Opinion
No. 10-15-00032-CR
10-18-2017
DAMON LAVELLE ASBERRY, Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas
Trial Court No. 2007-1625-C2A
MEMORANDUM OPINION
This is an appeal to review a post-judgment, post-DNA testing, determination that the results, if known at the time of the original trial, are not such that it is reasonably probable that the defendant would not have been convicted. Because the trial court did not err in its unfavorable finding, the trial court's Findings of Fact and Conclusions of Law are affirmed.
PROCEDURAL HISTORY
Damon Lavelle Asberry was convicted of murder and sentenced to life in prison. TEX. PEN. CODE ANN. § 19.02(b) (West 2011). We affirmed his conviction, and our judgment was affirmed by the Court of Criminal Appeals. Asberry v. State, No. 10-08-00237-CR, 2009 Tex. App. LEXIS 8512, *1 (Tex. App.—Waco Nov. 4, 2009) (not designated for publication), aff'd, No. PD-0257-10, 2011 Tex. Crim. App. Unpub. LEXIS 101 (Tex. Crim. App. 2011).
Five years after his conviction, Asberry filed a motion for DNA testing. Based on the motion and the agreement of the parties, the trial court ordered post-trial DNA testing. After the results were obtained and a hearing held regarding those results, the trial court made a finding unfavorable to Asberry.
We initially affirmed the trial court's finding because we found the very limited record before us of the evidentiary post-DNA-test-result hearing did not support a finding by the trial court that had the DNA results been available during the trial of the offense, it was reasonably probable that Asberry would not have been convicted. Specifically, and most problematic for our review, was that the record of the previous trial was not part of the evidence at the hearing because it had not been introduced into evidence as an exhibit. We had only the test results to consider, and those alone did not satisfy Asberry's burden to establish, by a preponderance of the evidence, that he would not have been convicted had the jury been presented with the new DNA test results. See Asberry v. State, No. 10-15-00032-CR, 2015 Tex. App. LEXIS 10415 (Tex. App.—Waco Oct. 8, 2015) (not designated for publication). However, the Court of Criminal Appeals held that all of the "evidence" that was before the trial court when the court made its ruling should be available to, and considered by, this Court and remanded the case to us for our reconsideration. Asberry v. State, 507 S.W.3d 227, 229 (Tex. Crim. App. 2016).
Once the case was remanded, we abated the proceeding and ordered the parties to prepare a record of anything that the trial court had before it so that we could conduct our de novo review. Asberry v. State, 524 S.W.3d 335 (Tex. App.—Waco, Jan. 18, 2017, order). And because the trial judge made reference to his personal recollections in the trial court's findings, we ordered the trial court to provide those personal recollections, if any, upon which the trial court's decision was based in a format capable of being reviewed by this Court. Id. The requested record and supplemental briefs have been filed.
We did not have any of the record from the original trial because the Court of Criminal Appeals retained that record when it originally reviewed Asberry's conviction. Asberry v. State, 524 S.W.3d 335, n.1 (Tex. App.—Waco, Jan. 18, 2017, order).
DNA TEST RESULTS-REVIEW
Article 64.04 states that "after examining the results of [the DNA] 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 (West 2006). After conducting the required hearing, the trial court found:
that had the results been known at the time of trial, there is NOT a reasonable probability of innocence, and that it is NOT more likely than not that no reasonable juror would have convicted the defendant in light of the new evidence.
We realize that "a reasonable probability of innocence" is no longer the standard in reviewing the significance of Chapter 64 DNA test results. See Glover v. State, 445 S.W.3d 858, 861-862 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). However, neither Asberry nor the State argue that the trial court erred in the standard as expressed by the court. Further, the remainder of the finding is substantially similar to the standard in effect now and at the time of the hearing. Thus, we review the trial court's finding as if it were an unfavorable finding as stated under the statute.
Our review of a trial court's article 64.04 ruling is de novo, and we review the entire record to determine whether Asberry established, by preponderance of the evidence, that he would not have been convicted had the new results of the DNA test been available at trial. Asberry v. State, 507 S.W.3d 227, 228 (Tex. Crim. App. 2016). In deciding whether Asberry met his burden, we should consider whether the new test results would cast an affirmative doubt on the validity of his conviction. See Flores v. State, 491 S.W.3d 6, 9 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); Glover v. State, 445 S.W.3d 858, 862 (Tex. App.—Houston [1st Dist.] 2014, pet ref'd).
ISSUE ON APPEAL
In his sole issue, both initially and on remand, Asberry contends the trial court erred in its finding that there was not a reasonable probability that Asberry would have been acquitted had the new results been known at the time of trial. Asberry asserts that the State's case against him was weak. He argues that in recognizing its weaknesses, the State introduced evidence of extraneous offenses. He also suggests that the new DNA test results "completely contradict" the results offered at trial and if the case was tried now, there would be no physical evidence to link Bryan Daugherty, the murder victim and a student at Texas State Technical College (TSTC), to the car Asberry was driving. He asserts that what the State was left with—non-credible testimony by jailhouse informants, past instances of Asberry luring men to his vehicle and attempting to have sex with them, statements that Asberry knew he was a suspect, and an admission by Asberry that he was with Daugherty earlier in the day—proved by a preponderance of the evidence that Asberry would not have been convicted had the new DNA results been available at trial.
After reviewing the complete record, we disagree with Asberry's assessment of the record and the impact of the new DNA test results.
Facts
Before trial, DNA testing was conducted on the back seat cushion of the blue Mazda which Asberry had been driving and in which Daugherty had been a passenger. The test results were admittedly weak. The DNA that was obtained and tested before trial was a "low quantity" and only eight genetic markers were located in three of the nine places tested. It was determined that the DNA was a mixture of at least two people, and Daugherty, Asberry, and Asberry's brother were not excluded from the DNA profile.
