Opinion
NO. 03-19-00046-CR
08-12-2020
In re Samuel Adkins
FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-13-904105 , THE HONORABLE TAMARA NEEDLES, JUDGE PRESIDING MEMORANDUM OPINION
Samuel Adkins appeals the trial court's order, which denied both his post-conviction motion for DNA testing and his motion for the appointment of counsel to assist him with his testing request. See Tex. Code Crim. Proc. arts. 64.01-.05 (Chapter 64). In three issues, Adkins contends that the trial court erred by denying his motion to test or re-test some of the exhibits from his trial and to test "other physical evidence collected as part of a rape kit" and by denying his motion for appointment of counsel. We affirm.
BACKGROUND
During Adkins's trial for aggravated sexual assault, evidence was presented that he forcibly penetrated the victim's vagina with his finger. In the early morning hours of July 30, 2012, Adkins drove his victim, an acquaintance, to an undeveloped and isolated area in southwest Austin and physically and sexually assaulted her. Adkins v. State, No. 03-14-00285-CR, 2017 WL 474058, at *1 (Tex. App.—Austin Feb. 2, 2017, pet. ref'd) (mem. op., not designated for publication). The day before, Adkins, the victim, and a mutual friend named "Kaylynn" all went swimming together. Adkins drove them all to a swimming hole in his white truck.
Kaylynn testified during the guilt-innocence phase of Adkins's trial. She testified that, while at the swimming hole and while away from the victim, Adkins told her more than once that he thought the victim was "sexy" and said that "he wanted to hook up with her" but "didn't want to go out on a date with her."
The victim testified that, after swimming, Adkins drove all three of them back to his home. Eventually, Kaylynn wanted to leave, so Adkins drove her home, and the victim rode along. Adkins and the victim then drove back to his home, and she became uncomfortable when Adkins started touching her and "weird[ing] [her] out." He was saying "sexually inappropriate" things to her. She then asked him to drive her home because she "was uncomfortable." They got into his truck, and he drove them to the remote location, instead of her home.
The victim further testified that, while driving, Adkins tried to grab her phone from her and punched her. He eventually knocked the phone away, pulled the truck over, and continued struggling with her. He then choked her, tried to pull her out of the truck, and punched her again. During their struggle, the victim tried to gouge his eyes with her thumb, bite him, and choke and hit him back. He succeeded in getting her out of the truck and demanded that she take off her shorts. When she refused, he threatened to hit her again. She removed her shorts, and he forcibly penetrated her vagina with his finger.
Eventually, she escaped. She testified that she ran down the road to flag down a passing car. The car's driver helped her and called the police once she told him that she had been raped.
The driver testified that he saw a white truck "going backwards on the highway," "with its taillights coming at" his car "in reverse." He was later able to identify for police that it was a white truck. Shortly after seeing the truck reversing, the driver saw a "girl standing in the middle of the road"—the victim—who "flagged [him] down." Her "shirt was torn, like ripped, and she had just been beat up or assaulted." He saw on her "a couple of bruises like where . . . she had put up a struggle."
The jury convicted Adkins of aggravated sexual assault by digital penetration, and punishment was assessed at 65 years' imprisonment. See Adkins, 2017 WL 474058 at *1. This Court affirmed his conviction on direct appeal. Id. at *1, 5. The Court of Criminal Appeals refused his petition for discretionary review.
Post-conviction, Adkins moved for the appointment of counsel to help him prepare and file a motion for DNA testing and attached an indigency affidavit. The State responded to the motion, telling the trial court that the State "d[id] not oppose the defendant's request for appointment of counsel . . . if the Court determine[d] that the defendant is indigent and the court finds reasonable grounds for the motion to be filed." Adkins filed the motion in August 2017, but, by June 2018, the trial court had not ruled on it.
In June 2018, and still acting pro se, Adkins moved for DNA testing and attached his affidavit in support. He requested (1) that three exhibits from the guilt-innocence phase of his underlying trial be re-tested for the presence of his DNA and (2) that another exhibit plus "all other physical evidence collected as part of the rape kit" be tested for the first time for the presence of his DNA. The three previously tested exhibits had tested positive for a mixture of DNA from two people, and neither Adkins nor the victim could be excluded as contributors to that mixture. The State did not respond to the motion for testing. We have no record of any oral hearing on either of Adkins's motions.
