ACCEPTED
06-14-00199-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/15/2015 6:48:18 PM
No. 06-14-00119-CR DEBBIE AUTREY
Trial Court No. 10F-0084-005 CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
6th COURT OF APPEALS
AT TEXARKANA, TEXAS TEXARKANA, TEXAS
1/16/2015 2:52:00 PM
Steven Wayne Morgan, DEBBIE AUTREY
Appellant
Clerk
v.
The State of Texas, State
Appealed from the 5th Judicial District Court
Bowie County, Texas
BRIEF FOR THE STATE
The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
By: Samantha J. Oglesby
Assistant Criminal District Attorney
Bowie County, Texas
Texas Bar No. 24070362
Attorneys for the State
In The Court of Appeals
For the Sixth Supreme Judicial District
At Texarkana, Texas
Steven Wayne Morgan, §
Appellant §
§ No. 06-14-00199-CR
v. §
§
The State of Texas, § BRIEF FOR THE STATE
State §
§
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment as
required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate Procedure:
1. Defendant and Pro Se Appellant:
Steven Wayne Morgan
2. Attorney for Appellant at trial:
Derric McFarland
Texas Bar No. 24048646
P.O. Box 1048
Texarkana, Texas 75504
3. Appellee
State of Texas
4. Attorney for the State of Texas on appeal:
Samantha J. Oglesby
Assistant Criminal District Attorney
Bowie County District Attorney’s Office
Texas Bar No. 24070362
i
601 Main Street
Texarkana, Texas 75501
5. Attorney for the State of Texas at trial:
Kristian Young
Texas Bar No. 24027635
210 North Stateline Avenue, Suite 502
Texarkana, Arkansas 71854
6. Presiding Judge at trial:
The Honorable Ralph K. Burgess
District Court Judge
5th Judicial District
Bowie County, Texas
Bi-State Justice Building
100 North State Line Avenue
Texarkana, Texas 75501
ii
Table of Contents
Identity of the Parties and Counsel ....................................................................................i-ii
Table of Contents................................................................................................................ iii
Index of Authorities ......................................................................................................... iv-v
Statement of the Case .......................................................................................................... 1
Reply to Point of Error ........................................................................................................ 2
Summary of the Argument .................................................................................................. 3
Argument .......................................................................................................................... 4-8
Reply to Point of Error Number One ......................................................... 4-8
The trial court did not err by denying Appellant’s request for additional
DNA collection and analysis because Appellant failed to meet the statutory
requirements of Chapter 64 of the Code of Criminal Procedure.
Prayer for Relief .................................................................................................................. 9
Certificate of Compliance .................................................................................................. 10
Certificate of Service ......................................................................................................... 11
iii
Index of Authorities
Cases
Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) ..................................................... 5, 8
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) ............................................. 8
Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002) ................................................... 6
Holberg v. State, 425 S.W.3d 282 (Tex. Crim. App. 2014) ................................................ 7
Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002)................................................... 7
Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ....................................................... 4
State v. Swearingen, 424 S.w.3d 32 (Tex. Crim. App. 2014) ............................................. 6
Constitutions/Statutes/Rules
Tex. Code Crim. Pro. Art. 64.01 ..................................................................................... 5, 7
Tex. Code Crim. Pro. Art. 64.03 .................................................................................. 5, 7-8
iv
Statement of the Case
Steven Wayne Morgan, hereinafter referred to as “Appellant,” was convicted by a
jury of the felony offense of Aggravated Sexual Assault of a Disabled Individual in the
5th Judicial District Court of Bowie County, Texas, the Honorable Ralph K. Burgess
presiding.
The jury assessed Appellant’s punishment at confinement for seventy-five years in
the Institutional Division of the Texas Department of Criminal Justice, and the Judge
sentenced Appellant accordingly.
Appellant then perfected appeal to this Honorable Court. This Court affirmed
Appellant’s conviction in Morgan v. State, 365 S.W.3d 706 (Tex. App. – Texarkana
2012, no pet.). A Petition for Discretionary Review was not filed. On December 21,
2012, Appellant filed an Application for Writ of Habeas Corpus which was subsequently
denied without written order by this Court.
Appellant has since filed two requests for post-conviction DNA testing in the 5th
Judicial District Court of Bowie County, Texas. He now appeals the order of the trial
court denying Appellant’s First and Second Motions for DNA Testing of Evidence
Containing Biological Material in a single point of error.
1
Reply to Point of Error
REPLY TO POINT OF ERROR NUMBER ONE:
The trial court did not err by denying Appellant’s requests for additional DNA collection
and analysis because Appellant failed to meet the statutory requirements of Chapter 64 of
the Code of Criminal Procedure.
