have been convicted if exculpatory results had been obtained through DNA testing," Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A), and that the trial court find that "identity was or is an issue in the case," Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(C).
"This means that a convicted person must show a greater than 50% chance that he would not have been convicted if exculpatory results from the requested DNA testing had been available at trial." Hall, 569 S.W.3d at 655. This burden "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." Ex parte Gutierrez, 337 S.W.3d 883, 899 (Tex. Crim. App. 2011). "'Exculpatory results' means only results excluding the convicted person as the donor of the DNA." Hall, 569 S.W.3d at 655-66. Under Chapter 64, the identity requirement "relates to the issue of identity as it pertains to the DNA evidence. Therefore, if DNA testing would not determine the identity of the person who committed the offense or would not exculpate the accused, then the requirement of Article 64.03(a)(2)(A) has not been met." Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). Further, under Chapter 64, appointment of counsel is only required if "the court finds reasonable grounds for a motion to be filed." Tex. Code Crim. Proc. Ann. art. 64.01(c).
II. Standard of Review
In our review of a denial of a Chapter 64 motion, "we give almost total deference to the judge's resolution of historical fact issues supported by the record and application[]-of-law-to-fact issues turning on witness credibility and demeanor." Reed v. State, 541 S.W.3d 759, 768 (Tex. Crim. App. 2017). All other application-of-law-to-fact questions are reviewed de novo. Id. at 768-69.
III. Analysis
In his motion for post-conviction DNA testing, Brown sought re-testing of hair samples and seminal stains from a blue, brown, white, and green comforter (the blue comforter) and from a green, blue, purple, and pink comforter (the green comforter). In his brief, Brown acknowledges that, in its order, the trial court found the following:
This was Brown's second motion for post-conviction DNA testing. His first motion was denied by the trial court but was not timely appealed. See Davis v. State, 502 S.W.3d 803 (Tex. Crim. App. 2016) (per curiam) (order) (if a denial of a motion for post-conviction DNA testing is not timely appealed, the only recourse is to file another motion for DNA testing). As the trial court noted, a motion for post-conviction DNA testing "must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion." Tex. Code Crim. Proc. Ann. art. 64.01(a-1). Although Brown's second motion was not accompanied by a sworn affidavit, because the allegations in the second motion were the same as those in Brown's first motion, the trial court considered the affidavit filed with Brown's first motion for DNA testing. For the same reason, the trial court did not order a second response from the State, but considered the original response filed by the State.
1. The DNA laboratory reports showed that the semen on the green comforter belonged to Brown, and the DNA profile from the epithelial cell fraction taken from the green comforter was consistent with Brown and the victim; 2. A supplemental DNA laboratory report dated July 2, 2012, stated that the DNA profile of the sperm cell fraction taken from the green comforter was consistent with Brown's DNA profile, and concluded to a reasonable degree of scientific certainty that Brown was the source of the profile; 3. An October 15, 2014, supplemental DNA laboratory report determined that the DNA from the epithelial cell fraction taken from the green comforter was consistent with a mixture from Brown and the victim; 4. A June 27, 2016, supplemental DNA laboratory report determined that the DNA from the sperm cell fraction taken from the green comforter was 15 quintillion times more than likely to have come from Brown than from an unrelated, unknown individual; and 5. No semen was found on the blue comforter.
Brown argues that additional DNA testing of the green and blue comforters may show that someone else's DNA was present on them, which, he claims, would undermine the child's testimony that he sexually abused her. However, Brown does not challenge the trial court's findings that the DNA reports showed that his DNA was present in the semen sample taken from the green comforter or that the DNA in the epithelial cells found on the green comforter was consistent with his DNA. Nor does he dispute that the evidence at trial showed that he could not be excluded as a contributor of the DNA found on the victim's bedding. Brown, 2017 WL 3081244, at *3. Since Brown's DNA was found on the green comforter, the presence of someone else's DNA would not cast doubt on the validity of Brown's conviction; rather, the "DNA testing would simply 'muddy the waters.'" Gutierrez, 337 S.W.3d at 892 (quoting Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002)).
In his brief, Brown also characterizes the evidence at trial as showing that the abuse only happened in one room and only on the two comforters. However, the child victim testified that Brown had sexually assaulted her "two to three times a week from the time she was five or six until she was fourteen." Brown, 2017 WL 3081244, at *4. She also testified that the assaults usually happened either in her bedroom or her mother's bedroom but that, on three or more occasions, she had been "forced to perform oral sex on Brown while he was driving." Id. at *4. The evidence at trial also showed that the child victim consistently identified Brown as the person who had sexually abused her over those years in her outcries to her mother, the police, a sexual assault nurse examiner, and a forensic interviewer at the Texarkana Children's Advocacy Center. Id. at *2-3.
Because of the child victim's testimony positively identifying Brown as her abuser, the evidence at trial showing that Brown could not be excluded as a contributor of the DNA on the victim's bedding, and the trial court's unchallenged findings regarding the presence of Brown's DNA on the green comforter, we cannot conclude that the trial court erred in determining that Brown would not be able to meet his burden to show that he would not have been convicted if someone else's DNA had been identified through DNA testing of the comforters. Since additional DNA testing would not exculpate Brown, we find that he did not meet his burden under Article 64.03(a)(2)(A). See Prible, 245 S.W.3d at 470. As a result, we also find that appointment of counsel was not required. We overrule Brown's issues on appeal.
IV. Conclusion
For these reasons, we conclude that the trial court did not err in denying Brown's application for post-conviction DNA testing and request for appointment of counsel. We affirm the trial court's order.