Nos. 05-04-00532-CR, 05-04-00534-CR
Opinion Filed August 3, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F82-86866-Q, F82-77162-Q. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice WHITTINGTON.
Steven Charles Phillips appeals the trial court's orders denying his motions for post-conviction DNA testing. The DNA testing proceedings arise out of appellant's convictions for aggravated rape and aggravated sexual abuse of victim M.B. Appellant's attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See Murphy v. State, 111 S.W.3d 846, 849 (Tex.App.-Dallas 2003, no pet.). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant exercised his right to file a pro se response to counsel's brief. In his response and supplemental response, appellant contends the trial court lacked jurisdiction and considered improper evidence, the State withheld Brady material, he received ineffective assistance of counsel, the trial court's findings are erroneous, and the State's response contains a material error. After conducting an Anders review, we overrule appellant's grounds and affirm the trial court's orders.
In these cases and a third case arising from the same incident, the trial court issued identical orders bearing all three cause numbers.
Background
On May 14, 1982, an assailant entered M.B.'s home and sexually assaulted her at gunpoint. Although her assailant commanded her not to look at him, M.B. glanced at him repeatedly during the twenty-to-thirty minutes he was in her home. M.B. described her assailant as having very deep "devilish-looking" eyes, a tan, muscular build, a mustache, a receding hairline, and a "good sized nose." The assailant was wearing a grey, hooded sweatshirt and running shoes. The assailant was covering the lower half of his face with a piece of grey cloth. The assailant placed M.B.'s young son in the bathroom but then ushered him into his bedroom when he began crying. While the assailant assaulted M.B., her son began to cry again and M.B. told the assailant that she was worried about her son. The assailant stopped assaulting M.B. and put her into the room with her son. As the assailant left, M.B. saw a full profile of his uncovered face from a five-foot distance and she saw his face again when he looked both ways before walking outside. M.B. assisted the police in preparing a composite drawing of the suspect. M.B. did not pick a photograph from two photographic lineups that did not contain appellant's photograph. On May 20, 1982, appellant was arrested in M.B.'s neighborhood. The arresting officer observed a grey sweatshirt in appellant's vehicle, but the officer could not recall at trial whether the sweatshirt was hooded. When an officer showed M.B. a third photographic lineup containing appellant's photograph, M.B. identified appellant as her assailant. For his offenses against M.B., three separate juries convicted appellant of aggravated rape, aggravated sexual abuse, and burglary of a habitation. The juries assessed punishment at thirty years' confinement for aggravated sexual abuse and burglary of a habitation and ten years' confinement for aggravated rape. Appellant unsuccessfully appealed the aggravated sexual abuse and burglary convictions. Appellant did not appeal the aggravated rape conviction. In addition to the offenses against M.B., appellant was charged with eight other offenses that occurred in April and May 1982. Some of the offenses had occurred in M.B.'s neighborhood. In many of the offenses, the perpetrator entered health spas or pool areas and forced victims to disrobe at gunpoint and perform sex acts. Including M.B., six out of eight victims shown photographic or in-person lineups identified appellant as the offender. After being convicted of the offenses against M.B., appellant entered guilty pleas to the other eight offenses. In 2002, appellant filed motions seeking post-conviction DNA testing on all eleven cases. See Tex. Code Crim. Proc. Ann. Art. 64.01, et seq. (Vernon Supp. 2004-05). The State filed a joint response for the cases involving M.B.'s assault, showing it possesses a vaginal swab used during M.B.'s rape examination, samples of M.B.'s pubic hair, and body hairs recovered from M.B.'s bedspread. Nevertheless, the State urged the trial court to deny testing. Agreeing with the State, the trial court entered an order finding: (1) appellant failed to specify the evidence he seeks to test, (2) identity was not and is not at issue, and (3) he failed to show he would not have been prosecuted or convicted if exculpatory test results existed. Standard of Review
In conducting our Anders review, we review the entire record to determine whether the appeals are "wholly frivolous" or if there are issues "arguable on their merits." See Anders, 386 U.S. at 744. An appeal is wholly frivolous and lacks merit when it "lacks any basis in law or fact." See McCoy v. Court of Appeals, 486 U.S. 429, 436, 438 n. 10 (1988). All doubts and ambiguous legal questions must be resolved in appellant's favor. See id. at 444. We defer to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). We review de novo all other application of law-to-fact issues including the ultimate issue of whether a reasonable probability exists that exculpatory evidence would prove appellant's innocence. Id. Under the law in effect at the time appellant filed his motions, the trial court may not order forensic DNA testing unless it finds identity was or is an issue in the cases and appellant has established by a preponderance of the evidence that he would not have been prosecuted or convicted if DNA testing had yielded exculpatory results. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. Art. 64.03(a) (Vernon Supp. Pamph. 2004-05)). Relying on a bill analysis from the 2003 statutory amendment, the court of criminal appeals has explained that a convicted person meets his burden of showing a preponderance of the evidence if he shows that there is a 51% chance he would not have been convicted if the DNA test results had been available at trial. See Smith v. State, 165 S.W.3d 361, 363-64 (Tex.Crim.App. 2005). Jurisdiction And Irregularities In The Trial Court
