ACCEPTED
12-14-00319-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
2/2/2015 1:00:03 PM
CATHY LUSK
CLERK
JOHN D. REEVES
ATTORNEY AT LAW
FILED IN
12th COURT OF APPEALS
1007 Grant Ave•Lufkin, Texas 75901 TYLER, TEXAS
(936) 632-1609 telephone • (936) 632-1640 facsimile
2/2/2015 1:00:03 PM
Email: tessabellus@yahoo.com CATHY S. LUSK
Clerk
February 2, 2015
12 th Court of Appeals
Attn: Cathy S. Lusk, Clerk
1517 West Front Street, Suite 354
Tyler, Texas 75702
Re: Case Number 12-14-00319-CR
Trial Court Case Number CR 22090-AA
Style: Demetric Lewis Alfred
v.
The State of Texas
RE: Appellant’s Brief –Post Conviction DNA Testing
Dear Madam,
Following please find for filing Appellant’s Brief.
Thank you for your courtesies.
Sincerely,
/S/ John D. Reeves
John D. Reeves
E file cc. April Ayers-Perez, Asst. DA, Angelina County, P.O. Box 908, Lufkin,
Texas 75901
_________________________________________________________________
12-14-00319-CR
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS
____________________________________________________________
Demetric Lewis Alfred
V.
The State of Texas
______________________________________________________________
APPEAL FROM THE 159th DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
Cause No. CR-22090-AA
BRIEF OF APPELLANT
DEMETRIC LEWIS ALFRED
________________________________________________________________
Respectfully, Submitted:
/S/ John D. Reeves
JOHN D. REEVES
Attorney at Law
1007 Grant Ave.
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
Email: tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties:
Appellant in Trial Court:
Demetric Lewis Alfred
TDCJ# 01065183
Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel:
Appellant:
JOHN D. REEVES Trial Stephen C. Taylor
Attorney at Law Attorney at Law
1007 Grant Ave P.O. Box 293
Lufkin, Texas 75901 Conroe, Texas 77305
Phone: (936) 632-1609 Phone: 800 223-8308
Fax: (936) 632-1640 SBOT: 19723380
SBOT # 16723000
Appellee:
April Ayers-Perez Trial Art Bauereiss
Asst. Angelina County District Atty. Angelina County District Atty.
P.O. Box 908 P.O. Box 908
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: 936-632-5090 Phone: 936/ 632-5090
SBOT# 24090975 SBOT# 01921800
ii
TABLE OF CONTENTS
Page:
IDENTITY OF PARTIES AND COUNSEL…………………………………….ii
TABLE OF CONTENTS……………………………………………………....... iii
INDEX OF AUTHORITIES……………………………………………..………iv
STATEMENT OF THE CASE…………………………………………….…..... 1
STATEMENT OF JURISDICTION…………………………………………..…3
ISSUE PRESENTED..............................................................................................3
STATEMENT OF FACTS ……………………………………………………….3
SUMMARY OF THE ARGUMENT …..…………………………………...........4
ARGUMENT……………………………………………………………………..5
CONCLUSION AND PRAYER……………………………………………….. 10
CERTIFICATE OF COMPLIANCE…………………………………………… 11
CERTIFICATE OF SERVICE…………………………………………………..11
iii.
INDEX OF AUTHORITIES
Page:
Texas Cases
Blacklock v. State, 235 S.W. 3d 231 (Tex. Crim. App. 2007) ………………….9
Routier v. State, 273 S.W 3d 241 (Tex. Crim. App. 2008) ………………….….8
Smith v. State 165 S.W.3d 361, 364 (Tex. Crim. App. 2005) ………………….10
RULES AND OTHER AUTHORITIES
Tex. Code. Crim. Pro. Ann. Chpt. 64 (2012) …………………….…5,6,7,8,10
iv.
_____________________________________________________________
12-14-00319-CR
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS
________________________________________________________________
Demetric Lewis Alfred
v.
