In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-00-00225-CR ______________________________
DONALD RAY BASS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 27505-B
Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross Dissenting Opinion by Chief Justice Cornelius O P I N I O N
Donald Ray Bass was convicted of possessing more than four ounces but less than five pounds of marihuana and sentenced to one year of imprisonment. A deputy sheriff stopped Bass as Bass was driving on Interstate Highway 20 near Longview. After obtaining Bass' consent to search his vehicle, the officer found marihuana in the trunk and arrested him. On appeal, Bass presents one issue for review: whether the trial court erred in overruling his motion to suppress the evidence on the basis the traffic stop was illegal. For the following reasons, we reverse and render a judgment of acquittal.
We review the trial court's ruling on a motion to suppress by an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimonies. We view the evidence in the light most favorable to the trial court's ruling, State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999), and afford almost total deference to the trial court's determination of historical facts which the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856. Because no findings of fact or conclusions of law were filed, we will assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. If the judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 855-56.
The officer stopped Bass without a warrant, and therefore the State bore the burden at the suppression hearing of demonstrating that the stop was reasonable within the totality of the circumstances. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); Russell v. State, 717 S.W.2d 7, 10 (Tex. Crim. App. 1986). To briefly stop and detain an individual for investigative purposes, an officer need only possess reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968). The officer stopped Bass for what he believed was a traffic violation. To justify a traffic stop, the officer must have observed specific objective, articulable facts which, in light of the officer's experience and personal knowledge, together with inferences from those facts, would warrant a reasonable person to believe a traffic violation had occurred. See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997); Valencia v. State, 820 S.W.2d 397, 399 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd).
Bass' argument on appeal is that, even accepting all of the officer's testimony as true, the facts presented do not prove the reasonableness of the stop. Bass contends the sole issue in this case is whether the officer articulated specific facts available to him at the time of the incident to give rise to a reasonable suspicion that Bass had committed a traffic offense, i.e., a violation of Section 545.060(a) of the Texas Transportation Code pertaining to driving within a single lane. (1) The State contends there were two bases for the stop. One was Bass' failure to drive within a single lane. Another was to determine whether Bass was intoxicated or fatigued. Although the State on appeal fails to present substantive argument on the latter basis, we will address both bases.
The officer's testimony about his observations of Bass' driving was as follows:
Q [by Prosecutor] Do you remember coming in contact with someone you later knew as Donald Ray Bass?
A Yes, sir.
Q How did that contact come about?
A I was eastbound on I-20, headed into 31. It was getting close to shift change when I noticed a vehicle in front of me was swerving within its lane.
Q Okay. Once you had noticed him swerving, did he ever go outside his marked lanes?
A Yes, sir, he did.
Q And do you remember how many times?
A No, sir, I do not.
Q Okay. Were there other vehicles around you at that time?
A Yes, sir. There was traffic on I-20.
Q Okay. Once you saw this person failing to maintain a single lane, what did you do next?
A I stopped the vehicle.
Q All right. Do you remember where you stopped it?
A It was just west of the 31 exit that runs between Longview and Kilgore.
. . . .
Q . . . And what took place at the back of the vehicle?
A I began talking to the individual, just, you know, trying to find out if he was tired, or intoxicated, or what might be causing him to swerve within his lanes.
. . . .
Q . . . How long did you follow him?
A I had been following the subject from [Highway] 135. New 135 to that area there is approximately two and a half miles -- three miles.
Q All right. And that's when you saw him failing to maintain a single lane?
A Yes, sir.
Q And do you know -- were y'all being passed by vehicles, or was he speeding, were y'all passing vehicles, or do you know?
A We were not speeding, and I can't recall whether we were being passed by vehicles or not.
Q But you know that there were other vehicles around on the highway?
A Oh, yes, sir. Yes, sir.
. . . .
Q [by Defense Counsel] Was the basis for your stop [sic] the Defendant in this case -- his failure to maintain a single lane?
A Yes, sir.
. . . .
Q Officer, did you observe any car trying to pass my client at the time that he attempted or actually changed lanes?
A In the distance that we traveled, yes, sir. There were several vehicles that passed us.
Q All right. Did you observe any incident that came close to causing an accident or was unsafe in any manner in that regard?