In his first ground, appellant challenges the trial court's jurisdiction and its use of evidence developed in the burglary case. Appellant filed all of his Chapter 64 motions in the 204th Judicial District Court where the aggravated sexual abuse and aggravated rape cases had been tried. However, the burglary of a habitation case was tried in the 194th Judicial District Court. Thus, the 204th Judicial District Court acted without jurisdiction in ruling on a post-conviction DNA motion in the burglary case. See Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App. 2003) (concluding that "the convicting court" has jurisdiction to order post-conviction DNA testing). Appellant contends the trial court's order should be overturned, not only because the trial court acted without jurisdiction in determining the burglary case motion, but also because the State's response incorporated facts and evidence gleaned from the burglary case. In cause no. 05-04-00533-CR, appellant's appeal of the order denying DNA testing in the burglary case, counsel submitted a brief on the merits raising the sole issue of the trial court's jurisdiction. After the State conceded error, we issued a separate legal opinion vacating the order filed in that case. The fact that the orders filed in these cases reference the burglary case cause number does not necessarily mean that the entire order is invalid. See Puente v. State, 71 S.W.3d 340, 344 (Tex.Crim.App. 2002) (holding that invalidity of a portion of an indictment, judgment, or sentence does not necessarily mean the entire item is invalid or void). Because the present cases were tried in the 204th Judicial District Court, the trial court properly exercised jurisdiction over them. See Wolfe, 120 S.W.3d at 372. Assuming, without deciding, that the State improperly used evidence from the burglary case in responding to appellant's motions, appellant waived the issue by not objecting in the trial court. See Tex.R.App.P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Accordingly, we conclude appellant's first ground does not raise an arguable issue for appeal. Withholding Exculpatory Evidence
In his second ground, appellant contends the State failed to disclose exculpatory evidence showing that a second suspect had been implicated in a spree of similar crimes in Denton, Texas and the Kansas City area. See generally Brady v. Maryland, 373 U.S. 83, 87 (1963). Chapter 64 does not authorize us to consider appellant's Brady complaint. See Tex. Code Crim. Proc. Ann. Art. 64.05 (Vernon Supp. 2004-05); Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.) (explaining limitations on Chapter 64 review). We conclude appellant's second ground does not raise any arguable error for appeal. Ineffective Assistance of Counsel
In his third ground, appellant contends he received ineffective assistance of counsel. Appellant is not entitled to claim ineffective assistance of counsel in a Chapter 64 proceeding. See Hughes v. State, 135 S.W.3d 926, 928 (Tex.App.-Dallas 2004, pet. ref'd). Moreover, because the record does not include counsel's explanation for the actions and omissions he challenges, appellant cannot prove ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). We conclude appellant's third ground does not raise an arguable issue for direct appeal. Challenges To The Trial Court's Findings
In his fourth, fifth, and sixth grounds, appellant contends the trial court erred in finding that he had not specified the evidence to test, identity was not at issue, and he had failed to show by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory test results existed. We will consider appellant's arguments regarding each finding in turn. Article 64.01 requires an applicant to "submit to the convicting court a motion for forensic DNA testing of evidence 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." See Tex. Code Crim. Proc. Ann. Art. 64.01(a) (Vernon Supp. 2004-05). Appellant's motions assert the State possesses "evidence containing biological material" that was not subjected to DNA testing. Appellant asserts "a substantial likelihood" that DNA testing of "the biological evidence" would prove his innocence, that identity was and is an issue and "it is a reasonable probability that [appellant] would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing." In his affidavits, appellant reiterates the State possesses "biological material" that was not tested through no fault of his own. Appellant adds that "the ultimate question in this case was whether I, Steven Phillips, committed this offense of aggravated sexual abuse with a deadly weapon. It is a reasonable probability that it would show that I did not commit this offense if DNA forensic testing was done on the biological material." Because appellant describes the evidence to be tested only as "biological material," we agree with the trial court that he did not specify what he wanted tested. However, while these cases were on appeal, the court of criminal appeals held that a motion and affidavit tracking the language of article 64.01 will satisfy the statute. See Smith, 165 S.W.3d at 362. The court in Smith further held that when the trial court takes judicial notice of the underlying trial record, it must consider evidence in the trial record that would support the motion for testing. See id. at 364. Although our record does not show the trial court took formal judicial notice of the trial record, the trial court's order denying testing does state the trial court considered "the record" in reaching its decision. For purposes of our Anders review, we will examine the trial record for evidence supporting appellant's motion. See Jacobs v. State, 115 S.W.3d 108, 112 (Tex.App.