Opinion
No. 01-08-00144-CR
Opinion Issued February 19, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.4.
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 876384.
Panel consists of Judges JENNINGS, HANKS, and BLAND.
MEMORANDUM OPINION
William Harris filed a motion for rehearing. We grant rehearing and withdraw our opinion and judgment of December 18, 2008, and issue the following in their stead. Our disposition of the case remains unchanged. Harris appeals from the trial court's denial of his motion for post-conviction forensic DNA testing under Chapter 64 of the Code of Criminal Procedure. See TEX. CODE. CRIM. PROC. ANN. art. 64.01-.05 (Vernon 2006 Supp. 2008). We affirm the trial court's order.
Background
In September 2002, a jury found Harris guilty of murdering his wife by strangulation and sentenced him to sixty-five years' confinement and a $10,000.00 fine. The Sixth Court of Appeals of Texas affirmed Harris's conviction in 2004. After his conviction, Harris twice moved for post-conviction DNA testing in the trial court, which denied the motions. It is from the second denial that Harris appeals. We summarize the facts of the underlying case from the Sixth Court of Appeals opinion in Harris's appeal of his conviction. See Harris v. State, 133 S.W.3d 760 (Tex.App.-Texarkana 2004, pet. ref'd). In March 2001, Wenona Harris lived in an apartment complex in Texas City with her young son Jyron. Wenona was married to Harris, but had filed for a divorce, due to be final a week after her death. On March 4, police discovered a body, later identified as Wenona Harris, behind a dumpster in north Houston. Police later arrested William Harris for Wenona's murder, caused by strangulation. Three witnesses testified that they had seen William Harris at Wenona's apartment complex on March 3. The first, a neighbor, saw Harris leaving Wenona's apartment and moments later saw him being shown around the complex by a leasing agent. Between 2:30 and 3:00 p.m., two women waiting to pick up a friend at the complex observed an African-American male carrying what appeared to be a large bundle of laundry wrapped inside either sheets or a large comforter. One of the witnesses later identified Harris in a police lineup. As the witnesses watched the man, they observed a human arm fall out of the bundle and saw a body inside the bundle. The witnesses saw the man put the body, which they believed was that of a small African-American or Hispanic woman or child, into a black sport-utility vehicle and push it down so that it could not be seen. While the witnesses watched the vehicle drive away from the complex, they wrote down the vehicle's license plate number. Later, they gave this information to the police, who determined that the sport-utility vehicle was a black Lincoln Navigator registered to William Harris. Additionally, witnesses testified that just weeks before Wenona's murder, Harris had checked himself into the hospital because he said that he had been having homicidal thoughts of killing his wife by strangling her or shooting her with a gun. Wenona's sister testified that Harris had a history of family violence and injuring Wenona, including an incident where Harris choked Wenona until she lost consciousness.Discussion
Harris contends that the trial court erred in denying his motion for post-conviction DNA testing because DNA obtained from the scene belonging to a third party would exculpate Harris. We apply a bifurcated standard of review to a trial court's decision to deny post-conviction DNA testing. Bates v. State, 177 S.W.3d 451, 453 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002)). Accordingly, we afford almost total deference to the trial court's determination of issues of historical fact and its application of the law to fact issues that turn on an evaluation of credibility and demeanor. Id. We review de novo the application-of-law-to-fact issues, including the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Code of Criminal Procedure. Id. A convicted person may move in the trial court for a DNA analysis of evidence containing biological material. TEX. CODE CRIM. PROC. ANN. art. 64.01(a). The motion may request DNA testing only if the evidence was in the possession of the State during the trial of the offense, but(1) was not previously subject to DNA testing
(A) because DNA testing was
(i) not available, or
(ii) available but not technologically capable of providing probative results, or
. . . .
(B)(2) although previously subject to DNA testing, can be tested again 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. Further, article 64.03 of the Code of Criminal Procedure provides, in pertinent part,
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) 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; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.TEX. CODE. CRIM. PROC. ANN. art. 64.03(a). If the trial court concludes that the defendant has met the requirements of Article 64, then the trial court shall order DNA testing. Id. at (c). A convicted person must do more than merely allege that these requirements have been met. Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). Rather, a motion for DNA testing must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact that support the motion. Id.; TEX. CODE CRIM. PROC. ANN. art 64.01(a). Texas Civil Practice and Remedies Code Section 132.001 allows an inmate in the Texas Department of Criminal Justice or in a county jail to make an unsworn declaration in lieu of a written, sworn declaration, as long as it meets the requirements in Section 132.002, which requires that it be in writing and subscribed by the person making the declaration as true under the penalty of perjury, and it be substantially in the form as set out by Section 132.003. TEX. CIV. PRAC. REM. CODE ANN. §§ 132.001-.003 (Vernon 2005); see Owens v. State, 763 S.W.2d 489, 490 (Tex.App.-Dallas 1988, pet. ref'd); Green v. State, 264 S.W.3d 63, 67 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Harris verified the facts set forth in his pro se second motion for DNA testing in an unsworn declaration. However, Harris failed to meet his burden of establishing by a preponderance of the evidence that he would not have been convicted had exculpatory results been obtained in DNA testing. See Dinkins, 84 S.W.3d at 643. As in Dinkins, here the trial court denied Harris's motion based on the fact that Harris failed to meet his burden to show by a preponderance of the evidence that he would not have been convicted if exculpatory DNA results had been obtained. A convicted person must show that a reasonable probability exists that the DNA tests would prove his innocence. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002); Bates v. State, 177 S.W.3d 451, 453 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Harris's affidavit offers the conclusory statement that "the States' Prosecuting Attorney utilized/or gave reference to over 24 exhibits" and that he would not have been convicted if DNA testing had been done on a number of these items of evidence, namely (1) car floor mats, (2) blood from the complainant's carpet, linens and a pillow case, and (3) hair fibers, fingernail scrapings, and vaginal and anal swabs retrieved from the complainant during the investigation. The existence of another person's DNA found in any of these samples would not prove, however, by a preponderance of the evidence, that Harris was wrongly convicted, because it would not exclude Harris as the person who strangled Wenona. The bare assertion that another person's DNA might be found at the crime scene, without more, is not exculpatory evidence sufficient to find that a trial court abused its discretion in ordering DNA testing. See Prible v. State, 245 S.W.3d 466, 470 (Tex. (Tex.Crim.App. 2008) ("without more, the presence of another person's DNA at the crime scene would not constitute affirmative evidence of the appellant's innocence" requiring relief under Chapter 64); Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002) (holding that evidence of another person's DNA, if found on a hair, a cigarette butt and a bath mat with blood stains from the crime scene does not constitute affirmative exculpatory evidence). As in Bell, here Harris "set forth only a bare assertion that the biological samples in question might belong to someone else. This is not enough." Id.