A No, sir, I guess not.
We first discuss the issue of whether this testimony reveals specific, articulable facts sufficient to give rise to a reasonable suspicion that Bass was intoxicated. The officer testified Bass was swerving within his lane. He followed Bass for two and one-half to three miles. On appeal, the State seems to assume by inference that, because the officer followed Bass for about three miles, he observed Bass swerving for that distance. The officer said Bass was not speeding.
Police officers may justifiably make inferences from visual observations based on their experiences in law enforcement. Here, however, the officer did not testify that, based on his experience, he subjectively (2) suspected Bass of being intoxicated. Nor did he testify that anything about the objective circumstances-time, location, the vehicle's movement, etc.-would have led a reasonable officer to suspect Bass was intoxicated, except Bass' swerving. From the testimony, we conclude the State failed to carry its burden to show articulable facts that demonstrate the reasonableness of the stop on the basis of a suspicion that Bass was intoxicated.
The second potential basis for the traffic stop was the officer's observance of what he believed was a traffic violation. It is well settled that a peace officer is empowered to stop motorists when that officer reasonably believes he or she has observed a traffic violation. Valencia, 820 S.W.2d at 399. Specifically, the State alleges the officer reasonably believed Bass violated Section 545.060(a) of the Transportation Code. This statute provides that an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999). In other words, a violation of Section 545.060(a) occurs only when a vehicle fails to stay within its lane and that movement is not safe or is not made safely. State v. Cerny, 28 S.W.3d 796, 800 (Tex. App.-Corpus Christi 2000, no pet.); Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.-Austin 1998, pet. ref'd); see also Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
The issue before us is whether the officer had a reasonable suspicion, based on articulable facts, that Bass failed to keep his vehicle within its lane and did so in an unsafe manner. We find the State failed to meet its burden because it failed to show articulable facts to demonstrate the reasonableness of the stop on the basis of a suspicion Bass violated Tex. Transp. Code Ann. § 545.060(a).
There is no testimony from the officer that Bass' lane change occurred in an unsafe manner. The officer did not articulate facts sufficient to support a reasonable suspicion to detain Bass. See Cerny, 28 S.W.3d at 801. When asked, "Did you observe any incident that came close to causing an accident or was unsafe in any manner in that regard," the officer answered, "No, sir, I guess not." (Emphasis added.) The officer testified he saw no unsafe behavior. Though the officer testified that in the distance they traveled several vehicles passed them, he never testified that when the lane change occurred there were cars passing Bass or that Bass' lane change was unsafe. See Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.-Texarkana 2000, pet. granted) (testimony established driver failed to maintain single lane, but failed to establish movement made unsafely).
Bass properly relies on Hernandez, 983 S.W.2d 867, and similar cases. In Hernandez, as in this case, the defendant made only one movement out of his lane, and the officer testified there was nothing about that particular movement that was unsafe or improper. In this case, we have no testimony Bass crossed out of his lane more than once or that when he did so it was in an unsafe manner. The relevant testimony on this point was as follows:
Q Okay. Once you had noticed him swerving, did he ever go outside his marked lanes?
A Yes, sir, he did.
Q And do you remember how many times?
A No, sir, I do not.
The testimony indicates that, once the officer saw Bass failing to maintain a single lane he pulled him over. There is no indication regarding the number of times Bass actually left his lane of traffic. There is nothing in the record to indicate this lane change was any less safe than any other lane change made on highly traveled highways.
Other cases on which Bass relies involve momentary "drifting" of a car over the line when there were no other circumstances showing such a momentary movement was unsafe. In Ehrhart, the court of appeals reversed the trial court's denial of a motion to suppress. Ehrhart v. State, 9 S.W.3d 929, 931 (Tex. App.-Beaumont 2000, no pet.). The court found there was no testimony from the officers that Ehrhart's "weaving" was unsafe or dangerous. Id. at 930. "As the record contains no evidence the movement was unsafe or dangerous, an actual traffic violation did not occur." Id.; see also Hernandez, 983 S.W.2d at 870; Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App.-Houston [14th Dist.] 1993, no pet.). Because there is no evidence in this case the lane change was unsafe, there was no actual traffic violation and no reasonable suspicion, based on articulable facts, Bass failed to keep his vehicle in its lane and did so in an unsafe manner.