In January 2019, the trial court entered an order that denied both the motion for testing and the motion for appointment of counsel. The order recited the following fact findings:
1. A jury convicted [Adkins] of aggravated sexual assault by penetrating the complainant's sex organ with [Adkins]'s finger. . . .
. . . .
Based on its findings, the trial court denied Adkins's "request for additional DNA testing and the appointment of counsel." This appeal followed.
3. Testimony at trial established that if penetration occurred, it was only with [Adkins]'s finger. [Adkins] asserts that the absence of his DNA on the untested evidence would establish his innocence, but alleges no facts which would support such a conclusion. There is no expert opinion submitted that penetration of a vagina by a finger would necessarily leave any biological material from the assailant, such that the absence of any DNA material would refute testimony that the accused penetrated the complainant.
4. [Adkins] has no[t] alleged any facts showing that additional DNA testing might show that he did not commit the alleged offense.
STANDARD OF REVIEW AND APPLICABLE LAW
When there is no evidentiary hearing and the trial record and affidavit of the appellant are the only sources of information supporting a Chapter 64 motion, our review of a trial court's Chapter 64 rulings is de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). Our review extends to all of "the trial court's findings, express or implied, on appellant's Chapter 64 motion." See Thompson v. State, 95 S.W.3d 469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing Tex. Code Crim. Proc. art. 64.05); see also id. at 472, 473 n.2 (affirming denial of motion for testing because, although trial court made no express findings, "the record supports an implied finding . . . that no reasonable probability exists that exculpatory DNA testing of the box cutter would prove appellant's innocence").
Under Chapter 64 the convicted person has a right to appointed counsel "if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent." Tex. Code Crim. Proc. art. 64.01(c). "[A] motion for appointed counsel is a preliminary matter that precedes the initiation of Chapter 64 proceedings. At this stage, a convicted person has only contemplated the filing of a motion for DNA testing." Gutierrez v. State, 307 S.W.3d 318, 323 & n.31 (Tex. Crim. App. 2010) (citing Tex. Code Crim. Proc. art. 64.01(c)). The convicted person may complain on appeal about an erroneous refusal to appoint counsel only after the convicted person's later motion for testing has been denied:
[I]t would be a waste of judicial resources to entertain a challenge to a trial judge's refusal to appoint counsel when the convicted person has not yet initiated Chapter 64 proceedings. The better course is for a convicted person to file a motion for DNA testing and, if and when the motion is denied, appeal any alleged error made by the trial judge in refusing to appoint counsel. If a reviewing court determines that the trial judge erred in failing to appoint counsel, then the case will be remanded to the trial court so the convicted person can file a subsequent motion for DNA testing with the assistance of counsel.Id.
Additionally, "[a] convicted person may submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material. The motion 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. art. 64.01(a-1). "Basic requirements" for post-conviction DNA testing "are that biological evidence exists, that evidence is in a condition that it can be tested, that the identity of the perpetrator is or was an issue, and that this is the type of case in which exculpatory DNA results would make a difference." Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (citing Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), (a)(1)(B)). More specifically, the court may grant the motion and order the testing 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;
(B) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and
(C) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
Tex. Code Crim. Proc. art. 64.03(a).(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.
In reviewing the trial court's determinations, we are to consider all of the evidence before the trial court when it made its determinations. Asberry v. State, 507 S.W.3d 227, 229 (Tex. Crim. App. 2016). That evidence may include the evidence from the guilt-innocence phase of the underlying trial. See Swearingen v. State, 303 S.W.3d 728, 729-30, 736-38 (Tex. Crim. App. 2010) (noting that trial court's Chapter 64 findings were based in part on "evidence presented at appellant's 2000 trial" and reviewing trial evidence to dispose of appellate issues); Prible v. State, 245 S.W.3d 466, 470 & n.3 (Tex. Crim. App. 2008) (stating that "[e]vidence of a another person's DNA in addition to Appellant's is not exculpatory evidence in this case due to the additional evidence presented at the trial" and citing as support Court's "opinion on direct appeal for a detailed summary of the evidence presented at trial").
