Opinion
No. 14-08-00340-CR
Opinion filed January 13, 2009.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Court Cause No. 00-01-00216-CR.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
In 2000, appellee was convicted of capital murder and sentenced to life in prison. In 2007, he filed a post-conviction motion for DNA testing of evidence containing biological material pursuant to chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon 2006). The State responded with affidavits challenging the efficacy of mitochondrial DNA testing and whether appellee had proved by a preponderance of the evidence that he would not have been convicted if exculpatory results could be obtained. The trial court granted the motion. The State appeals the trial court's decision pursuant to article 44.01(a)(6) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(6). We affirm.
BACKGROUND
The crime from which this appeal stems was the horrific murder of two young women and the burning of their bodies. At appellee's trial for the murder of Misty Morgan and Sarah Cleary, Gabriel Saxton testified that on June 7, 1997, he went to a nightclub called Trio's with his sister, Lori, and her boyfriend, Clay. On the way to Trio's, they stopped at Fantasy North, a topless bar, where Saxton purchased cocaine. At Trio's, Saxton met Misty Morgan. When the club closed, Morgan offered Saxton a ride home. Saxton rode with Morgan and her friend, Sarah Cleary, back to Fantasy North where he bought more cocaine. The girls then drove to Conroe to take Saxton home. As they neared Saxton's residence, the girls asked Saxton if he would like to ride with them to "take care of some business."
Saxton agreed and they drove to a remote wooded area near some railroad tracks. They parked, rolled down the windows, and turned off the car's headlights. Saxton sat in the car with the two girls for 10 to 15 minutes while they smoked marijuana, snorted cocaine, drank beer, and talked. Saxton left the car and walked approximately 30 feet into the woods to relieve himself. Saxton testified that before he could relieve himself he noticed the lights of an approaching vehicle. He pulled his pants back up and ran across the road in front of the car to the other side of the girls' car. He saw three people in the approaching vehicle. He testified that the person in the middle had a ponytail, but he could not determine whether the individual was a man or woman. The configuration of the headlights indicated to him that the vehicle was a truck. He saw the driver of the truck pick up something from the floorboard and saw the passenger in the truck walk to the back of the truck and remove something. Saxton saw the driver of the truck go to the driver's side of the girls' car and the passenger in the truck went to the passenger side of the car. The driver of the truck engaged Cleary in conversation, and both girls exited the car. The driver grabbed Cleary and threw her to the ground. At the same time, the passenger threw Morgan to the ground.
As Saxton saw this, he started running away from the car toward the train tracks. He waited in the woods until the truck drove away. After the truck drove away, Saxton went back to the girls' car and saw that they were both lying on the road behind the car. He noticed that Cleary "was in pretty bad shape. Blood everywhere." Saxton took the girls' cell phones and his drugs; he looked for the girls' drugs, but could not find them. He also stole Morgan's watch and cigarettes and tried to take Cleary's boots. As he was stealing items from the injured girls, he saw the headlights of the returning truck. He jumped in the car and tried to drive away, but the only road was behind the car in the path of the truck. He exited the car and ran back into the woods. While in the woods, he heard yelling, a car door slam, and a "loud whoosh noise." He looked toward the car and saw that it was on fire. He then walked home. Saxton did not call the police because he was "already in enough trouble."
Saxton later discovered Morgan's identification in the package of cigarettes.
The next morning, a bike rider discovered the burned car. He notified the authorities who began an extensive investigation. In the course of their investigation, police officers learned that Saxton had been with the girls on the night of the fire. After telling the authorities several false stories of what happened that night, Saxton showed them where he had hidden a cell phone, Morgan's keys, and the identification. Saxton had dropped one of the cell phones at a local business in Conroe. Through interviews and cell phone records, authorities learned that appellee knew Misty Morgan. As a result of information received from the statements of appellee and Russell Lafleur, authorities arrested appellee, Lafleur, and Melissa "Cat" Branon for capital murder and arson.
