Affirmed and Memorandum Opinion filed March 30, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00881-CR
MONZELLE LAVAN STEPTOE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 58852-9
MEMORANDUM OPINION
Appellant Monzelle Lavan Steptoe appeals the trial court’s order denying his
fifth motion for post-conviction DNA testing pursuant to chapter 64 of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-64.05.
For the reasons below, we affirm.
BACKGROUND
On January 22, 2010, a jury convicted Appellant of aggravated robbery and
aggravated kidnapping. This court affirmed the judgment in Steptoe v. State, No.
14-10-00131-CR, 2011 WL 61854 (Tex. App.—Houston [14th Dist.] Jan. 6, 2011,
pet. ref’d) (mem. op., not designated for publication). The background facts, as
previously detailed by this court, are as follows:
On the evening of December 13, 2008, the complainant, Charlene
Reed, drove to her local Kroger store. As she drove into the parking
lot, she saw a man standing outside Kroger. She pulled into a parking
space, removed her keys from the ignition and began to get out of her
van. She saw someone quickly approaching out of the comer of her
eye, realized he was not approaching in a normal manner, and closed
the van door and locked it. The man walked up to the driver’s side
window, pressed a gun to the window, and said, “Open the door or I’ll
shoot you. Open the door.” [Complainant] described the gun as black
with a square barrel. Thinking she could pacify the man by giving
him her car, [Complainant] opened the door to let him in. He got into
her van and told her to move to the passenger seat. He asked for her
purse, which was behind the seat. She brought the purse forward and
put it in the front seat. He told her to start the car, which she did.
During the entire time he held the gun to her head and told her, “Don’t
you move. Stay right there.”
[Complainant] testified that she believed the gun was real and
believed she was going to be shot. Because she feared for her life,
[Complainant] fled the van. She testified that, “if I was going to get
shot, then I wanted to get shot there at Kroger and die there at Kroger
so at least my family would be able to find me.” [Complainant] was
unable to escape the van because the man held on to her arm and
struck her with the gun as she attempted to flee. As he pulled her
back into the van, [Complainant] pushed the panic button in the van,
which drew bystanders toward them. When the bystanders began
moving toward the van, the man ran away.
Police officers traced the man’s cellular telephone he left behind, and
eventually arrested appellant. Appellant gave a statement to police in
which he admitted that as he was walking home on the night of
December 13, 2008, he walked through the Kroger parking lot. On
his way to Kroger he passed a McDonald’s and saw several children’s
toys. He picked up a water gun and decided he “needed a ride home.”
Appellant stated that, “all I wanted was a car and not to rape nor harm
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anyone whatsoever.” He said he never asked “the woman for
anything but her keys and she scared me when she went to screaming.
So, I hit her a couple of times and ran away.” He stated, “All I
wanted was her car to get home out of the cold weather.”
In Steptoe v. State, No. 14-15-00538-CR, 2016 WL 316399 (Tex. App.—Houston
[14th Dist.] Jan. 26, 2016, no pet.) (mem. op., not designated for publication), we
considered Appellant’s appeal from the trial court’s denial of his fourth motion for
DNA testing and appointment of counsel. In his motion, Appellant sought DNA
testing of swabs taken from the cell phone found at the scene. Id. at *1. We
affirmed the trial court’s denial of Appellant’s motion. Id. at *3.
In September 2019, Appellant filed his fifth motion for DNA testing and the
appointment of counsel. In his motion, Appellant again requested DNA testing of
the swabs taken from the cell phone found at the scene. The trial court denied
Appellant’s motion in an order signed October 7, 2019. Appellant timely
appealed.
ANALYSIS
Representing himself pro se, Appellant asserts the trial court erred by
denying his fifth motion for DNA testing and the appointment of counsel.
Appellant also raises several other issues stemming from the underlying trial
proceedings.
I. Chapter 64 DNA Testing
Chapter 64 of the Texas Code of Criminal Procedure permits a convicted
person to “submit to the convicting court a motion for forensic DNA testing of
evidence that has a reasonable likelihood of containing biological material.” Tex.
Code Crim. Proc. Ann. art. 64.01(a-1). A chapter 64 motion requests testing of
evidence that was “secured in relation to the offense that is the basis of the
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challenged conviction and was in the possession of the State during the trial” but
either was not previously tested or, although previously tested, can be tested with
newer techniques that would provide more “accurate and probative” results. See
id. art. 64.01(b); see also Holberg v. State, 425 S.W.3d 282, 284 (Tex. Crim. App.
2014). The convicting court may order DNA testing if (1) the evidence still exists
and is in a condition making DNA testing possible; (2) the evidence has been
subject to a chain of custody and there is a reasonable likelihood the evidence
contains biological material suitable for DNA testing; and (3) identity was or is an
issue in the case. Tex. Code. Crim. Proc. Ann. art. 64.03(a)(1). The movant also
must show by a preponderance of the evidence that he “would not have been
convicted if exculpatory results had been obtained through DNA testing” and the
request for DNA testing “is not made to unreasonably delay the execution of
sentence.” Id. art. 64.03(a)(2).
