Opinion
NUMBER 13-16-00414-CR
03-02-2017
RENE RIVAS JR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Rene Rivas Jr. was convicted of assault, a Class-A misdemeanor, see TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through 2015 R.S.), and sexual assault, a second-degree felony. See id. § 22.011 (West, Westlaw through 2015 R.S.). By two issues on appeal, Rivas argues that the trial court erred in denying his requests for: (1) a court-appointed attorney to assist him in obtaining post-conviction DNA testing; and (2) post-conviction DNA testing. We affirm.
I. BACKGROUND
On October 15, 2009, a jury found Rivas guilty of assault and sexual assault. The trial court sentenced him respectively to one year in county jail and twenty years in Texas Department of Criminal Justice—Institutional Division, the sentences to run concurrently.
Over the next several years, Rivas filed numerous petitions for writ of habeas corpus, all of which were denied except for his request to file an out-of-time appeal. On April 28, 2016, Rivas filed a motion requesting court-appointed counsel to assist him in obtaining post-conviction DNA testing. On May 13, 2016, before the trial court ruled on the motion requesting counsel, Rivas filed another motion requesting post-conviction DNA testing. On July 8, 2016, without a hearing, the trial court denied Rivas's request for court-appointed counsel, stating that he did not present reasonable grounds to appoint counsel. The trial court also denied Rivas's motion for post-conviction DNA testing for failure to meet the statutory requirements. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (West, Westlaw through 2015 R.S.). This appeal ensued.
Rivas requested that the following items be subjected to DNA testing: "(1) pillow casing; (2) bed sheets; (3) comforters; (4) a dress; (5) panties; (6) white panties; (7) anal gel; and (8) all items presented at trial that State had and should have tested for DNA."
II. DISCUSSION
In his first issue, Rivas argues the court erred in denying his motion for court-appointed counsel. In his second issue, Rivas argues that the trial court erred in denying his motion for post-conviction DNA testing.
A. Standard of Review and Applicable Law
"We afford almost total deference both to the trial court's determination of historical fact and to its application of law-to-fact issues that turn on credibility and demeanor." Jacobs v. State, 115 S.W.3d 108, 112 (Tex. App.—Texarkana 2003, pet. ref'd). However, we review de novo other application-of-law-to-fact issues, such as the ultimate issue in post-conviction DNA testing cases: "whether a reasonable probability exists that exculpatory DNA tests would prove innocence." Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
1. Motion for Court-Appointed Counsel
If a convicted person intends to file a motion for post-conviction DNA testing, then the trial court shall provide court-appointed counsel to the applicant, but only if three requirements are met: (1) the applicant must tell the trial court that he or she wishes to submit an application for post-conviction DNA testing; (2) the trial court must find reasonable grounds for the application to be filed; and (3) the court must determine the applicant is indigent. TEX. CODE CRIM. PROC. ANN. art. 64.01(a) (West, Westlaw through 2015 R.S.); see James v. State, 196 S.W.3d 847, 840-850 (Tex. App.—Texarkana 2006, pet. ref'd).
Thus, entitlement to court-appointed counsel in this context is conditioned on the trial court finding, in relevant part, that reasonable grounds exist for filing the motion for post-conviction DNA testing. See Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011).
[W]hether "reasonable grounds" exist for testing necessarily turns on what is required for testing. Basic requirements are that biological evidence exists, that evidence is in a condition that it can be tested, that the identity
of the perpetrator is or was an issue, and that this is the type of case in which exculpatory DNA results would make a difference.Id. at 891.
2. Motion for Post-Conviction DNA Testing
An applicant will be entitled to post-conviction DNA testing if:
1) the court finds that:
A) the evidence:
i) still exists and is in a condition making DNA testing possible; and
ii) 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;
B) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and
C) identity was or is an issue in the case; and
2) the convicted person establishes by a preponderance of the evidence that:
TEX. CODE CRIM. PROC. ANN. art. 64.03(a). The motion requesting court-appointed counsel and the motion requesting post-conviction DNA testing are intertwined. See Gutierrez, 337 S.W.3d at 892. The Texas Court of Criminal Appeals gave the following analogy to illustrate the relative burdens and evidentiary thresholds required to succeed on these two types of motions.A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
An analogy to the Fourth Amendment distinction between "reasonable suspicion" and "probable cause" construct may be helpful: Before appointing an attorney, the trial judge needs "reasonable grounds" to believe that (1) a favorable forensic test is a viable, fair and rational possibility, and (2) such a test could plausibly show that the inmate would not have been convicted. Before ordering testing, the inmate must establish, by a preponderance of the evidence, "probable cause" that he would not have been convicted if exculpatory DNA results are obtained.Id.
