Opinion
NO. 02-16-00433-CR
08-24-2017
REGINALD D. DAVIS APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 0851753D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Reginald D. Davis appeals from the trial court's denial of his third motion for DNA testing and related request for appointment of counsel (third DNA motion). In his sole issue, Appellant contends that the trial court erred by concluding that identity is not at issue in the case. Because the trial court did not err by so concluding, we affirm the trial court's order.
I. Procedural History and Factual Background
A. A Jury Convicted Appellant of Capital Murder, and This Court Affirmed the Trial Court's Judgment.
In 2004, a jury convicted Appellant of the capital murder of Luis Marquez, and the trial court sentenced him to life imprisonment, the State having waived the death penalty. In his appeal from that judgment to this court, Appellant did not dispute the sufficiency of the evidence showing that he shot Marquez; Appellant contended that the evidence was insufficient to show that he had a specific intent to kill Marquez and that it instead showed that the shooting was accidental because it occurred during the men's struggle for the gun. Davis v. State (Davis I), No. 2-04-244-CR, 2005 WL 2100446, at *4-5 (Tex. App.—Fort Worth Aug. 31, 2005, pet. ref'd) (mem. op., not designated for publication). An eyewitness testified that he saw Appellant "attempt to rob and then shoot Marquez." Id. at *1. This court affirmed the trial court's judgment in 2005. See id. at *10.
B. Appellant Did Not Receive Timely Notice of the Trial Court's Denial of His First Two Postconviction Motions for DNA Testing.
The trial court denied Appellant's first postconviction motion for DNA testing and request for appointed counsel in 2014. Appellant did not receive timely notice of the denial and therefore did not file a timely notice of appeal. Consequently, this court dismissed the appeal for want of jurisdiction. Davis v. State, No. 02-14-00390-CR, 2014 WL 5409570, at *1 (Tex. App.—Fort Worth Oct. 23, 2014) (mem. op., not designated for publication), pet. ref'd; No. PD-1490-14, 2015 WL 9594718, at *1 (Tex. Crim. App. Mar. 18, 2015) (not designated for publication) (order and concurring statement) (both noting Appellant's remedy was to file a second DNA proceeding).
Appellant filed a second motion for postconviction DNA testing and related request for appointed counsel (second DNA motion), and the trial court denied it on April 17, 2015. More than two months later, after learning that Appellant again did not receive timely notice of the denial, the trial court vacated the order, reconsidered the second DNA motion, and denied it again with a signed order. This court dismissed Appellant's appeal from the trial court's denial of the second DNA motion because the trial court lacked plenary power to sign the later order. Davis v. State, No. 02-15-00283-CR, 2015 WL 10028889, at *1 (Tex. App.—Fort Worth Oct. 22, 2015) (mem. op., not designated for publication), pet. ref'd, 502 S.W.3d 803, 803 (Tex. Crim. App. 2016) (order) ("Appellant's recourse is to file a third motion for DNA testing in the trial court. We are mindful of Appellant's desire to avoid being placed in a 'never-ending loop,' and we order the trial court and the district clerk to ensure that Appellant receives timely notice of the trial court's next ruling.") (citation omitted).
Pending final approval after the Texas Court of Criminal Appeals reviews public comments, Tex. Crim. App., Order Concerning Adoption of Texas Rule of Appellate Procedure 4 .6, Misc. Docket No. 17-009 (Aug. 7, 2017), available at http://www.txcourts.gov/media/1438696/misc-docket-17-009-order-concerning-adoption-of-trap-46.pdf (last visited Aug. 17, 2017), the Court has promulgated rule of appellate procedure 4.6 to allow a defendant appealing a final ruling in a postconviction DNA proceeding to seek more time from the court of appeals for filing a notice of appeal "if the defendant neither received notice nor acquired actual knowledge that the trial judge signed an appealable order before the time for filing a notice of appeal had expired." Id., Order Adopting Texas Rule of Appellate Procedure 4 .6., Misc. Docket No. 17-007 (June 5, 2017), available at http://www.txcourts.gov/media/1438262/misc-docket-17-007-and-misc-docket-17-9061-order-adopting-trap-46.pdf (last visited Aug. 21, 2017).