The State of Texas
APPEAL FROM THE 159th DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
Cause No. CR-22090-AA
BRIEF OF APPELLANT
DEMETRIC LEWIS ALFRED
TO THE HONORABLE COURT OF APPEALS;
STATEMENT OF THE CASE
Appellant originally pled guilty to the offense of Capital Murder on October
15, 2001. Appellant was sentenced to life in the Texas Department of Criminal
Justice- Institution Division. (Supp. CR Vol. 1, p. 6, 14-15) On March 27, 2013 the
appellant requested the appointment of Counsel to assist in obtaining an Order for
Post-Conviction DNA testing pursuant to Tex. Code. Crim. App. Ann., art. 64
(Vernon Supp. 2012) (Supp. CR p. 12) After a review of Appellants
“Memorandum Regarding Applicant’s Request for Post-Conviction DNA Testing”
filed on September 9th, 2014 the trial court on September 12, 2014, denied granting
appellant’s request. (Supp. CR. Vol. 1, p. 21-33) Appellant filed a pro se notice of
appeal on October 23, 2014 and claimed indigency. (Supp. CR Vol. 1, p. 34-42)
Subsequently, this court entered an Order on December 14, 2011, ordering the trial
court to conduct a hearing and to determine whether: (1) Appellant is indigent and
entitled to the appointment of counsel on appeal ; (2) Appellant has sufficient
funds to retain counsel; or (3) Appellant desires to represent himself on appeal.
(Supp. CR p.13-14) The trial court conducted a hearing on December 12th, 2014
and determined the appellant wished to pursue an appeal, was indigent, and wished
to have appointed counsel on appeal. (RR Vol. 1 p. 1-4) On December 12th, 2014
the trial court made “Findings of Fact Regarding Docketing Statement” and
appointed John D. Reeves to represent appellant. (Supp. CR p. 15-17) A Docketing
Statement was filed by the appellant Pro Se and received by this court on
December 8th, 2014.
2.
STATEMENT OF JURISDICTION
Pursuant to this Court’s order and the trial court findings this court has jurisdiction.
Trial Court certification was performed by a hearing, finding of facts and an order
signed by the trial court on December 12th, 2014 which gave the appellant the right
to appeal the trial court’s denial of his request for Post-Conviction DNA testing.
(Supp. CR Vol. 1, p. 15-17)
ISSUE PRESENTED
1. The trial court erred in denying appellants motion for post-conviction
DNA testing.
STATEMENT OF FACTS
Appellant originally pled guilty to the offense of Capital Murder on October
15, 2001. Appellant was sentenced to life in the Texas Department of Criminal
Justice- Institution Division. (Supp. CR Vol. 1, p. 6, 14-15) On March 27, 2013 the
appellant requested the appointment of Counsel to assist in obtaining an Order for
Post-Conviction DNA testing pursuant to Tex. Code. Crim. App. Ann., art. 64
(Vernon Supp. 2012) (Supp. CR p. 12) After a review of Appellants
“Memorandum Regarding Applicant’s Request for Post-Conviction DNA Testing”
filed on September 9th, 2014 the trial court on September 12, 2014, denied granting
3.
appellant’s request. (Supp. CR. Vol. 1, p. 21-33) Trial counsel’s memorandum is
incorporates the history of the items of evidence seized by law enforcement which
were available at trial. (Supp. CR. Vol. 1. p. 24-27) This listing includes a hammer
and a jacket. (Supp. CR. Vol. 1 p. 24) In addition, the memorandum lists the items
which were submitted to the Southwestern Institute of Forensic Sciences and the
results. (Supp. CR. Vol. 1, p. 26,-30) This includes the hammer and the jacket.
The testing results show item 10 which is the hammer found a “presumptive test
for blood as positive. The blood detected upon item 14, the jacket, was not
conclusive for being human blood. (Supp. CR Vol. 1 p. 30) Trial counsels
memorandum to the trial court concluded that appellant did not have a right to post
conviction DNA testing because appellant cannot show “by a preponderance of the
evidence that he would not have been convicted had any exculpatory results
generated by the proposed testing been available at the time of his trial. “ (Supp.