Lafleur was tried and convicted of capital murder and sentenced to life in prison. See Lafleur v. State, 79 S.W.3d 129 (Tex.App.-Texarkana 2002, no pet.). Branon was charged with capital murder and spent more than two years in the Montgomery County Jail until she agreed to testify against appellee in his trial. During her incarceration, Branon maintained that she was not present at the scene of the murders. Changing her story approximately two weeks before appellee's trial began, she testified, under a grant of use immunity, that she was present when appellee and Lafleur confronted the victims at the scene of the crime.
Branon testified as follows: On June 7, 1997, she went with appellee to a club called Sacks for a short period of time. She and appellee had spent the previous three days driving around in Chris Vincent's truck selling drugs. Appellee had acquired the truck because Vincent was incarcerated; he permitted appellee to take over his drug business in exchange for appellee's promise to make payments on the truck. The truck did not have blood in it, and there was no reason for anything resembling blood to "show up in that truck." At about 1:00 in the morning, they picked up Lafleur, took LSD and drove down a dirt road to meet someone. On the dirt road in a remote area, they stopped short of a car that was ahead on the road. Appellee and Lafleur got out of the truck and approached the car. The girl on the driver's side of the car got out and talked with appellee. Appellee grabbed the girl and began hitting her with his fist. Afraid, Branon looked down toward the floorboard of the truck and did not see anything else. Appellee and Lafleur got back in the truck and drove to Steven McGill's house. At McGill's house, they picked up a gasoline can and drove back to the remote area where the car was located. A body was blocking the road, and the next thing she knew, the body "ended up" in the bed of the truck. Appellee was in the bed of the truck with the body, and Branon heard a man's voice and someone's moaning. Appellee and Lafleur got back in the truck and drove up to the car. Branon saw a girl moving in the back seat of the car just before appellee and Lafleur poured gasoline on the car, and the car became engulfed in flames.
Crime scene investigators collected hair and blood from the scene of the fire. They eventually collected samples from stains left in the truck that appellee was driving that night. No match was made between appellee and the hair, fibers, or footprints left at the scene.
Catherine Caballero, a DNA specialist who examined the evidence for the Texas Department of Public Safety (DPS), testified that she examined 21 stains, a rubber bed mat, four mud flaps, and two floor mats from a 1996 Ford Ranger truck. Caballero testified that some of the stains provided a positive result for the presumptive tests, but such results did not indicate that the stains contained blood. She explained that a presumptive test is a chemical test providing information on the possibility of blood's being present. A positive presumptive test does not confirm that the stain is blood; rather, it indicates a possibility of blood. After more extensive tests, she could not conclusively establish that the stains contained human blood. Because the subsequent tests were negative, no attempt was made to extract DNA from the stains. Cabellero further explained that the tests could have been negative because the stains had deteriorated over time or through environmental exposure. She also theorized that cleaning agents could have caused the substance in the stains to deteriorate.
Kristi Wamsatt, a DPS criminalist, testified that she examined the hair collected at the crime scene. The twelve hairs collected from the truck were microscopically different from the hairs collected from the victims' hairbrushes. She further testified that the test of the stains in the truck revealed no apparent blood, although acknowledging the possibility of obtaining a negative result on a stain even if the stain actually contained blood.
Butch Emmons, a crime scene investigator with the Montgomery County Crime Scene Department, testified that he examined the pickup truck for four days. He marked "small blood stains" on the rubber bed mat and testified that his first test on the mat for blood was negative. After he wiped the dust away from the stains, a second presumptive test was positive for blood. Emmons testified that the blood spatter found on the bed mat conformed to the pattern associated with beating, stabbing, or blunt trauma. Even though he believed the substance on the truck to be human blood, he admitted that the chemist from DPS could not confirm his conclusion. The stains were re-tested in 1999, and the lab was unable to extract DNA. Throughout his testimony, Emmons referred to the stains as "blood" and testified to his expertise in blood spatter analysis.