2
Summary of the Argument
REPLY TO POINT OF ERROR NUMBER ONE:
The trial court did not err by denying Appellant’s requests for additional
DNA collection and analysis because Appellant failed to meet the statutory
requirements of Chapter 64 of the Code of Criminal Procedure.
The trial court did not abuse its discretion by denying Appellant’s first and second
requests for post-conviction DNA collection and analysis. Appellant’s first request failed
to include a supporting affidavit as required by Chapter 64 of the Texas Code of Criminal
Procedure. The second request failed to specify the evidence to be tested and failed to
establish the presence of biological material on evidence that was not previously
subjected to DNA analysis. Additionally, Appellant’s request would require additional
evidence collection and consideration of new information not presented at trial in
violation of Chapter 64. Finally, the motions and supporting affidavits fail to show by a
preponderance of the evidence that exculpatory DNA results would have prevented
Appellant’s conviction. Therefore, the trial court did not err by denying Appellant’s
First and Second Motions for DNA Testing of Evidence Containing Biological Material.
3
Argument
Reply to Point of Error Number One
The trial court did not err by denying Appellant’s requests for additional
DNA collection and analysis because Appellant failed to meet the statutory
requirements of Chapter 64 of the Code of Criminal Procedure.
Argument and Authorities
A. Standard of Review
When reviewing a trial court’s decision on a motion for forensic testing, an
appellate court employs a bifurcated standard of review.1 Almost total deference is
given to a trial court’s determination of historical fact issues and application-of-law-to-
fact issues that turn on credibility and demeanor.2 However, other application-of-law-to-
fact issues which do not turn on credibility and demeanor are reviewed de novo.3 The
ultimate question of whether a reasonable probability exists that exculpatory DNA tests
would prove innocence is an application-of-law-to-fact issue that does not turn on
credibility and demeanor and is therefore reviewed de novo.
B. Application of Law to Facts
Appellant urges in a single issue that the trial court erred by denying his post-
conviction motions for DNA testing. However, Appellant has failed to meet the
requirements of Chapter 64 of the Texas Code of Criminal Procedure.
Under Texas Code of Criminal Procedure Chapter 64, a convicted person may
move for post-conviction forensic DNA testing of evidence containing biological
1
Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
2
Id.
3
Id.
4
material.4 The convicting court may order forensic DNA testing only if the statutory
preconditions of Chapter 64 are met.5 An appellant must submit a motion requesting
testing of evidence that was secured in relation to the offense comprising the underlying
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
which can provide more accurate and probative results.6 A convicting court may order
testing if the evidence in question “(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 it has not
been substituted, tampered with, replaced, or altered in any material respect; and identity
was or is an issue in the case.”7 Furthermore, the appellant has the burden of showing 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…”8
Appellant’s first request for post-conviction DNA testing did not include a
supporting affidavit as required by Chapter 64.9 (C.R. p. 84 – 88). Given that Appellant
did not meet the statutory requirements of Chapter 64 in his first motion for DNA testing,
the trial court did not err in denying Appellant’s request. On July 21, 2014, Appellant
filed his second motion for post-conviction DNA testing along with two supporting
4
Tex. Code Crim. Pro. Art. 64.01(a-1).
5
Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
6
Tex. Code Crim. Pro. Art. 64.01(b).
7
Id., art. 64.03(a)(1).
8
Id., art. 64.03(a)(2).
9
See Tex. Code Crim. Pro. Art. 64.01(a-1).
5
affidavits. (C.R. p. 98 – 100). However, Appellant’s second motion also fails to meet the
statutory requirements of Chapter 64.
First, Appellant has not indicated which items of evidence he seeks to have tested
or that said items contain biological material. In order to meet the requirements of
Chapter 64, the appellant “must prove that biological material exists and not that it is
merely probable.”10 In Dinkins v. State, the Court of Criminal appeals considered an
appellant’s failure to specify the items to be tested in finding that the trial court did not err
by denying a request for post-conviction DNA testing.11 Here, Appellant’s motion seeks
retesting of “all” biological material collected in relation to this cause. (C.R. p. 92 – 93).
Appellant has failed specify the items to be tested or to prove the existence of biological
material collected in this case other than that which was previously subjected to DNA
analysis.
Second, Appellant’s affidavit makes conclusory statements that he believes “to the
best of his knowledge” that “evidence” obtained in relation to this cause contains
biological material; is in the possession of the state; and that it was not subjected to
“adequate DNA testing.” (C.R. p. 98). The evidence collected from the victim’s sexual
assault examination was previously tested for the presence of biological material. (R.R.