CR Vol. 1 p. 31) The trial court agreed with the finding suggested in trial counsels
memorandum and denied post conviction DNA testing. (Supp. CR Vol. 1 p. 33)
SUMMARY OF THE ARGUMENT
Appellant argues that the trial erred in denying his motion for post
conviction DNA testing pursuant to Tex. Code. Crim. Pro. Ann. Art. 64. He
specifically requests testing for a jacket and a hammer. He argues these two items
4.
by a preponderance of the evidence could show exculpatory results exonerating
him. The victim died as a result of blows to the head having occurred due to an
object that “was perfectly round half- circle.” The description of the fracture to the
victim’s skull is consistent with the use of a hammer. (Supp. CR Vol. 1 p. 23) The
item is in existence, was tested and had a presumptive test for blood. (Supp. CR
Vol. 1 p. 23-30) Secondly, the jacket is preserved was tested and was inconclusive
for the presence of human blood. (Supp. CR. Vol. 1, p. 30) Each of these items
could exculpate the appellant.
ARGUMENT
Appellant argues that the evidence he requests to be tested is a jacket and
hammer identified as submission items 10 (hammer) and 14 ( jacket) which was
denied by the trial court.
Tex. Code. Crim. Pro. Ann. (2012) CHPT. 64
Art. 64.01. MOTION. (a) In this section, "biological material":
(1) means an item that is in possession of the state and that contains
blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily
fluids, or other identifiable biological evidence that may be suitable for forensic
DNA testing;
(a-1) A convicted person may 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.
5.
(b) The motion may request forensic DNA testing only of evidence
described by Subsection (a-1) that was secured in relation to the offense that is the
basis of the challenged conviction and was in the possession of the state during the
trial of the offense, but:
(2) although previously subjected to DNA testing, can be subjected
to testing with newer testing techniques that provide a reasonable likelihood of
results that are more accurate and probative than the results of the previous test.
Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court may
order forensic DNA testing under this chapter 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.
(b) A convicted person who pleaded guilty or nolo contendere or, whether
before or after conviction, made a confession or similar admission in the case may
submit a motion under this chapter, and the convicting court is prohibited from
finding that identity was not an issue in the case solely on the basis of that plea,
confession, or admission, as applicable.
(c) If the convicting court finds in the affirmative the issues listed in
Subsection (a)(1) and the convicted person meets the requirements of Subsection
(a)(2), the court shall order that the requested forensic DNA testing be conducted.
Appellant is complaining of two items which are a jacket and a hammer. A
search of Appellants residence yielded a pair of “tennis shoes” and a “jacket with
6.
dried blood spots.” The stains on the tennis shoes and jacket tested positive for
blood. A search of the vacant lot behind Appellant’s residence yielded a “silver in
color hammer with black rubber grip.” (Supp. CR Vol. 1, p. 24)
The jacket was submission item14 and the hammer submission item10
which were presented to the Southwestern Institute of Forensic Sciences
Laboratory. (Supp. Vol. 1, CR p. 26) As of September 8th, 2014 the two items are
still in the custody of the Lufkin Police Department as submission items 10 and 14.
The two items that the appellant desires testing are as shown evidence which was
secured in relation the offense. The indictment alleges that appellant “caused the
death of Theory Green, by striking Theory Green in the head with an object
unknown to the Grand Jury, while in the course of committing or attempting to
commit Robbery. (Supp. CR Vol. 1, p. 23) The autopsy of Theory Green indicated
that Green received at least fourteen (14) blows to the head; that the blows were on
the left side of the head; and, that there was a fracture at the base of the skull that
was “perfectly round half-circle fracture.” (Supp. CR Vol. 1 p. 23) Appellant
asserts he has met the statute (Tex. Code. Crim. Proc. Ann., art. 64.01 (b) wherein
the two items were secured in relation to the offense and are the basis of the
challenged conviction and were in possession of the State during the trial of the
offense, although the items were sent for testing appellant asks that the two items
7.