Appellee presented evidence of Saxton's admission to a friend that he had killed the girls and had burned them in their car. Appellee further presented the testimony of Edie Emerick, a DNA serologist with the DPS crime lab in Houston. Emerick's testimony impeached prior lab results indicating a presumptively positive test for the presence of blood on the truck. Emerick testified that she tested 19 stains from the bed of the truck. Presumptive tests for blood on the stains were negative. Emerick explained that a negative presumptive test could mean either that the substance is not blood, or that the substance has been degraded by sunlight, heat, humidity, and other environmental factors. Emerick testified that a presumptive test reacts with the iron in blood, so that anything containing iron, such as rust, could result in a positive presumptive test.
Appellee was convicted of capital murder and sentenced to life in prison. On appeal, his conviction was affirmed. Labonte v. State, 99 S.W.3d 801 (Tex.App.-Beaumont 2003, pet. ref'd). On May 30, 2007, appellee filed a motion for post-conviction DNA testing in which he requested that the court order forensic DNA testing of, among other things, 20 blood stains from the Ford Ranger truck, stains on the rubber bed mat, and stains on the mud flaps. Appellee specifically sought re-testing of the evidence using mitochondrial DNA analysis. Appellee alleged that mitochondrial DNA analysis can be used to examine the DNA from samples that cannot be analyzed using nuclear DNA methods, which is the method used by the DPS crime lab in analyzing the samples prior to trial. Appellee also asserted that (1) the evidence had been maintained under a sufficient chain of custody to establish its authenticity, (2) the identity of the assailants was at issue in the original trial, and (3) if mitochondrial DNA testing produced results specifically excluding appellee or his vehicle from the scene of the crime, he would not have been convicted. Specifically, if test results indicated that the stains on the truck could not have come from the victims, he would have been able to establish reasonable doubt as to his presence at the scene of the murders. In his response to the State's opposition to DNA testing, appellee alleged that Branon had recanted her testimony post-trial. Attached to appellee's response is a deposition given on February 10, 2004, in which Branon averred that her testimony at appellee's trial was incorrect. Branon stated that she agreed to testify at appellee's trial because law enforcement officers "were drilling" her, telling her she would be sentenced to 40 years if she went to trial. The officers told her that if she testified against appellee she would "have a strong possibility of going home." After she testified at trial, her case was dismissed. Branon further testified that, on the night of the murders, she and appellee stayed at his home in New Waverly "tripping on LSD all night." Branon learned details of the murders from the detectives who were questioning her. Prior to trial, the detectives "mentioned everything, all the details and everything, and was kind of leading [her] into agreeing with them." After detectives told her what Saxton had said, she "pieced together" the details from their information.
The State challenged appellee's motion, asserting that he could not establish that exculpatory results could be obtained through additional DNA testing. The State first argued that appellee had failed to show how mitochondrial DNA testing would provide more accurate results than nuclear DNA testing. Second, the State argued that the evidence at trial was sufficient to support a conviction even if DNA testing showed that the stains in the truck did not contain the blood of the victims. The trial court granted appellee's motion, finding that appellee's identity was an issue and that appellee had established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. The State appeals the trial court's order on the grounds that (1) appellee failed to prove by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained from DNA testing, and (2) the trial court erred in considering post-trial events in ordering DNA testing.
STANDARD OF REVIEW
In its order, the trial court states that it heard the motion for DNA testing on February 12, 2008. A record of that hearing does not appear in our record. Our record contains appellee's motion for DNA testing supported by his affidavit and documents showing pretrial DNA testing, the State's opposition, and appellee's response to the State's opposition supported by Branon's deposition recanting her trial testimony. Appellee included the original trial record as part of the appellate record.
While we defer to the trial court's determination of issues of historical fact and application of law to fact issues that turn on the credibility and demeanor of the witnesses, we do not have a record of the hearing on appellee's motion. The original trial record from 2000 and the exhibits attached to the motion are the only source of information that supports appellee's motion. The Court of Criminal Appeals has determined that in such a case our review is de novo because we are in as good a position as the trial court to review the evidence. Smith v. State, 165 S.W.3d 361, 363 (Tex.Crim.App. 2005).