Alternatively, one could approach the "reasonable grounds" questions in the opposite direction. The trial judge could simply assume that the result of any proposed DNA testing is "exculpatory" in the sense that the test will prove that the inmate is not the source of that DNA. That is a "favorable" or "exculpatory" test result. But if that "favorable" or "exculpatory" finding would not change the probability that the inmate would still have been convicted, then there are no reasonable grounds to appoint an attorney and no justification for ordering any testing.
B. Analysis
Rivas argues that he met all three requirements to receive court-appointed counsel and that he also met the statutory requirements for the court to order post-conviction DNA testing. The State agrees that Rivas informed the trial court of his intention to submit an application for post-conviction DNA testing and that Rivas is indigent. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1), (3). However, the State contends that Rivas is not entitled to receive court-appointed counsel or post-conviction DNA testing because he did not demonstrate how any potentially exculpatory DNA evidence would have changed the verdict in his case. We agree with the State.
"The bottom line in post-conviction DNA testing is this: Will this testing, if it shows that the biological material does not belong to the defendant, establish, by a preponderance of the evidence, that he did not commit the crime as either a principal or a party?" Id. at 900. In this case, the answer is no. Rivas has not shown "probable cause" by a preponderance of the evidence that he would not have been convicted if exculpatory DNA results had been obtained. Id. at 892 (holding that the convicted person must establish that a favorable DNA test result would "cast doubt upon the validity of the inmate's conviction").
In his motions to the convicting court and in his brief on appeal, Rivas claims in a conclusory fashion that he would not have been convicted if exculpatory DNA tests were obtained. However, a finding of reasonable grounds requires "more than an inarticulate hunch or intuition" to suggest that exculpatory results would have changed the outcome at trial. Id. at 891. Even assuming that the DNA test results were exculpatory, Rivas failed to specifically explain how his outcome of the trial would have varied or whether this is even the "type of case in which exculpatory DNA results would make a difference." See id. at 891. A negative DNA test result, or even identifying a potential third party through DNA test results, does not necessarily establish that the defendant would not have been convicted. See Rivera, 89 S.W.3d at 60 (observing that negative DNA test results, alone, do not always indicate innocence); Baggett v. State, 110 S.W.3d 704, 707 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (holding that DNA tests exhibiting an "inconclusive male pattern" does not independently create a reasonable probability of innocence); see also Gutierrez, 337 S.W.3d at 900 (noting that DNA tests that positively identify a third party do not automatically establish that the defendant did not commit the crime as either a principal or a party).
Rivas did not request a reporter's record of his original trial to be submitted as part of the appellate record, and neither party on appeal discusses in detail what evidence was presented at trial. However, it was Rivas's burden to demonstrate that despite any evidence remaining before the trier of fact, he likely would not have been convicted had exculpatory DNA evidence been obtained. See Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011). He has failed to meet this burden.
At trial, the complainant identified Rivas as the attacker and testified of the offenses that he allegedly committed against her. We defer greatly to the fact-finder's determination of witness credibility, and the jury chose to believe her over Rivas. See Jacobs, 115 S.W.3d at 112; see also Perales v. State, 226 S.W.3d 531, 534 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) ("The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor."). Thus, Rivas failed to demonstrate that any potentially exculpatory DNA evidence would have changed the verdict at trial. See Gutierrez, 337 S.W.3d at 900.
Concluding that Rivas failed to establish how any exculpatory DNA test results would have changed the probability of being convicted, we hold there are no reasonable grounds to appoint an attorney and no justification to order DNA testing. See id. We overrule both of Rivas's issues on appeal.
III. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of March, 2017.