C. Appellant Filed His Third Motion.
Appellant contended in his third DNA motion, filed in October 2016, that
• The evidence at trial was not conclusive regarding gunshot residue;
• A boxcutter had been found next to Marquez's body but never tested for biological evidence;
• "Testing of the box[]cutter can result in exculpatory evidence proving [Appellant's] claim that he is actually innocent of intentional murder and that he acted in self-defense when [Marquez] attac[k]ed him with the box[]cutter. [For example, Marquez]'s DNA on the boxcutter would co[n]stitute [e]xculpatory evidence"; and
• "Identity was clearly an issue in this case. [Appellant] went to trial and maintained his actual innocence of [i]ntentional [m]urder."
Appellant sought additional testing of the gunshot residue, Marquez's clothing, and the physical evidence; he also requested appointed counsel for the postconviction proceedings.
D. The Trial Court Denied Appellant's Third DNA Motion.
In denying Appellant's third DNA motion, the trial court adopted the State's proposed findings of fact and conclusions of law.
1. Findings of Fact
The trial court found that Appellant was convicted by a jury of capital murder on May 14, 2004 and that this court affirmed his conviction, citing this court's opinion, Davis I, 2005 WL 2100446. The trial court also found that evidence exists that might contain biological material but further found that Appellant:
• did "not allege that he did not cause [Marquez's] death";The trial court additionally found that even though Appellant had alleged that identity was at issue regarding intentional murder, the identity of Appellant as the person who shot Marquez is not at issue.
• "allege[d] that [Marquez] was accidentally shot";
• "allege[d] that he is actually innocent of intentional murder"; and
• "ha[d] argued to the trial court on numerous occasions that the offense was in self-defense and [a]n accident."
2. Conclusions of Law
The trial court concluded:
• Appointed counsel in a postconviction DNA proceeding is required if an indigent defendant so requests and if "the trial court finds . . . that there are reasonable grounds for a motion for DNA testing to be filed";
• "Self defense 'fails to raise an issue as to identity of the perpetrator of the alleged offense, which is required under the plain meaning of article 64.03(a)(l)(B)'";
• Because Appellant had alleged that the killing was an accident and was in self-defense, even though Appellant argued that identity was
at issue as to intentional murder, identity was not at issue as to whether Appellant shot Marquez;
• Appellant therefore failed to raise an issue as to identity;
• Because identity was not at issue, Appellant's motion did not satisfy the requirements of article 64.03;
• Because identity was not at issue, there were no reasonable grounds to file a motion for DNA testing; and
• Absent reasonable grounds for filing a motion for DNA testing, appointment of counsel was not required.
II. Discussion
Appellant timely appealed the trial court's denial of his third DNA motion. In his sole issue, Appellant contends that the trial court erred by denying his third DNA motion because identity is an issue in the case.
A. Standard of Review
We review the trial court's ruling on a Chapter 64 issue under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford the trial court almost total deference in the determination of historical facts and in the application of law to those facts when they turn on credibility and demeanor. Id. We review de novo all other application-of-law-to-fact questions. Id.
B. Substantive Law
Article 64.03 of the code of criminal procedure provides that the trial court may order postconviction DNA testing in a case like Appellant's only if:
? the trial court finds that:
? the evidence to be tested:
¦ exists "in a condition making DNA testing possible"; and
¦ "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";
? it is reasonably likely "that the evidence contains biological material suitable for DNA testing"; and
? identity is or was an issue in the case; and
? "the convicted person establishes by a preponderance of the evidence that:"
Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2016).? he would not have been convicted if DNA testing had exculpated him; and
? his request for DNA testing is not made to unreasonably delay justice or the execution of his sentence.
