Opinion
NO. 12-17-00111-CR
02-06-2018
COLIN TREMELL BUSSEY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY , TEXAS
MEMORANDUM OPINION
Colin Tremell Bussey appeals the trial court's order denying his motion for DNA testing. In two issues, Appellant argues that the trial court abused its discretion when it denied his motion for DNA testing and did not sufficiently address his complaint in his writ of habeas corpus that he received ineffective assistance of counsel. We affirm in part and dismiss for want of jurisdiction in part.
BACKGROUND
In the early morning hours of May 5, 2001, Appellant and James Harbert Woods borrowed a vehicle from Melinda Warren and drove to a grocery store in Lufkin, Texas to commit a robbery. The two men saw a woman exit her car near the grocery store and forced her back into the car. Woods entered the victim's car and drove her to an apartment building while Appellant led the way in Warren's vehicle. Once there, Appellant entered the back seat of the victim's car and the two men transported the victim to a remote area of Lake Sam Rayburn where Woods sexually assaulted her and shot her in the neck. Thereafter, Appellant and Woods threw the victim from a bridge into the lake and absconded with the victim's purse, clothing, and automobile. The victim survived.
The State charged Appellant with aggravated robbery and aggravated sexual assault. Appellant pleaded "guilty" as charged, and the trial court sentenced him to imprisonment for twenty years for each offense.
In April 2002, more than thirty days after the trial court's judgment, Appellant appealed his conviction. The Beaumont court of appeals dismissed Appellant's appeal for want of jurisdiction. In 2004, Appellant requested DNA testing. The trial court denied Appellant's request. In 2005, Appellant again requested DNA testing. The trial court appointed counsel to represent Appellant, but subsequently denied Appellant's request. In 2010, Appellant filed an application for a writ of habeas corpus, which was denied.
In 2016, Appellant sought DNA testing. The trial court denied Appellant's request. In so doing, the trial court made eight findings of fact in its order, two of which set forth that (1) no evidence was recovered that could be tested for Appellant's DNA and (2) Appellant failed to demonstrate that he would not have been convicted if exculpatory results had been obtained through DNA testing because his conviction for aggravated sexual assault was based on the law of parties. This appeal followed.
DNA TESTING
In his first issue, Appellant argues that the trial court abused its discretion when it denied his motion for DNA testing. Standard of Review and Applicable Law
In reviewing a trial court's denial of a motion for DNA testing, we utilize a bifurcated standard of review. See Whitaker v . State , 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We give "almost total deference" to the trial court's findings of historical fact and application of law to fact issues that turn on witness credibility and demeanor, but consider de novo all other application of law to fact questions. See Ex Parte Gutierrez , 337 S.W.3d 883, 890 (Tex. Crim. App. 2011).
A convicted person may move for DNA testing of evidence containing biological material that was in the State's possession during trial (1) if that evidence was not previously subjected to DNA testing or (2) if it was previously tested, but 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. TEX. CODE CRIM. PROC. ANN. art. 64.01(b) (West Supp. 2017). To be entitled to the testing, the convicted person must also show that (1) the evidence is available for testing, (2) it has been subjected to a sufficient chain of custody to establish that it has not been altered in any material way, (3) identity was or is an issue in the case, and (4) by a preponderance of the evidence, he would not have been convicted if exculpatory results had been obtained through DNA testing and that the request is not made to unreasonably delay the execution of sentence or administration of justice. See id ., art. 64.03(a) (West Supp. 2017); see also Whitaker , 160 S.W.3d at 8. A convicted person who pleaded "guilty" or "nolo contendere" or who made a confession or similar admission in the case may submit a motion for DNA testing, and the trial court may not deny the motion solely on the basis of that plea, confession, or admission. See TEX. CODE CRIM. PROC. ANN. art. 64.03(b).
"The identity requirement in Chapter 64 relates to the issue of identity as it pertains to the DNA evidence." Prible v. State , 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). To be entitled to the testing, the convicted person must demonstrate that the DNA testing would determine the identity of the perpetrator or would exculpate the accused. Id.
Exculpatory evidence is that "tending to establish a criminal defendant's innocence." Watkins v. State , 155 S.W.3d 631, 634 (Tex. App.-Texarkana 2005, no pet.). A convicted person does not satisfy his burden if the DNA evidence would "merely muddy the waters." Id. DNA testing must outweigh all other evidence of the convicted person's guilt. Id.; see also Hood v . State , 158 S.W.3d 480, 483 (Tex. Crim. App. 2005) (holding that even if DNA testing showed presence of another person at crime scene, defendant failed to establish by preponderance of the evidence that he would have been acquitted on that basis given other evidence of the defendant's involvement in the crime). Discussion
The trial court denied Appellant's motion for DNA testing because (1) no evidence was recovered that could be tested for Appellant's DNA and (2) Appellant failed to demonstrate that he would not have been convicted if exculpatory results had been obtained through DNA testing because Appellant's conviction for aggravated sexual assault was based on the law of parties. Based on our review of the record, we agree.
The victim did not allege that Appellant sexually assaulted her. Thus, the State necessarily would have relied on the law of parties to prove Appellant's guilt. Indeed, the evidence attached to the trial court's findings indicates that the State was prepared to seek a conviction against Appellant as a party to the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). And based on the evidence recounted by the victim and Appellant's statement to police, it is reasonable to conclude that a jury would have found that Appellant was responsible for Woods's conduct because there was ample evidence that Appellant acted with the intent to promote or assist the commission of the offense and encouraged, aided, or attempted to aid Woods to commit the offense. See id . Accordingly, we hold that the trial court did not abuse its discretion by denying Appellant's motion for DNA testing. Appellant's first issue is overruled.
WRIT OF HABEAS CORPUS
In his second issue, Appellant contends that the trial court did not sufficiently address his complaint in his writ of habeas corpus that he received ineffective assistance of counsel.
The only proper means of collaterally attacking a final felony conviction is by a petition for writ of habeas corpus under Texas Code of Criminal Procedure, article 11.07. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5 (West 2005) ("After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner"). This court has no jurisdiction over complaints that may be raised only by postconviction habeas corpus proceedings brought under Article 11.07. See id ., arts. 11.05, 11.07 (West 2005). Only the convicting court and the court of criminal appeals have any role to play in attempts to raise postconviction challenges to final felony convictions. In re McAfee , 53 S.W.3d 715, 717 (Tex. App.-Houston [1st Dist.] 2001, orig. proceeding). Accordingly, we lack jurisdiction to consider Appellant's second issue.
DISPOSITION
We have determined that we lack jurisdiction to consider Appellant's second issue. Accordingly, we dismiss for want of jurisdiction the portion of Appellant's appeal concerning the trial court's failure to address his complaint concerning ineffective assistance of counsel. Having overruled Appellant's first issue, we affirm the trial court's order denying Appellant's motion for DNA testing.
BRIAN HOYLE
Justice Opinion delivered February 6, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 159th District Court of Angelina County, Texas (Tr.Ct.No. 22,235)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that the portion of Appellant's appeal concerning the trial court's failure to address his complaint concerning ineffective assistance of counsel should be dismissed for want of jurisdiction. It is further the opinion of this court that there was no error in the trial court's order denying Appellant's motion for DNA testing.
It is therefore ORDERED, ADJUDGED and DECREED that the portion of Appellant's appeal concerning the trial court's failure to address his complaint concerning ineffective assistance of counsel is dismissed for want of jurisdiction and the order denying Appellant's motion for DNA testing of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.