be subjected to testing with newer testing techniques and believes that he will
receive more accurate and probative results than the previous testing. A
presumptive test for blood was positive on submission items 10 and 14. However,
it could not be determined whether the blood on Evidence Submission Item 14 was
of human origin. (Supp. CR Vol. 1, p. 23) Appellant argues that a determination
of item ten (the hammer) would be conclusive and not probative as to whether the
hammer was used in causing the death of Mr. Green. Additionally, appellant
asserts the submission of the jacket which was last tested over 10 years ago would
conclusively show whether the victim’s blood was placed on the jacket as a result
of his head being struck repeatedly by what corresponds to the hammer and the
autopsy report. The appellant alternatively as least requests that the jacket be
retested to determine the origin of the blood which was inconclusive. In the
instance of the jacket appellant argues he has met Tex. Code. Crim. Ann. 64.03 (1)
the prior testing shows there was the “existence of biological material” in regard to
the jacket and the hammer. (Routier v. State, 273 S.W 3d 241 (Tex. Crim. App.
2008) Appellants argument is that the blood results on the hammer did not show a
match to his blood nor the jacket. He believes the identification of the DNA could
lead to a different suspect or provide exculpatory results had the two items been
further tested for matching pursuant to Art. 64.035.
8.
UNIDENTIFIED DNA PROFILES. If an analyzed
sample meets the applicable requirements of state or federal
submission policies, on completion of the testing under Article
64.03, the convicting court shall order any unidentified DNA
profile to be compared with the DNA profiles in:
(1) the DNA database established by the Federal
Bureau of Investigation; and
(2) the DNA database maintained by the
Department of Public Safety under Subchapter G, Chapter 411,
Government Code.
As such appellant argues he has met the statutory requirements pursuant to
Blacklock v. State, 235 S.W. 3d 231, 232 (Tex. Crim. App. 2007)
Trial counsel states in his memorandum “the mere assertion or a general
claim that the existence of biological material is probable fails to satisfy
Applicant’s burden. The Court of Criminal Appeals has explicitly {said} that
Applicant must prove biological material exists and that it is not merely probable.
“(Supp. CR Vol. 1 p. 30) However, counsel also states a presumptive test for blood
was positive on Evidence items (10) hammer, and (14) jacket. The appellant
argues that if testing is ordered pursuant to article 63.03 the results could exclude
him of using the hammer to bash the victims head and show someone else’s
presence in regard to the jacket. Blacklock v. State, supra. Additionally, appellant
argues, that pursuant to 64.03 (b) A convicted person who pleaded guilty or nolo
contendere or, whether before or after conviction, made a confession or similar
9.
admission in the case may submit a motion under this chapter, and the convicting
court is prohibited from finding that identity was not an issue in the case solely on
the basis of that plea, confession, or admission, as applicable.
Lastly, appellant argues this matter should be as the court held in Smith v.
State 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2005). In Smith, the court held
Smith was entitled to DNA testing because he showed that a reasonable probability
exists--at least a 51% chance--that such testing would establish his innocence if the
results proved to be favorable. On discretionary review, the court determined that
the court of appeals erred, reversed its decision, and remanded the case to the trial
court to order DNA testing. Smith, supra, at 364. Appellant argues if his DNA is
not on the hammer or the jacket then the results would be exculpatory just as in
Smith where if the seminal fluid was tested and not found to be Smith’s it would
be exculpatory.
PRAYER
Appellant, Demetric Lewis Alfred asks that the trial court’s denial of his
motion for post-conviction testing be overruled and the ruling be reversed and the
trial court ordered to have the hammer and jacket tested pursuant to Tex. Code
Crim. Proc. Ann. Art. 64.035. Further, appellant requests this Honorable Court to
10.
grant such other and further relief to which Appellant is justly and equitably
entitled.
Respectfully considered,
/S/ John D. Reeves
JOHN D. REEVES
Attorney at law
1007 Grant
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email: tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains words.
/S/ John D. Reeves
JOHN D. REEVES
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief on this 2nd, day of February, 2015 has been forwarded to the State’s
Counsel, April Ayers-Perez, Assistant District Attorney of Angelina County, by E
filing service at aperez@angelinacounty.net.
/S/ John D. Reeves
JOHN D. REEVES
11.