Article 64.01 of the code of criminal procedure provides that "[t]he convicting court shall appoint counsel for the convicted person if [he] informs the court that [he] wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that [he] is indigent." Id. art. 64.01(c) (West Supp. 2016). Reasonable grounds do not exist if identity was not or is not an issue. Peyravi v. State, 440 S.W.3d 248, 250 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011).
Identity is not and was not an issue when a defendant raises self-defense. Peyravi, 440 S.W.3d at 249-50; Lyon v. State, 274 S.W.3d 767, 769 (Tex. App.—San Antonio 2008, pet. ref'd); Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref'd), cert. denied, 552 U.S. 1117 (2008); see Pegues v. State, 518 S.W.3d 529, 535 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Similarly, even though a defendant raises accident, identity was not and is not an issue. See Phillips v. State, No. 02-10-00560-CR, 2011 WL 4415494, at *2 (Tex. App.—Fort Worth Sept. 22, 2011, pet. ref'd) (mem. op., not designated for publication); Hooks v. State, 203 S.W.3d 861, 863-64 (Tex. App.—Texarkana 2006, pet. ref'd); Bailey v. State, No. 04-02-00424-CR, 2003 WL 21396221, at *1 (Tex. App.—San Antonio June 18, 2003, pet. dism'd) (mem. op., not designated for publication).
C. Application to the Facts
Here, Appellant sought additional DNA testing not to show that a third person was the murderer but to show that Marquez was the aggressor and that Appellant acted in self-defense or that Marquez's death was accidental. The trial court properly found that Appellant failed to raise an issue of identity and therefore properly denied additional DNA testing. See Phillips, 2011 WL 4415494, at *2; Reger, 222 S.W.3d at 514.
We decline Appellant's invitation to revisit our prior holding that "identity" as used in the statute means the identity of the perpetrator. Reger, 222 S.W.3d at 514; see Leal v. State, 303 S.W.3d 292, 297 (Tex. Crim. App. 2009). Further, the case Appellant cites to indicate a "split" of authority regarding the term and a violation of his federal and state constitutional rights, State v. Lee, No. 10-05- 00271-CR, 2006 WL 1350226 (Tex. App.—Waco Oct. 11, 2006, pet. ref'd) (mem. op., not designated for publication), is inapposite. That sexual assault case involved an allegation that a second man, not Lee, had sexually assaulted the complainant and no admission by Lee that he had committed sexual assault. Id. at *1-2. The identity of the perpetrator was therefore at issue. See id. This case involves only two parties and the claim of self-defense or accident. Identity is not at issue. We therefore also reject Appellant's constitutional arguments based on disparity of treatment when compared with similarly situated defendants.
Moreover, according to Davis I, an eyewitness testified that Appellant shot Marquez while attempting to rob him, the two men struggled over the gun, and Marquez knocked the gun out of Appellant's hand before Appellant shot him. Davis I, 2005 WL 2100446, at *1. The firearms examiner testified that the distance between the muzzle and Marquez's clothing was at most twelve inches. Id. Thus, testing the gunshot residue found on Marquez's hands would not establish him as the aggressor to the exclusion of Appellant. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2).
Further, Appellant alleges in his brief and alleged in the trial court that Marquez "pull[ed] out a boxcutter and advanced toward" him after an argument, and then Appellant exhibited his handgun. If Marquez "pull[ed] out" the boxcutter, then he necessarily already possessed it. His DNA on the boxcutter would not establish that Marquez threatened Appellant with the boxcutter before Appellant brandished the gun, if at all; it would therefore not exculpate Appellant. See id.
Because the trial court properly found that identity was not and is not at issue, Appellant did not have reasonable grounds for seeking additional testing. See Gutierrez, 337 S.W.3d at 891; Peyravi, 440 S.W.3d at 250. The trial court therefore did not abuse its discretion by also denying Appellant's request for appointed counsel in the DNA proceeding. We overrule Appellant' sole issue.
III. Conclusion
Having overruled Appellant's only issue, we affirm the trial court's order denying Appellant's third DNA motion.
PER CURIAM PANEL: PITTMAN, J.; LIVINGSTON, C.J.; and WALKER, J. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 24, 2017