DISCUSSION
A. Consideration of Post-Trial Events
In its second issue, the State contends that the trial court erred in considering post-trial events in ordering DNA testing, specifically Branon's post-trial recantation. Article 64.04 provides, "[a]fter examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted." TEX. CODE CRIM. PROC. ANN. art. 64.04. (emphasis added)
Because Branon did not recant until four years after the trial, the trial court erred in considering Branon's post-trial recantation of her testimony, as appellee concedes. Appellee argues, however, that the trial court's error is harmless because there is ample evidence in the trial record, independent of Branon's recantation, to support the trial court's determination that appellee met his burden under article 64.03. Therefore, we will review appellee's motion without considering Branon's recantation.
B. Exculpatory Nature of DNA Testing
Before a trial court can order DNA testing under chapter 64, it must find that (1) evidence still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected to a proper chain of custody; and (3) identity is an issue in the case. TEX. CRIM. PROC. CODE ANN. art. 64.03(a)(1). A movant must also establish by a preponderance of the evidence that (1) he would not have been convicted if exculpatory results had been obtained through DNA testing; and (2) the request is not made to unreasonably delay the sentence. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2). To meet his burden to have testing done, appellee must prove that, had the results of the DNA test been available at trial, there is a 51% chance that he would not have been convicted. See Smith v. State, 165 S.W.3d at 364.
Appellee argues that the only physical evidence tying him to the crime scene is the blood spatter testimony of Butch Emmons. Hairs found inside the truck did not match the victims, nor did hair from the scene match appellee. Emmons testified that the stains in the back of the truck were blood and that the blood spatter pattern was consistent with a beating or blunt force trauma. The only other evidence that placed appellant at the crime scene was the accomplice testimony of Branon. If results of mitochondrial DNA testing showing that the stains were not blood, or that the DNA did not match that of the victims had been introduced at trial, according to appellee, there is a 51% chance that he would not have been convicted.
The State argues that the following evidence of appellee's guilt, independent of the blood spatter testimony and Branon's testimony, is sufficient to tie him to the offense:
• Appellee refused to give his boots to a Montgomery County detective to be compared to footprints found at the scene.
• Appellee gave conflicting statements about his whereabouts on the night of the offense.
• While sitting alone in the interview room of the Montgomery County Sheriff's Office during a videotaped interview, appellee muttered, "Man, I've (inaudible) fucked up."
• The morning after the girls were murdered, appellee appeared at the home of a friend, nervous, dirty, sweaty, and scared, and asked to use the friend's truck because he was in trouble and might have to leave town.
• Appellee told a co-worker that his best friend killed two girls and that appellee had passed polygraph and DNA tests, so he did not understand why Branon wrote a note implicating him.
The note stated, "I know where I was that night; better figure out where you were."
• Appellee told the same co-worker that on the night of the offense "there was a supposed mystery man that saw two guys and a girl; killed two people."
None of the evidence cited by the State physically places appellee at the scene of the offense. While appellee's comments and actions are suspicious, they do not place him at the scene. The State further asserts that Lafleur's statement from his trial places appellee at the scene of the offense. Because Lafleur's statement was not admitted at appellee's trial, we cannot consider it. See TEX. CODE CRIM. PROC. ANN. art. 64.04.
The jury heard evidence that there was no reason for blood to have been in the back of the truck and that "blood spatter" was consistent with beating, stabbing, or blunt force trauma. They heard this evidence despite other testimony that the stains in the back of the truck might not have been blood. If mitochondrial DNA analysis shows that the stains in the truck do not contain human blood, or, if so, do not contain the victims' blood, there is a 51% chance that the jury would have found a reasonable doubt of appellee's guilt.
CONCLUSION
Disregarding Branon's post-trial recantation, the trial court had sufficient evidence to determine by a preponderance of the evidence that favorable DNA results would have prevented appellee's conviction. The order of the trial court is affirmed.
Publish — TEX. R. APP. P. 47.2(b).