Specifically to Chapter 64's identity requirement, the Court of Criminal Appeals has explained that it centers on whether "identity was or is an issue in the underlying criminal case." Gutierrez, 337 S.W.3d at 889 (quoting 43B George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 45.188 (2001 ed. & 2008-09 supp.)). "The legislature has placed no barriers to the type of relevant and reliable information that the trial judge may consider when determining if identity was or is an issue in the case." Id. at 893. "The information must be reliable, but it need not be admissible or previously admitted at trial." Id. But a finding against the convicted person on the identity requirement cannot be based solely on the person's plea, confession, or "similar admission":
A convicted person who pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea, confession, or admission, as applicable.Tex. Code Crim. Proc. art. 64.03(b). So, for example, when a convicted person's statement placed him inside the deceased's "home with a screwdriver in his hand," it was the combination of that statement plus two statements by others that also placed the person inside the deceased's home that sufficiently supported the trial court's finding that identity was not and is not at issue in the underlying murder case. Gutierrez, 337 S.W.3d at 894, 899.
DISCUSSION
I. Adkins's motion for testing did not establish that "identity was or is an issue."
In his first and second issues, Adkins contends that the trial court erred by denying his motion to re-test State's exhibits 35, 36, and 37 from the guilt-innocence phase of his trial and to test State's exhibit 39 and "all other physical evidence collected as part of the rape kit." Exhibits 35, 36, 37, and 39 were, respectively, a hand swab, neck swab, nail swab, and vaginal swab, all of which were from the victim's sexual-assault kit.
Adkins argues that the swabs in Exhibits 35-37 should have been re-tested for the presence of his DNA, and the swab in Exhibit 39 and "other physical evidence collected as part of the rape kit" tested for the first time, because of the State's theory about the assault. The State's theory was that Adkins's finger penetrated his victim's vagina during a violent struggle. In his motion for testing and supporting affidavit, he swore that "it is a scientific probability" that a digital penetration in circumstances like these would leave "detectable remnants of [his] skin cells" in any DNA test of Exhibit 39. If either Exhibit 39 or the "other physical evidence collected as part of the rape kit" lacked any of his DNA, Adkins argued, then that "would lead any reasonable jury to conclude that" he had not committed the charged aggravated sexual assault. As to Exhibits 35-37, he argues that irregularities in the Austin Police Department's former crime lab undermined the exhibits' probative value about his guilt. Specifically as to the "other physical evidence collected as part of the rape kit," he argued that "suspicious circumstances" surrounded the crime lab's treatment of the material.
In his motion for testing, Adkins quoted a portion of his counsel's closing argument during the guilt-innocence phase of his trial. He emphasized his counsel's arguments about whether he had actually penetrated his victim's sexual organ:
I said that there's no question there's an assault. The big question: How far did it go? And that gets us to the issue of penetration.
. . . .
I think you got to do what [counsel for the State] said and look at that whole picture. So you look at the other pieces. The part of the sexual assault diagram that talks about the trauma there, right? I think that that's critical also because of how violent the rest of the assault was. And you remember how I
started to ask each and every witness about, well, if the struggle is more violent, isn't it more likely not only that DNA and that there be other evidence that we could collect, but that there would be other injuries. And everybody says yes. Your common sense tells you yes of course. And that's why we have all of these great tools and that's why we collect this evidence.Elsewhere in his motion for testing, Adkins pointed out that "there was a disagreement among the jurors during deliberations as to whether or not an actual sexual assault occurred. So the issue of penetration was not an open-shut case." In his appellate reply brief, Adkins admits that he "himself was bleeding during the struggle."
And that's where you should be offended, that it was collected but it was never tested. We have in this box right here, this box could answer that question. Inside this box is the evidence that was collected from the outside and from the inside that could have answered that question. And if the State is going to be held to their burden, that before you take a young man's freedom, you're going to make them give you evidence beyond any reasonable doubt.
The State responds by arguing that Adkins failed to show that identity was or is an issue in the case, as required by Code of Criminal Procedure article 64.03(a)(1)(C). We agree. Adkins's position both in his underlying trial and in his motion for testing was that he physically assaulted but did not digitally penetrate the victim, not that some other assailant committed the sexual assault. All his testing arguments assume that he was with the victim when she was sexually assaulted. His motion's extended quotation of his counsel's closing argument reflects his counsel making the same assumptions.
