ACCEPTED
12-14-00319-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/16/2015 11:09:29 PM
CATHY LUSK
CLERK
Cause No. 12-14-00319-CR
RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Court of Appeals for the
3/16/2015 11:09:29 PM
Twelfth Judicial District at Tyler, Texas CATHY S. LUSK
Clerk
Demetric Lewis Alfred,
Appellant
3-16-2015
v.
State of Texas,
Appellee
On Appeal from Cause No. CR-22090-AA in the 159th
Judicial District Court of Angelina County, Texas
State’s Brief
April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
aperez@angelinacounty.net
Oral Argument Not Requested
Identity of Parties and Counsel
Demetric Lewis Alfred, Appellant
TDCJ #01065183
Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
Stephen C. Taylor
Attorney for Appellant (trial)
P.O. Box 293
Conroe, Texas 77305
SBN: 19723380
John Reeves
Attorney for Appellant (appeal)
1007 Grant Ave
Lufkin, Texas 75901
SBN: 16723000
Art Bauereiss
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 01921800
April Ayers-Perez
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iv
Statement Regarding Oral Argument........................................................................ v
Issue Presented .......................................................................................................... v
Statement of Facts ..................................................................................................... 1
Summary of the Argument........................................................................................ 1
Argument .................................................................................................................. 1
Reply Issue #1: The hammer and jacket do not show, by a
preponderance of the evidence, exculpatory results exonerating the
appellant.......................................................................................................... 1
Applicable law ...................................................................................... 2
No preponderance of the evidence ....................................................... 2
Prayer ........................................................................................................................ 5
Certificate of Compliance ......................................................................................... 6
Certificate of Service ................................................................................................ 6
iii
Index of Authorities
Cases Page
Dinkins v. State, 84 S.W. 3d 639 (Tex. Crim. App. 2002) ....................................... 3
Kutzner v. State 75 S.W. 3d 427 (Tex. Crim. App. 2002) ........................................ 3
Smith v. State, 165 S.W. 3d 361 (Tex. Crim. App. 2005) ......................................... 3
Thompson v. State, 95 S.W. 3d 469 (Tex. App. – Houston [1st Dist.] 2002) ............ 3
Rules
Tex. R. App. P. 9.4(i)(1) ........................................................................................... 6
Tex. R. App. P. 39.1................................................................................................. vi
Statutes
Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp. 2012) .............................. 2
Tex. Code Crim. Proc. Ann. art. 64.03(a-b) (Vernon Supp. 2012)........................... 2
Tex. Code Crim. Proc. Ann. art. 64.035 (Vernon Supp. 2012) ................................ 5
iv
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in the briefs
and record and the decisional process would not be significantly aided by oral
argument.
Issue Presented
Reply Issue #1: The hammer and jacket do not show, by a preponderance
of the evidence, exculpatory results exonerating the appellant.
v
Statement of Facts
The appellee, State of Texas, agrees with the statement of facts presented in
the appellant’s brief and would defer to those.1
Summary of the Argument
The appellant, Demetric Lewis Alfred, has not proven by a
preponderance of the evidence that the jacket and hammer requesting to be tested
could show exculpatory results exonerating him. The appellant desires testing of
the jacket and hammer not because a preponderance of the evidence exists, but
because the appellant is hoping that he can create a preponderance of the evidence
based on the results of the DNA test. Further, there is an enormous amount of
evidence still in the Lufkin Police Department property room, including two other
hammers and a multitude of other clothing, and additionally the appellant pled
guilty (although this cannot be the sole reason for denying DNA testing it can be
considered with other evidence). The appellant has not proven by a prepondernace
of the evidence that the hammer and jacket in question show exculatory results that
would exonerate the appellant.
Argument
Reply Issue #1: The hammer and jacket do not show, by a preponderance
of the evidence, exculpatory results exonerating the appellant.
1
Brief of the Appellant at 3-4.
1
Applicable law
Post-conviction DNA testing is limited to the evidence 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 was not previously
subjected to DNA test; or, 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.2 A convicting court may order forensic DNA testing only if the
court finds that the evidence still exists and is in a condition making DNA testing
possible, 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;
the convicted person establishes by a preponderance of the evidence that the
person would not have been convicted if exculpatory results had been obtained
through DNA testing, and the request for the proposed DNA testing is not made to
unreasonably delay the execution of sentence or administration of justice.3
No preponderance of the evidence
The only element at issue is whether a preponderance of the evidence (51%
or greater) exists that a reasonable probability exists that the convicted person
2
TEX. CODE CRIM. PROC. ANN., art. 64.01(b) (Vernon Supp. 2012).