We find the trial court abused its discretion in overruling Bass' motion to suppress. For all of the reasons stated, we reverse and render a judgment of acquittal.
Donald R. Ross
Justice
DISSENTING OPINION
To briefly stop and detain an individual for investigative purposes, an officer need only have reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 1884 (1968). The deputy stopped Bass for what he reasonably believed was a traffic violation. To justify a traffic stop, the officer must have observed specific objective, articulable facts which, in light of the officer's experience and personal knowledge, and together with inferences from those facts, would warrant a reasonable person to believe that a traffic violation had occurred. Valencia v. State, 820 S.W.2d 397, 399 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd).
Bass' argument on appeal is that, even accepting all of the deputy's testimony as true, the facts presented do not prove the reasonableness of the stop. Bass contends the sole issue in this case is whether the deputy articulated specific facts available to him at the time of the incident to give rise to a reasonable suspicion that Bass had committed a traffic offense, i.e., a violation of Section 545.060(a) of the Texas Transportation Code pertaining to driving within a single lane. (3) The State contends there were two bases for the stop. One was Bass' failure to drive within a single lane. Another was to determine whether Bass was intoxicated or fatigued.
The deputy's testimony about his observations of Bass' driving was as follows:
Q [by Prosecutor] Do you remember coming in contact with someone you later knew as Donald Ray Bass?
A Yes, sir.
Q How did that contact come about?
A I was eastbound on I-20, headed into 31. It was getting close to shift change when I noticed a vehicle in front of me was swerving within its lane.
Q Okay. Once you had noticed him swerving, did he ever go outside his marked lanes?
A Yes, sir, he did.
Q And do you remember how many times?
A No, sir, I do not.
Q Okay. Were there other vehicles around you at that time?
A Yes, sir. There was traffic on I-20.
Q Okay. Once you saw this person failing to maintain a single lane, what did you do next?
A I stopped the vehicle.
Q All right. Do you remember where you stopped it?
A It was just west of the 31 exit that runs between Longview and Kilgore.
. . . .
Q . . . And what took place at the back of the vehicle?
A I began talking to the individual, just, you know, trying to find out if he was tired, or intoxicated, or what might be causing him to swerve within his lanes.
. . . .
Q . . . How long did you follow him?
A I had been following the subject from [Highway] 135. New 135 to that area there is approximately two and a half miles -- three miles.
Q All right. And that's when you saw him failing to maintain a single lane?
A Yes, sir.
Q And do you know -- were y'all being passed by vehicles, or was he speeding, were y'all passing vehicles, or do you know?
A We were not speeding, and I can't recall whether we were being passed by vehicles or not.
Q But you know that there were other vehicles around on the highway?
A Oh, yes, sir. Yes, sir.
. . . .
Q [by Defense Counsel] Was the basis for your stop [sic] the Defendant in this case -- his failure to maintain a single lane?
A Yes, sir.
. . . .
Q Officer, did you observe any car trying to pass my client at the time that he attempted or actually changed lanes?
A In the distance that we traveled, yes, sir. There were several vehicles that passed us.
Q All right. Did you observe any incident that came close to causing an accident or was unsafe in any manner in that regard?
A No, sir, I guess not.
I conclude that the evidence shows the officer had a reasonable belief, supported by articulable, objective facts, that Bass committed a traffic violation. It is well settled that a peace officer is empowered to stop motorists when he reasonably believes he has observed a traffic violation. Valencia v. State, 820 S.W.2d at 399. Specifically, the State alleges that the deputy reasonably believed Bass violated Section 545.060(a) of the Transportation Code. This statute provides that an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999). In other words, a violation of Section 545.060(a) occurs only when a vehicle fails to stay within its lane when such movement cannot be made safely. Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.-Austin 1998, pet. ref'd); see also State v. Cerny, 28 S.W.3d 796, 800 (Tex. App.-Corpus Christi 2000, no pet.); Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
The issue before us is whether the officer had a reasonable suspicion, based on articulable facts, that Bass failed to keep his vehicle within its lane when it was unsafe to do so. The time of the incident given on the offense report was 11:45 p.m. In addition to the testimony described above, the officer testified there were other vehicles around them and that several vehicles had passed them. It is true that the officer did not testify in so many words that Bass moved out of his lane of traffic when it was unsafe to do so. However, he did testify that Bass was swerving, that cars had passed them both, and that there was traffic around them. I conclude that a reasonable officer observing a driver "swerving" between lanes on a heavily traveled interstate highway late at night when cars are passing the vehicle and traffic is around him, may reasonably believe that the driver is failing to maintain a single lane when it is unsafe to do so.