The analyst testified that the DNA profile was of "low significance" because half of the population of Texas would be included as a possible source of the DNA. The analyst stated that the most conservative estimate of the number of people who would match the DNA profile was one in two matches; that is, one in two people would be included as a possible source of the DNA. He concluded that "[o]ne in two matches is a weak match." Asberry's trial counsel elicited testimony from the analyst that nothing conclusively linked the DNA to Daugherty and argued to the jury that "there's nothing there."
Pursuant to Asberry's motion for DNA testing after his conviction, the lab at the Department of Public Safety retested the sample tested before trial using the same kit as the previous test but using 16 locations rather than 9 and extracting the DNA robotically. Using these techniques, the analyst was able to exclude Asberry and Daugherty as possible contributors to the DNA.
The analyst was not asked if Asberry's brother was excluded as well.
Because the previous testing resulted in a weak match which did not conclusively prove that either Daugherty or Asberry was the source of the DNA, the new test results are not a "complete contradiction" of the previous results as Asberry asserts. And without the initial DNA test results, the State had substantially more evidence of Asberry's guilt than what Asberry suggests.
Although the jail house informants' credibility was attacked, they both knew facts that only the killer would know. They both knew that Asberry and Daugherty drove to Groesbeck and used drugs; that Asberry made sexual advances to Daugherty which Daugherty rebuffed; that Asberry then took Daugherty back to Waco; and that Daugherty and Asberry then fought and Asberry stabbed Daugherty. One informant knew that Asberry had the car he and Daugherty rode in detailed after the murder. He also knew that Asberry heard a pop when he stabbed Daugherty. The medical examiner testified at the trial that Daugherty was stabbed in the lung and the lung would make a popping sound when punctured. The other informant knew that Asberry and Daugherty went to Groesbeck to give a car back to Asberry's brother and pick up a different car. Further, neither inmate was in Waco at the time of the murder and it was unlikely they would have seen, heard, or read any of the stories about the murder.
As for the past instances of luring men to his vehicle and attempting to have sex with them, a former friend of Asberry's testified that she helped Asberry lure young men at least 100 times so that Asberry could take advantage of them. Even if the friend was not credible, a former TSTC student testified that when he was a student, Asberry took the student to Asberry's home in Groesbeck the week before the murder, got the student drunk, and made sexual advances toward him. A verbal and physical altercation followed when the student refused Asberry's advances.
Likewise, there was more evidence to link Asberry to the murder than just statements by Asberry that he knew he was a suspect and that he was with Daugherty the day before the murder. Asberry was a long-time student at TSTC and participated in the work-study program, working in the Financial Aid Office. Co-workers of Asberry at TSTC saw Daugherty with Asberry the day before the murder, and Asberry admitted to smoking marijuana with Daugherty at that time. Another TSTC work-study participant joined Asberry and Daugherty in smoking marijuana earlier that day as well. Within a day after the murder, Asberry told co-workers at TSTC that the police were trying to pin the murder on him. He made these and other statements to co-workers prior to any contact with the police which did not occur until four days after the murder. Asberry also admitted to a co-worker that he had a knife capable of committing the murder. He told that same co-worker that he dropped Daugherty off at his apartment the morning of the murder. But he later told police that he dropped Daugherty off at a 4-way stop sign by TSTC.
Additional incriminating actions or statements by Asberry occurred shortly after the murder involving the car Asberry was seen driving.
Asberry told police that he and Daugherty drove around in a white Mazda. He happily agreed to let police search the white Mazda. Oddly, before his conversation with police, he asked a co-worker what she knew about a white car and informed her that no blood would be found in that car. Asberry's brother, Elgin, stated that Asberry had been driving Elgin's white Mazda the day before the murder, but that at about 8 p.m., Asberry and Daugherty took Elgin's blue Mazda. Elgin gave written and verbal consent to police to search and then impound the blue Mazda. While police were looking at the blue Mazda, Asberry came out of his mother's home where he lived and immediately became very upset and started yelling that he and "that boy" were never in that car. He was very agitated and was also not happy with Elgin.
When searched, the blue Mazda smelled foul, like "spoiled meat, blood." The back seat was wet, and when the seat was touched, the residue was "like soapy bloody water...." The foul odor seemed to be stronger in the rear of the car than it did towards the front, and a suspicious stain was located on the right rear seat of the vehicle.
The week after the murder, Asberry and a friend attempted to detail the blue Mazda at a carwash in Groesbeck. Asberry drove the car to the carwash, and the friend followed him there. On the way, Asberry pulled over to the side of the road because he thought a police officer was following him and it made him nervous. Only the inside of the vehicle was cleaned, not the outside; and Asberry was responsible for cleaning the back seat area.
Shortly after the blue Mazda was searched and then impounded and was being stored at an impound lot, someone threw a homemade firebomb or "Molotov cocktail" on top of it. However, it was not destroyed.
Application
Although the new DNA test results affirmatively excluded Daugherty and Asberry as possible contributors to the DNA tested, the results did not cast an affirmative doubt on the validity of Asberry's conviction. Thus, in light of the evidence presented at trial and the facts necessary to prove Asberry's guilt, Asberry failed to establish by a preponderance of the evidence that he would not have been convicted had the new results of the DNA test been available at trial, and thus we cannot conclude the trial court erred in making its unfavorable finding.
Accordingly, Asberry's sole issue is overruled.
CONCLUSION
Having overruled Asberry's sole issue, we affirm the trial court's Findings of Fact and Conclusions of Law signed on January 15, 2015.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed October 18, 2017
Do not publish
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