Vol. II, p. 56, 58). Once biological material was located on the victim’s penile swab, it
was compared to the DNA samples given by both Appellant and the victim. (R.R. Vol. II,
p. 62-64). Appellant has not adequately shown that the “evidence” was either not
10
State v. Swearingen, 424 S.w.3d 32, 38 (Tex. Crim. App. 2014) (emphasis in original).
11
Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002).
6
previously tested or that new testing techniques are now available that would provide a
reasonable likelihood of more accurate and probative results that the previous tests.12 As
such, the trial court did not err.
Next, a reviewing court may not consider post-trial evidence when deciding
whether or not an appellant has met his burden of showing by a preponderance of the
evidence that he would not have been convicted had exculpatory results been obtained
through DNA testing.13 Appellant submitted an affidavit of Joyce Hall with his second
motion for DNA testing. (C.R. p. 99-100). In his brief and motions for DNA testing,
Appellant argues that all biological material related to this cause should be retested based
on new information provided in the affidavit of Joyce Hall. (C.R. p. 94-95). Because the
information contained in Hall’s affidavit was not presented at trial, neither the convicting
court nor this Court may consider it in deciding whether Appellant has made an adequate
showing that exculpatory DNA results would have prevented his conviction.
Additionally, new evidence may not be collected and tested pursuant to Chapter 64. Only
evidence “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” may be tested.14
Appellant’s request would require the collection of new evidence, a DNA sample from
Joyce Hall. The trial court was correct in denying Appellant’s request.
12
See Tex. Code Crim. Pro. Art. 64.01(b).
13
Holberg v. State, 425 S.W.3d 282, 285 (Tex. Crim. App. 2014)(citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex.
Crim. App. 2002) (“The language of Article 64.03(a)(2) and its legislative history…do not contemplate
consideration of appellant’s ‘new’ post-trial information.”))
14
Tex. Code Crim. Pro. Art. 64.01(b).
7
Finally, Appellant has failed to meet his burden of showing by a preponderance of
the evidence that he “would not have been convicted if exculpatory results had been
obtained through DNA testing.”15 A convicted person must show that he, more likely than
not, would not have been convicted with exculpatory results – results “excluding [the
convicted person] as the donor of this material…”16 Appellant asserts in his motion and
supporting affidavits that previous testing revealed an unknown individual’s DNA on the
penile swab from the victim. (C.R. p. 94-95, 98-99). However, the record reveals that
Appellant’s DNA cannot be excluded as a contributor to the DNA found on the swab.
(R.R. Vol. II, p. 64; State’s Exhibit 3). Contrary to Appellant’s argument, a comparison of
the DNA from the penile swab to the DNA of Joyce Hall would not exonerate Appellant.
“The presence of another person’s DNA at the crime scene will not, without more,
constitute affirmative evidence of [A]pellant’s innocence.”17 Because Appellant has failed
prove by a preponderance of the evidence that exculpatory results would have prevented
his conviction, the trial court did not error in denying his request for post-conviction DNA
testing.
For these reasons, Appellant’s sole point of error should be overruled.
15
Tex. Code Crim. Pro. Art. 64.03(a)(2)(A).
16
Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App. 2007).
17
Bell, 90 S.W.3d at 306.
8
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and competent
evidence sufficient to justify the conviction and punishment assessed in this case and no
reversible error appearing in the record of the trial of the case, the State of Texas
respectfully prays that this Honorable Court affirm the judgment and sentence of the trial
court below.
Respectfully Submitted:
Jerry D. Rochelle
Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
/s/ Samantha J. Oglesby
By: Samantha J. Oglesby
Assistant Criminal District Attorney
Bowie County, Texas
601 Main Street
Texarkana, Texas 75501
Phone: (903) 735-4800
Fax: (903) 735-4819
Attorneys for the State
9
Certificate of Compliance
I, Samantha J. Oglesby, hereby certify that, pursuant to Rule 9.4 of the Texas
Rules of Appellate Procedure, the State’s Brief contains 1,598 words. This excludes the
caption, identity of parties and counsel, table of contents, index of authorities, statement
of the case, certificate of compliance, proof of service, and signature.
/s/ Samantha J. Oglesby
Samantha J. Oglesby
10
Certificate of Service
I, Samantha J. Oglesby, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Steven Wayne Morgan, Pro Se Appellant, on this the
16th day of January, 2015.
/s/ Samantha J. Oglesby
Samantha J. Oglesby
11