The officer did testify on cross-examination that he did not see any incident that came close to causing an accident or that was unsafe in any manner. However, that testimony may be reasonably construed to mean that the officer did not see a near accident or incident. It is not necessary to actually see an accident or even to see a near accident to know that a driver is driving in an unsafe manner. Nor is it necessary for the officer to use the magic words "unsafe manner" so long as the articulable facts he observes justify a reasonable belief that the driver is moving out of the lane when it is unsafe to do so. Moreover, the trial court was authorized to resolve any possible inconsistencies in the officer's testimony.
Bass relies on Hernandez v. State, 983 S.W.2d 867 (Tex. App.-Austin 1998, pet. ref'd), and similar cases. These cases are distinguishable from our case. For example, in Hernandez, the defendant made only one movement out of his lane, and the officer testified there was nothing about that particular movement that was unsafe or improper. Other cases on which Bass relies involve the momentary "drifting" of a car over the line when there were no other circumstances showing that such a momentary movement was unsafe. Other cases on which Bass relies, such as State v. Cerny, 28 S.W.3d 796 (Tex. App.-Corpus Christi 2000, no pet.); State v. Arriaga, 5 S.W.3d 804 (Tex. App.-San Antonio 1999, pet. ref'd); and State v. Tarvin, 972 S.W.2d 910 (Tex. App.-Waco 1998, pet. ref'd), are driving while intoxicated cases.
We must remember that it is not necessary for the State to prove there was an actual violation of the law. It is only necessary that the officer have specific, objective facts he observes that lead him to reasonably believe a traffic violation has occurred or is occurring. Drago v. State, 553 S.W.2d 375 (Tex. Crim. App. 1977); Powell v. State, 5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999, pet. ref'd); Edgar v. Plummer, 845 S.W.2d 452 (Tex. App.-Texarkana 1993, no pet.); Valencia v. State, 820 S.W.2d 397.
I conclude that the trial court properly overruled Bass' motion to suppress. Therefore, I would affirm the judgment.
William J. Cornelius
Chief Justice
Date Submitted: October 24, 2001
Date Decided: December 21, 2001
Publish
1. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999) provides:
(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can
be made safely.
2. On a motion for rehearing, the State contends this case is inconsistent with our
holding in Corbin v. State, 33 S.W.3d 90 (Tex. App.-Texarkana 2000, pet. granted). We
disagree. The State contends we held that, in determining whether a traffic stop is
reasonable, an objective standard is used. This was not our holding in Corbin. We stated,
"In determining whether the intrusion was reasonable, an objective standard is applied.
The question is whether the facts available to the officer at the moment of the seizure or
search would lead a person of reasonable caution to believe that the action taken was
appropriate." Id. at 92.
The State also contends this case is factually similar to Corbin. In Corbin we found
the officer could not reasonably rely on Section 545.060(a) to justify the stop, just as we
have in this case. We did uphold the stop in Corbin based on the community caretaking
function of law enforcement in Texas. The State has waived the community caretaking
argument in this case by failing to raise it at the trial court level or on appeal. Even if the
State had properly made this argument, the facts of Corbin and this case are
distinguishable. In Corbin, the officer testified he stopped the car to determine whether
Corbin was sleepy or intoxicated and provided articulable facts to support his reasonable
belief that Corbin might be in need of assistance. Id. at 94. In Corbin, the totality of the
circumstances supported the officer's reasonable suspicion. Corbin was driving alone on
an isolated stretch of interstate highway going twelve miles under the speed limit when he
left his lane and traveled on the shoulder for about twenty feet. The testimony also
indicated that, had Corbin left his lane shortly after he did, he could have possibly hit
concrete columns at a particular overpass. In this case, the testimony does not provide
any such supporting articulable facts.
3. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999) provides: (a) An operator on a roadway divided into two or more clearly
marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single
lane; and (2) may not move from the lane unless that movement can
be made safely.
='text-align:justify;text-justify:inter-ideograph; mso-pagination:widow-orphan'>
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00186-CR
______________________________
JERRARD MCGARY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 09F0377-005
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Convicted in 1997 of murdering[1] his wife, Jerrard McGary has most recently had the Fifth Judicial District Court in Bowie County, Texas, deny what appears to be McGarys third motion[2] to have DNA testing done on evidence connected to the crime. McGary appeals pro se. We affirm the ruling of the trial court because (1) McGary has not shown that, even if the desired DNA evidence tested in his favor, it would exculpate him; (2) the trial court denied McGarys latest DNA motion using both prior and current statutory standards; (3) the trial court could have reasonably found lack of reasonable grounds to appoint a new attorney for McGary; and (4) we may not address McGarys complaint concerning 2007 trial testimony.
At his 1997 trial, McGary essentially argued self-defense: he stated that his wife attacked him with a kitchen knife; and, while he was trying to take the knife away from her, she was cut several times. He stated that, when he left the house shortly thereafter, she was alive. Now, thirteen years later, he posits that some unknown boyfriend may have then appeared after he left and delivered the fatal blow. After considering McGarys motion to appoint an expert and to order DNA testing, the trial court denied the motion.
(1) McGary Has Not Shown that, Even if the Desired DNA Evidence Tested in His Favor, It Would Exculpate Him
McGary contends that the trial court erred by failing to order the State to deliver the evidence containing the testable material to the court or to explain why it could not be delivered. He argues that the State acted in bad faith, as demonstrated by its direction to the Texarkana Crime Laboratory to destroy the evidence, and by its failure to adequately explain its inability to deliver the evidence.
McGary correctly points out the statutes requirement that, on receipt of such a motion, the trial court is to direct the State either to deliver the evidence to the court or to explain why the State cannot. See Tex. Code Crim. Proc. Ann. art. 64.02(a)(2) (Vernon 2006). But McGarys complaint that the State did not respond in this instance was waived since the complaint was not raised with the trial court. Shannon v. State, 116 S.W.3d 52, 5455 (Tex. Crim. App. 2003); Sepeda v. State, 301 S.W.3d 372, 375 (Tex. App.Amarillo 2009, no pet.). Although the record in this appeal contains no copy of any response by the State, the first order denying testing clearly recites that the State had provided a response and that the State had informed the court that, as no appeal was filed after McGarys conviction, the police department destroyed evidence in their possession associated with this case including all vaginal swabs and any blood evidence.
Unfortunately, that information provided to the trial court by the State appears to be at least partially incorrect. Some of the evidencepreviously sent for testing and not returned to the Stateapparently has not been destroyed. To the second motion for DNA testing, McGarys counsel attached a letter, dated March 2, 2006, from the Southwest Institute for Forensic Sciences (SIFS) in Dallas, Texas, which listed several biological specimens that had been transferred there for analysis and that were still there.
In the most recent motion for DNA testing, McGary asked the court to order DNA testing on semen found in the victims vagina; the bite mark on the victims breast; blood said to have been detected on McGarys pants, shirt, and right shoe; and hairs or fibers collected in coin envelopes. Unlike the first motion, the current motion is supported by an affidavit that sets out the type of evidence involved and what McGary believes to be its current location and the chain of custody related to the items.
Article 64.03(a)(1)(A) provides that forensic DNA testing may be ordered only 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; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(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.
Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2009). While some of the elements may arguably be satisfied,[3] at least one elementshowing that McGarys hoped-for DNA results would net him an acquittalfails.
McGary now posits that his wife may have had an unidentified boyfriend who came by the house and finished stabbing her to death almost immediately after McGary left her cut and bleeding, but alive. Although this chain of events and the existence of a murderous boyfriend are theoretically possible, the likelihood of this combination of factors, based on analysis of the information provided, is miniscule. Indeed, it is very little more than pure speculation. Also, the evidence McGary seeks to have tested would not exculpate McGary, but may merely place an added person at the scene of the crime.
In Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002), the Texas Court of Criminal Appeals reviewed a claim similar to McGarys in which the appellant sought to demonstrate the possibility of his innocence by proving that someone elses DNA was at the scene of the crime. The court determined in Bell that, without more, the presence of another persons DNA at the crime scene would not constitute affirmative evidence of the appellants innocence and that, therefore, the denial of DNA testing did not violate the appellants due-process rights. Id. at 306. Expanding on that reasoning, the Texas Court of Criminal Appeals has since pointed out that the identity requirement in Chapter 64 relates to the issue of identity as it pertains to the DNA evidence. Therefore, if DNA testing would not determine the identity of the person who committed the offense or would not exculpate the accused, then the requirement of Article 64.03(a)(2)(A) has not been met. Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008).
Our task under Chapter 64 of the Texas Code of Criminal Procedure is to determine whether a defendant would have been convicted if the results of requested DNA testing are exculpatory. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2). For purposes of this inquiry, we assume that the results of the DNA testing would prove favorable to appellant. See Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008); In re Morton, No. 03-08-00585-CR, 2010 WL 45866 (Tex. App.Austin Jan. 8, 2010, no pet.).
Moreover, our own review of the record supports the trial courts conclusion that there existed much less than a reasonable probability that testing would produce a different outcome. Even if the testing provided the results suggested by McGary, that alone falls short of creating a reasonable inference that someone else killed the victim, given the circumstances here. See Prible, 245 S.W.3d at 470 (mere presence of another persons DNA at crime scene does not constitute affirmative evidence of defendants innocence); see also Sepeda, 301 S.W.3d at 376.
In short, evidence of another persons DNA at the crime scene, in addition to McGarys, would not provide exculpatory evidence for McGary. Thus, even if the evidence were retested and determined to contain another persons DNA, it would not establish by a preponderance of the evidence that McGary would not have been convicted. Indeed, it is equally arguable that proof of the existence of a boyfriend would militate in favor of convicting McGary as the furious husband who killed his straying spouse. We overrule this contention of error.
(2) The Trial Court Denied McGarys Latest DNA Motion Using Both Prior and Current Statutory Standards
McGary contends that the trial court erred by denying his 2009 DNA motion using the old standards it had employed in denying his earlier motion.[4] He argues this issue by detailing each issue set out by the trial court in its order ruling on the prior motion, in which the court explained the procedures and requirements involved in McGarys attempt to obtain DNA testing.
The Order Denying Petitioners Second Motion for DNA Testing is dated September 26, 2009. In that order, the court points out that the motion is identical to the one previously denied in a detailed orderand that McGary had dismissed his appeal from the ruling denying the earlier motion. From this Courts records, we note that the prior appeal was dismissed at McGarys request September 10, 2009.[5] The second motion was filed August 26, 2009, while McGarys appeal from the denial of the preceding motion was still pending with this Court.
Neither the order that is the subject of this appeal, nor its predecessor that is referenced by that order, were decided solely under the former statute. The trial court explained its ruling clearly reflecting a decision made based on both old and new versions of the statute. McGarys complaint is refuted by the trial courts order. We overrule this issue.
(3) The Trial Court Could Have Reasonably Found Lack of Reasonable Grounds to Appoint a New Attorney for McGary
McGary argues that, before denying his motion for DNA testing, the trial court erred by failing to appoint counsel, as required by Article 64.01(c) of the Texas Code of Criminal Procedure. This motion raised the same issues as did his prior motion for DNA testing. This motion contained some additional information and an affidavit. Nevertheless, the court had seen and ruled on these issues and arguments before. The previous motion for DNA testing was presented by retained counsel and was denied. Appointed counsel then filed a brief stating that the appeal from that ruling was frivolous; and, on demand by the appellant, that appeal was withdrawn.
The trial court is required to appoint counsel if one is requested by an indigent and the court finds reasonable grounds for a motion to be filed. Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2009).[6] The appellant had already sought DNA testing on these grounds, lost, and dismissed his appeal, which means the prior ruling against him had become final. This careful trial court had delineated, in exhaustive detail, multiple grounds for denying the motion. Although some procedural frailties pointed out by the trial court were corrected, the underlying substance of the motion remained unaltered. Under these facts, it was within the authority of the trial court to determine that the motion was not based on reasonable grounds.[7] Finding no error, we overrule this contention.
