No. 05-07-00036-CR
Opinion Filed July 28, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F95-01269-M.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
ELIZABETH LANG-MIERS, JUSTICE.
Appellant Spencer King, Jr. appeals the trial court's order denying his motion for post-conviction DNA testing. In two issues, he argues that the trial court erred when it found that identity was not an issue in appellant's case and that appellant did not establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. We affirm the trial court's order.
Factual Background
In the early morning hours of August 12, 1994, Ricardo Resendez was driving home from work when he saw a body on the side of Beltline Road near Seagoville. Resendez drove to a nearby convenience store and called the police. The police arrived on the scene and later identified the victim as Linda K. Waits. After a brief investigation, police arrested appellant, Michael Hadnot, and Donnie Blanton in connection with Waits's murder. Appellant was subsequently charged with sexual assault and capital murder. At trial, Blanton testified that he, Hadnot, and appellant lived in Sand Branch, a community near Seagoville. According to Blanton, he and Hadnot were driving around in Hadnot's car during the late evening of August 11, 1994. When they saw Waits standing near a Cadillac at the intersection of Burns and Pin Oak Street, the men stopped. Two other people, Nena Eldridge and Alan Young, walked up. While Hadnot talked to Waits, Blanton drove Waits's Cadillac to Beltline Road, then returned on foot. Blanton and Hadnot then drove to Beltline Road where they took Waits's Cadillac and drove it around for awhile. The men later abandoned the car on Simonds Road and returned to where they had left Waits earlier. They saw appellant near an abandoned house. Blanton said they could hear Waits banging on the house walls, yelling, "I want to get out of the house." Blanton asked what was going on, and appellant said he "had just had sex with the bitch." Hadnot told appellant to let Waits out of the house which he did. Waits was half-dressed and appeared "numb" and "dazed." When she began wandering around, appellant said they "[couldn't] let her leave about the neighborhood." According to Blanton, Hadnot then said he was going to kill her and asked for Blanton's .38 caliber gun. After appellant left, Blanton gave Hadnot the gun. Hadnot shot Waits twice, and the two men ran away. When the police arrived the following day, Blanton showed them where he had buried the gun. Hadnot testified that he and Blanton drove to the intersection of Burns and Pin Oak Street, where they saw Waits standing by a yellowish Cadillac. According to Hadnot, she appeared drunk and said she was lost. While Hadnot talked to her, Blanton took her car and drove away. When Blanton returned, the two men left and drove around in Waits's car. After abandoning Waits's car, they went back to Sand Branch where Hadnot parked his car in front of his grandmother's house. While the men were sitting in Hadnot's car, Blanton claimed he heard noises. The men walked down the street where they saw appellant in front of an abandoned house. Hadnot said they could hear Waits inside the house, yelling. Appellant told Blanton and Hadnot he had raped and assaulted Waits. He then told them "he had been to [penitentiary] too many times to go down behind this bitch." When Waits came out of the house, she was bruised and crying and was not wearing any pants. She wandered over to a nearby house and spoke with the owner, J.W. Davis, and another man, Bobbie Livingston, before walking towards Beltline Road. Appellant again told Blanton and Hadnot he was not going back to prison because of this woman. He then told Blanton to "kill the bitch." Blanton and Hadnot followed Waits as she walked towards Beltline Road, and Blanton shot her twice with his .38 caliber gun. Hadnot was not sure if appellant was there when Waits was shot. The two men then ran away. After Hadnot testified, but before the State rested, Blanton was recalled. On redirect, Blanton testified that he had not been entirely truthful in his earlier testimony. Blanton then testified that appellant had said they "couldn't let the bitch leave the neighborhood." According to Blanton, he, not Hadnot, shot Waits twice. Blanton testified that he shot her because "[appellant] had told me that I couldn't let her leave the neighborhood, I [felt] my life was in danger. . . . so I had to, you know what I'm saying, do what he asked me to do." Dr. Charles Odom, a medical examiner at the Dallas County Medical Examiner's Office, testified he performed an autopsy on Waits. Dr. Odom testified that Waits was shot twice, one of which was a fatal injury. In addition, Waits had several bruises on her left thigh, in her scalp inside the hairline, and on her face. Dr. Odom stated those bruises were consistent with Waits having been struck by someone's fist or a blunt object. At the time of her death, Waits's blood alcohol level was .24 percent but she tested negative for any drugs. In addition, Dr. Odom testified that Waits had sexual intercourse at or shortly before the time of her death. Carolyn VanWinkle, a forensic DNA expert at the Institute of Forensic Science at Dallas, testified that she analyzed blood samples from Waits, appellant, Hadnot, and Blanton in conjunction with a semen stain found on Waits's purple leggings. According to VanWinkle, the "nonvictim DNA banding pattern from the sperm, matched the banding pattern of [appellant], and did not match the banding pattern of [Blanton or Hadnot]." Procedural Background