In response to Appellant’s chapter 64 request for DNA testing, the State
argues that, under the “law of the case” doctrine, our prior resolution of
Appellant’s claim is binding in this appeal. The law of the case doctrine provides
that an appellate court’s resolution of questions of law in a previous appeal are
binding in subsequent appeals concerning the same issue. State v. Swearingen, 424
S.W.3d 32, 36 (Tex. Crim. App. 2014). “In other words, when the facts and legal
issues are virtually identical, they should be controlled by an appellate court’s
previous resolution.” Id.
In Swearingen, the Court of Criminal Appeals applied the law of the case
doctrine in circumstances similar to those presented here. Id. at 32. There, the
defendant sought DNA testing on several pieces of evidence, including the ligature
used to strangle the victim, the victim’s clothes, and cigarette butts. Id. at 35-36.
But the defendant previously had sought DNA testing of this evidence and, in an
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earlier appeal, the Court of Criminal Appeals sustained the trial court’s denial of
the motion on the basis that the defendant “had not met his burden of proof as to
the existence of biological material.” Id. at 36, 38. Concluding that “the law of the
case doctrine controls,” the court held the defendant was not entitled to DNA
testing of the evidence. Id. at 37-38.
Likewise here, the law of the case doctrine controls our disposition of
Appellant’s appeal. In our decision affirming the denial of Appellant’s fourth
motion for DNA testing, we concluded Appellant could not satisfy the
requirements of chapter 64 and was not entitled to DNA testing of the swabs taken
from the cell phone. See Steptoe, 2016 WL 316399, at *3. Specifically, we held
that Appellant could not show identity was an issue in the underlying proceeding
because he “admitted that he pointed a gun at the complainant, hit the complainant
with the gun, and attempted to take her vehicle.” Id.
In his fifth motion for DNA testing, Appellant raises the same issue and
again seeks DNA testing of the swabs taken from the cell phone. Appellant does
not assert that any intervening developments or other factors warrant revisiting our
prior determination of this issue. Because our previous disposition of this issue is
binding under the law of the case doctrine, we affirm the trial court’s order denying
Appellant’s fifth motion for DNA testing. See Swearingen, 424 S.W.3d at 35-38;
see also Phillips v. State, No. 02-16-00049-CR, 2016 WL 6519118, at *1-3 (Tex.
App.—Fort Worth Nov. 3, 2016, no pet.) (mem. op., not designated for
publication) (where the appellate court previously held that “identity was not an
issue in this case,” the law of the case doctrine precluded reconsideration of issues
raised in the appellant’s third motion for DNA testing).
We overrule Appellant’s challenge regarding the trial court’s denial of his
chapter 64 motion for DNA testing.
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II. Appointment of Counsel
Appellant also contends he was entitled to appointment of counsel for
purposes of filing a post-conviction motion for DNA testing.
The 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 Tex. Code Crim. Proc. Ann. art.
64.01(c); see also Weems v. State, 550 S.W.3d 776, 781 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). This finding is reviewed under an abuse of discretion
standard. See In re Marshall, 577 S.W.3d 581, 583 (Tex. App.—Houston [14th
Dist.] 2019, orig. proceeding) (per curiam).
As we discussed above, Appellant’s fifth motion for DNA testing raised
issues this court previously considered and rejected. See Steptoe, 2016 WL
316399, at *2-3. Accordingly, the trial court did not err by denying Appellant’s
request for counsel with respect to this motion.
We overrule Appellant’s challenge regarding his request for appointment of
counsel.
III. Remaining Issues
Appellant raises several other issues with respect to the underlying
proceedings, including challenges regarding whether (1) his phone was recovered
through an illegal search and seizure; (2) the investigating detective “confessed”
there was a possibility Appellant’s phone could have been at the scene before the
incident took place; (3) he received certain required warnings before his custodial
interrogation; (4) he was coerced to write a written statement; (5) the prosecutor
used perjured testimony at trial; and (6) the reporter’s record of the underlying
proceedings had “been altered.”
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Chapter 64 is a narrow procedural vehicle authorizing DNA testing in cases
in which the applicant meets the requirements of the statute. See Tex. Code Crim.
Proc. Ann. art. 64.03. In an appeal from the trial court’s denial of a request for
DNA testing, we may not consider claims that fall outside the scope of chapter 64.
See Weems, 550 S.W.3d at 781. A chapter 64 appeal “is not an invitation to review
every potential error in the underlying trial proceedings” nor does it “confer
jurisdiction on an appellate court to consider collateral attacks on the trial court’s
judgment or to review, under the guise of a DNA testing appeal, anything beyond
the scope of these articles.” Id.
Because Appellant’s remaining issues are outside the scope of chapter 64,
we do not have jurisdiction under chapter 64 to consider these issues. See id. We
overrule Appellant’s remaining issues challenging the underlying proceedings.
CONCLUSION
We affirm the trial court’s October 7, 2019 order denying Appellant’s
motion for DNA testing and the appointment of counsel.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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