(4) We May Not Address McGarys Complaint Concerning 2007 Trial Testimony
In his appellate brief seeking DNA testing, McGary also attacks the admission of testimony by Detective Bill Eubanks at his 1997 trial. He argues that the detectives testimony about the crime scene and blood found there was inadmissible and, in a wandering discussion, complains about the detectives lack of personal knowledge about the blood types involved, an unidentified serologists report that was not introduced, but that was referred to by the detective, and the lack of knowledge of DNA testing. None of these complaints has any relationship to the motion or ruling now on appeal. They are an attempt to now raise issues that would have been appropriate only in a direct appeal from the 1997 conviction. We may not address them.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 1, 2010
Date Decided: July 15, 2010
Do Not Publish
[1]After his conviction, Jerrard McGary was sentenced to seventy-five years imprisonment.
[2]The first case involving McGary that was filed with this Court was his petition for writ of mandamus, filed October 8, 2008, in which he asked this Court to instruct the trial court to rule on his motion for DNA testing so that it could proceed.
As we noted in that case, it appears that McGary had filed a motion for DNA testing in 2001, and counsel had been appointed in February 2002. That counsel took no action. In December 2002, and again in January 2003, McGary pointed this out by letter and asked for replacement counsel. That request was denied. It appears that nothing happened thereafter, until McGarys family retained counsel. That attorney, James Volberding, on February 6, 2007, filed a revised motion to appoint a DNA expert and to order DNA testing. A hearing was conducted October 9, 2007, and the State did not oppose the motion. Supplemental briefing was requested and provided before the end of 2007. No ruling was issued, despite two letters written to the judge, in March and May 2008, requesting a ruling.
We conditionally granted the mandamus November 8, 2008, and the trial court issued a ruling, containing a lengthy opinion, denying the motion shortly thereafter. On December 5, 2008, McGary appealed from that ruling.
McGarys next counsel, Alwin Smith, filed a brief March 9, 2009, in which he stated that, in his professional opinion, the appeal was frivolous. After being granted four extensions of time to file his pro se response, on September 3, 2009, McGary filed a motion requesting withdrawal of his appeal. We granted his request and dismissed the appeal. See McGary v. State, cause number 06-08-00226-CR.
It appears that, during the pendency of that appeal, McGary filed another motion for DNA testing. The trial court denied his motion, as effectively a duplicate of his prior (2007) motion. The trial court correctly pointed out that the motion presented in 2007 had been decided and that the ruling was final. However, we also note that the statutory authority for DNA testing was amended substantially, with an effective date of September 1, 2007. That means that the new motion would be analyzed under different rules than was the one filed before the amendments.
[3]While this record suggests that some of the evidence still exists, we have no indication whether it is in a condition making DNA testing possible. It would seem that chain of custody does not present a problemthe remaining items have been traced into the hands of SIFS. While identity was not an issue at trialMcGary admitted stabbing his wifehe now is attempting to show through DNA testing that his stabbings did not kill her, that is, that the identity of the real killer is in issue now. McGarys arguments suggest he would maintain that his testing request was not made for unreasonable delay.
[4]In attempting to determine the actual nature of McGarys current complaint, we refer directly to McGarys brief, which sets out this issue as follows:
Trial Court errored [sic] in denying Appellants Motion for DNA Testing With Brief In Support under the June 2001 DNA standards when in fact his Motion for DNA Testing With Brief In Support was filed under the September 1, 2003 standards of Chapter 64, of Tex. Code of Crim. Procedure.
McGary reiterates the nature of his claim as set out above at the beginning of his discussion of his second point.
[5]McGary v. State, cause number 06-08-00226-CR. Our mandate issued November 4, 2009.
[6]An order denying a request for appointed counsel to assist in filing a motion for post-conviction DNA testing is not immediately appealable, and is properly raised on denial of the motion filed without assistance of counsel. Gutierrez v. State, 307 S.W.3d 318, 322 (Tex. Crim. App. 2010).
[7]See id.; Bates v. State, No. 01-08-00580-CR, 2010 WL 1839941 (Tex. App.Houston [1st Dist.] May 6, 2010, no pet. h.); Blake v. State, 208 S.W.3d 693, 695 (Tex. App.Texarkana 2006, no pet.).