Appellant was indicted for capital murder for knowingly or intentionally killing Waits by shooting her during the course of committing or attempting to commit aggravated sexual assault. He pleaded not guilty and his case was tried before a jury. After the close of the evidence, only the separate, alternative crimes of murder or sexual assault were submitted to the jury. The jury was instructed on the law of parties and also instructed to consider the alternative offense of sexual assault only if the jury did not find appellant guilty of murder. The jury found appellant guilty of murder. During the punishment phase of his trial, appellant pleaded true to two enhancement paragraphs. The jury found the enhancement paragraphs true, made an affirmative deadly weapon finding, and sentenced appellant to life in prison. In 2006, appellant filed a motion for post-conviction DNA testing and submitted a supporting affidavit. In his motion, appellant argued that there was DNA evidence in the State's possession that, "to the best of [his] recollection," was "not subjected to DNA testing." He also argued that "there is a substantial likelihood" that DNA testing of this evidence would demonstrate that he is "not guilty of this charge." He argued that "[i]dentity was and is an issue in this case" and that "[i]t is a reasonable probability that the defendant would not have been convicted if exculpatory results were obtained through DNA testing" because that evidence "would exclude a person from the group of persons who could have committed this offense." The trial court ordered the district attorney to turn over the DNA evidence from appellant's case, or to explain in writing to the court why the evidence could not be delivered. See Tex. Code Crim. Proc. Ann. art. 64.02(a)(2) (Vernon Supp. 2007) (on receipt of motion for forensic DNA testing, convicting court must require attorney representing the State to deliver the evidence to court or explain in writing why it cannot be delivered). The State filed a written response, in which it informed the court that "there are several agencies still in possession of biological evidence that is amenable to forensic DNA testing," but argued that appellant is not entitled to DNA testing for two reasons: (1) because identity "was not and is not an issue in this case," and (2) because appellant "has not met his burden of proof by a proof by a preponderance of the evidence that he would not have been convicted had exculpatory DNA test results been available at trial." The trial court issued an order denying appellant's motion, which included the trial court's findings that "identity was not and is not an issue in this case" and that appellant "has not established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing." Appellant timely filed his notice of appeal. Applicable Law
A convicting court can grant a motion for post-conviction DNA testing only if it finds that all of the requirements under chapter 64 of the code of criminal procedure are met. See id. art. 64.03(a). Among other requirements, the convicted person must establish, by a preponderance of the evidence, that "the person would not have been convicted if exculpatory results had been obtained through DNA testing." Id.; see also Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App. 2006). When we review a trial court's decision to deny a motion for post-conviction DNA testing, we apply a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). "[W]e afford almost total deference to a trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues." Id. The ultimate question of whether an appellant has demonstrated by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. See Wilson, 185 S.W.3d at 484 (citing Rivera, 89 S.W.3d at 59). Analysis
In two issues, appellant challenges both of the trial court's findings cited above. We begin by reviewing appellant's second issue, in which he argues that the trial court erred when it found that appellant did not establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Appellant argues that the trial court's finding was in error because "exculpatory DNA results excluding [appellant] would support a finding that no sexual contact occurred" between him and Waits, which would demonstrate that appellant "had absolutely no motive or reason to want Ms. Waits dead" and that "the testimony of Blanton and Hadnot simply cannot be true." In other words, appellant essentially contends that his conviction for murder depended on an implied finding that he was guilty of sexual assault. In response, the State argues that even if the results of the DNA testing were favorable to appellant, such results "would never prove or disprove the fact that appellant told Blanton to kill [Waits]." The jury charge instructed the jury to find appellant guilty of murder if they believed beyond a reasonable doubt that Blanton intentionally killed Waits and that appellant was a party to the offense and acted with intent to promote the offense. We reject appellant's suggestion that his conviction for murder required an implied finding that he was guilty of sexual assault. Even if all of the forensic evidence available for DNA testing was tested, and even if the test results demonstrated that appellant was not the source of the DNA tested, we conclude that the results would not demonstrate by a preponderance of the evidence that appellant would not have been convicted of Waits's murder. Consequently, we conclude that the trial court did not err when it found that appellant did not establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See, e.g., Wilson, 185 S.W.3d at 485 (affirming trial court's decision to deny motion for post-conviction DNA testing because "appellant's conviction of capital murder was based on murder committed in the course of a kidnapping. Therefore, whether testing . . . would indicate that [the victim] was raped by another person . . . would be wholly irrelevant."). We overrule appellant's second issue. And because a convicted person must meet every requirement under chapter 64 before a convicting court can order DNA testing, our resolution of appellant's second issue also requires us to conclude that the trial court did not err in denying appellant's motion for DNA testing. Consequently, we do not address appellant's first issue because, even if we concluded that identity was an issue, our conclusion would not change the disposition of appellant's appeal. See Tex. R. App. P. 47.1. Conclusion
We affirm the trial court's judgment.