-Texarkana 2003, pet. ref'd) (concluding a reviewing court may consider the underlying trial record to resolve a chapter 64 motion). The State's response shows it had no difficulty identifying the vaginal swab and body hairs as the "biological material" available for DNA testing. The trial record shows the swab and hairs were not subjected to DNA testing before appellant's 1983 trial and that the limited forensic testing that was performed was inconclusive. Thus, we conclude appellant's motion and affidavit, as supplemented by the trial record, sufficiently identifies the "biological evidence" to be tested. See Smith, 165 S.W.3d at 365. See also Bell v. State, 90 S.W.3d 301, 304, 307 (Tex.Crim.App. 2002) (concluding counsel was not ineffective in failing to specify items to be tested because State conceded it possessed the items and the items to test could be identified from the trial record). Even with the benefit of the trial record, however, appellant cannot show that identity was or is at issue or that DNA testing would exonerate him. Regarding the issue of identity, appellant contends M.B.'s identification of him was unreliable because she was assaulted by a hooded stranger wearing a bandanna who ordered her not to look at him. Appellant contends the other victims' identifications are suspect because the extraneous offenses were part of a larger crime spree involving "more than 100 victims" and he alleges some of the victims identified a second suspect. The record does not support appellant's contentions. Three different juries concluded M.B.'s identification of appellant was reliable. Our trial record shows that despite the limited opportunity she had to observe him, M.B. was able to observe appellant's distinctive features. Before seeing appellant's photograph, M.B. provided information for a composite sketch that closely resembles appellant's actual photograph. M.B. did not identify a suspect until appellant's photograph appeared in the third photographic lineup presented to her. Furthermore, other evidence in the record supports M.B.'s identification. Appellant was identified by multiple victims as the perpetrator of a string of sex offenses occurring within a short time period. The victims shown photographic lineups picked two different photographs of appellant as the perpetrator. Appellant's unusually distinctive features virtually eliminate the possibility that the victims misidentified him. Appellant pleaded guilty to committing the other eight offenses. Appellant was arrested in the vicinity where M.B. and several other victims were attacked and he possesses a shirt similar to the shirt described by M.B. The record does not support appellant's contention that there are other suspects. A police detective testified, outside the presence of the jury, that he had been contacted by police in Denton and the Kansas City area who were investigating whether appellant might have committed similar offenses in their jurisdictions. In a letter written to the trial court after it denied testing, appellant attached photocopies of purported clippings from newspapers in Denton and Kansas City. The articles reported appellant was a suspect in these additional offenses and, in each case, the police also were considering other unnamed suspects. Neither appellant nor the State introduced any evidence into the record regarding the outcome of the Denton and Kansas City investigations. In the absence of any actual evidence from either party, the mere commission of similar crimes in other jurisdictions does not create an arguable issue for appeal. Moreover, even if we considered appellant's clippings as evidence, a showing that appellant was a suspect in similar offenses is unhelpful to his case. We conclude the trial court's finding that identity was not and is not at issue is supported by the evidence. Likewise, we agree with the trial court that appellant has not shown by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory test results existed. With regard to the body hairs, the presence of such evidence would do no more than "muddy the waters" surrounding appellant's conviction. See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). The hairs could have been deposited at any time and would only be significant if they implicated appellant in the offense. See id. at 566. Appellant concedes in his pro se response that testing the hairs "might not absolutely exclude [him]." Regarding testing of the swab, the record shows M.B. last had voluntary sexual intercourse about forty hours before she was assaulted. Thus, testing that showed appellant did not contribute to the DNA found on the swab would be exculpatory. See Smith, 165 S.W.3d at 364-65. Unlike Smith, however, the evidence in this case does not reveal whether the assailant even left seminal fluid behind to test. The trial record does not show that M.B.'s assailant ejaculated while assaulting her. Rather the record suggests he did not because he terminated his assault after being interrupted by M.B.'s crying child. The forensic serologist who examined M.B.'s bedspread did not find any seminal fluid stains. Furthermore, the spermatozoa recovered during M.B.'s rape examination were non-motile. The examination was conducted two-to-two-and-one-half hours after M.B. was assaulted. Both the examining physician and the forensic serologist estimated that spermatozoa remain motile for three-to-six hours after insemination. The physician allowed that there could be factors that would influence the duration of motility, but he could not render a scientific opinion on that issue. The forensic serologist testified that the duration of motility could be influenced by the PH of the vaginal vault and the presence of bacteria or fungi. The serologist opined that the seminal fluid could possibly have been deposited within two-or-three hours of collection but could have been deposited as long as twelve-to-fourteen hours before collection. Because the evidence showing DNA testing would be exculpatory is weak while non-forensic evidence overwhelmingly establishes appellant is guilty, appellant has not even arguably shown a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA testing results existed. We overrule appellant's fourth, fifth, and sixth grounds. Error In The State's Response
In his seventh ground, appellant complains the State's response erroneously reported that M.B. had engaged in sexual intercourse within twenty-four hours of the offenses when, in fact, the record shows forty hours. The error does not, by itself, create an arguable issue for appeal. We have reviewed the record using the correct time interval and, for the reasons set forth above, we conclude there is no arguable error. Conclusion
We have reviewed the record, counsel's brief, and appellant's responses. We agree the appeals are wholly frivolous and without merit. We find nothing in the record that might arguably support the appeals. We affirm the trial court's orders denying testing.