3
TEX. CODE CRIM. PROC. ANN., art. 64.03(a-b) (Vernon Supp. 2012).
2
would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA testing. In Dinkins v. State the appellant wanted a pair of
jeans tested to show that exculpatory evidence could exist.4 More specifically, the
appellant “wanted testing first, and then, if the results were favorable, he would
show that he would not have been prosecuted or convicted if the testing had been
done prior to trial.”5 Further, in Thompson v. State the appellant was convicted of
aggravated assault with a deadly weapon, the deadly weapon being a box cutter.6
Although the box cutter was deemed to have blood on it by the State, because the
box cutter was not the only piece of evidence the State had it was not enough to
conclude that there was a preponderance of the evidence that the exculpatory DNA
would prove appellant’s innocence.7 “At best, exculpatory DNA tests on the bux
cutter would ‘merely muddy the waters’.”8
The appellant, Alfred, wants the jacket and hammer tested because, “the two
items [the jacket and hammer] be subjected to testing with newer techniques and
believes that he will receive more accurate and probative results than the previous
testing.”9 This is analogous to the argument made in Dinkins, that was rejected by
4
Dinkins v. State, 84 S.W.3d 639, 642-43 (Tex. Crim. App. 2002).
5
Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005) citing Dinkins, 84 S.W.3d
at 639.
6
Thompson v. State, 95 S.W.3d 469, 471-72 (Tex. App. – Houston [1st Dist.] 2002).
7
Id. at 472.
8
Id. citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002).
9
Brief of Appellant at 8.
3
the Court of Criminal Appeals, because the appellant wanted to test the items first
in order to then prove the preponderance of the evidence standard.10 Likewise,
Alfred wants to test the jacket and hammer in order to prove that exculpatory
evidence might exist and therefore a preponderance of the evidence might exist.
Appellant also contends that, “if his DNA is not on the hammer or the jacket then
the results would be exculpatory…”.11 However, the standard is that the appellant
must prove that a preponderance of the evidence exists that a reasonable
probability exists that the convicted person would not have been prosecuted or
convicted if exculpatory results had been obtained through DNA testing. This
standard must be met prior to the DNA testing, not as a result of the DNA testing.
In Thompson despite there being blood found on the box cutter which was
the purported deadly weapon used, the Court of Appeals found that there was other
evidence in which the appellant was convicted, thus blood on the box cutter did not
satisfy the preponderance of the evidence that a reasonable probability exists that
the convicted person would not have been prosecuted or convicted in exculpatory
results had been obtained through DNA testing.12 Likewise, in the present case
10
Dinkins, 84 S.W.3d at 643.
11
Brief of Appellant at 10.
12
Thompson, 95 S.W.3d at 472.
4
there was an abundance of evidence in addition to the jacket and hammer.13 There
were also two other hammers, in addition to the one appellant is requesting to have
tested, still in evidence in the Lufkin Police Department property room.14 There is
certainly more evidence than a jacket and hammer to tie the appellant to the
murder that he pled guilty to.
Prayer
The State of Texas prays that this Court of Appeals affirm the ruling of the
trial court denying the motion of the appellant for post-conviction DNA testing of
the hammer and jacket pursuant to TEX. CODE. CRIM. PROC. ANN. Art. 64.035.
13
I C.R. at 24-27 (indicating there were up to 54 items in evidence, including tennis
shoes, towels, victims clothing, ball cap, and at least two other hammers in addition to
the one appellant is requesting to have tested).
14
I C.R. at 25.
5
Respectfully Submitted,
/s/ April Ayers-Perez
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ATTORNEY FOR THE
STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 2,431 words, counting all parts of the
document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in
14 point font, and the footnote text is in 12 point font.
/s/ April Ayers-Perez
Certificate of Service
I certify that on March 16, 2015, a true and correct copy of the above
document has been forwarded to John Reeves, 1007 Grant Street, Lufkin, TX
75901, by electronic service through efile.txcourts.gov.
/s/ April Ayers-Perez
6