Adkins's admissions alone, however, would not be sufficient to affirm the trial court's finding that identity was not and is not an issue in his underlying criminal case. See Tex. Code Crim. Proc. art. 64.03(b) (prohibiting convicting court from basing finding that identity was not and is not at issue solely on convicted person's plea of guilty or nolo contendere, confession, or "similar admission"); Gutierrez, 337 S.W.3d at 889 (noting that Chapter 64's identity requirement is that "identity was or is an issue in the underlying criminal case"). Here, we have the combination of Adkins's admissions plus Kaylynn's, the victim's, and the passer-by driver's testimony about Adkins's white truck. Adkins had driven Kaylynn and the victim to go swimming, then to his home, and then to take Kaylynn home, all in his white truck. He later drove the victim away from his home, purportedly to take her home, in the same white truck. The assault then took place just outside the truck along the road. And the passer-by driver saw the white truck reversing on the road toward his car and later identified the white truck for police. The combination of this testimony plus Adkins's admissions places him in his white truck and thus at the scene of his aggravated sexual assault of the victim. See Gutierrez, 337 S.W.3d at 894, 899 (holding that combination of convicted person's admission plus others' statements placing convicted person in deceased's home supported finding that identity was not and is not an issue in convicted person's underlying murder case). Thus, Adkins's motion for testing failed to establish that identity was or is an issue in the case as far as Exhibits 35, 36, 37, and 39 and the "other physical evidence collected as part of the rape kit" were concerned. We therefore hold that the trial court correctly denied his request to test or re-test those items. See Tex. Code Crim. Proc. art. 64.03(a)(1)(C); Gutierrez, 337 S.W.3d at 894, 899; see also Prible, 245 S.W.3d at 470 ("The identity requirement in Chapter 64 relates to the issue of identity as it pertains to the DNA evidence."). We overrule Adkins's first and second issues.
II. Adkins's motion for appointment of counsel did not establish "reasonable grounds" for a motion for testing to be filed.
In his third issue, Adkins contends that the trial court erred by denying his motion for appointment of counsel. In the motion, Adkins offered arguments about his indigence but did not offer any arguments about reasonable grounds for a motion for testing to be filed. In his motion for testing, he reiterated his request for appointment of counsel and argued that the request should be granted because the State did not oppose it. For its part, in its response to the motion for appointment of counsel, the State noted that it did not oppose appointment of counsel so long as the trial court found "reasonable grounds for the motion to be filed."
"The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent." Tex. Code Crim. Proc. art. 64.01(c) (emphasis added). The "reasonable grounds" inquiry
necessarily turns on what is required for testing. Basic requirements are that biological evidence exists, that evidence is in a condition that it can be tested, that the identity of the perpetrator is or was an issue, and that this is the type of case in which exculpatory DNA results would make a difference. Courts have found that reasonable grounds for testing are not present . . . if identity was not or is not an issue.Gutierrez, 337 S.W.3d at 891 & nn.18, 20 (emphasis added) (citing Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), (a)(1)(B); Lewis v. State, 191 S.W.3d 225, 229 (Tex. App.—San Antonio 2005, pet. ref'd)).
We have already concluded that Adkins's motion for testing and supporting affidavit did not establish that identity was or is an issue in his underlying criminal case. His motion for appointment of counsel offered no further reason for why identity was or is an issue. Adkins bore the burden of proof on that topic. See Wilson v. State, 185 S.W.3d 481, 484, 486 (Tex. Crim. App. 2006); Lewis, 191 S.W.3d at 227-29. Because he did not carry it, we conclude that the trial court correctly denied his motion for appointment of counsel, including as he reiterated it in his motion for testing. See Gutierrez, 337 S.W.3d at 894-95 ("The trial judge is the sole judge of the credibility of these three consistent statements, all of which clearly and unequivocally place appellant inside Mrs. Harrison's home at the time of her murder. Therefore, we adopt this factual finding. Together with all the circumstantial evidence admitted at trial, this information supports the trial judge's ultimate legal ruling that there are no 'reasonable grounds' for a motion to be filed under Chapter 64."). We overrule Adkins's third issue.
CONCLUSION
We affirm the trial court's order.
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Baker, and Kelly
Concurring Opinion by Justice Baker Affirmed Filed: August 12, 2020 Do Not Publish