Albert McAfee v. The State of Texas--Appeal from 142nd District Court of Midland County

Opinion filed February 8, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00379-CR

__________

   ALBERT MCAFEE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CR-14,493

O P I N I O N

Albert McAfee appeals the trial court=s order denying his postconviction motion for forensic DNA testing. We affirm.

In 1988, the jury convicted appellant of aggravated sexual assault. The trial court assessed punishment at fifty years confinement. On June 9, 2005, appellant filed a motion requesting forensic DNA testing under Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006). On August 29, 2005, appellant filed an amended motion. After a hearing, the trial court entered its order denying appellant=s motion.

In a sole appellate issue, appellant argues that the trial court erred in denying his motion. A trial court may order forensic DNA testing only if, among other things, identity was or is an issue in the case. Article 64.03(a)(1)(B). Article 64.03(a)(1)(B) requires Athat identity >was or is= an issue, not that future DNA testing could raise the issue.@ Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002). Appellant has the burden to show that identity was or is an issue in the case. Wilsonv. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).

Appellant contended in his motion that A[i]dentity was and is an issue in this case.@ In the motion, appellant neither explained how identity was or is an issue in this case nor set forth any factual support for his contention that identity was or is an issue in this case. Appellant filed an affidavit in support of his motion. In the affidavit, appellant stated the following contentions on the identity issue:

Identity was and continues to be an issue in this case. Specifically, the State did not conduct DNA testing on the vaginal swabs or on any evidence but the bed sheets. Secondly, the complainant testified that her assailant wore a mask. I did not commit this crime and I continue to maintain my innocence.

The parties did not present any witnesses at the hearing on appellant=s motion. Apparently, the reporter=s record from the underlying aggravated sexual assault trial was not before the trial court at the hearing on appellant=s motion. However, appellant=s counsel requested that the trial court take judicial notice of Athe file and our motion and [appellant=s] affidavit.@ Although the record is not entirely clear on the judicial notice issue, the trial court apparently took judicial notice of the requested items. The State has filed the reporter=s record containing the testimony from the underlying aggravated sexual assault trial as part of the appellate record. At the hearing on appellant=s motion, the State presented the trial court a copy of the State=s brief in appellant=s appeal from his conviction in the underlying aggravated sexual assault trial. However, a copy of the State=s brief is not in the record on appeal.

At the hearing on appellant=s motion, the State contended that identity was not an issue in the underlying aggravated sexual assault case. The record from the hearing demonstrates that the trial court agreed with the State=s contention. Therefore, the trial court entered its order denying appellant=s motion. Article 64.03 does not require that a trial court enter written findings, and the trial court did not enter written findings in this case.

In reviewing the trial court=s ruling on a motion for DNA testing, the appellate court applies the bifurcated Guzman[1] standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the trial court=s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Id.

Appellant did not assert any facts supporting his contention that identity was and is an issue in this case, either in his motion for DNA testing or in his affidavit. In his motion, he merely stated the conclusion that A[i]dentity was and is an issue in this case.@ In his affidavit, he stated that the victim testified that her assailant wore a mask. Appellant also maintained his innocence in the affidavit. However, appellant=s affidavit failed to show or explain how identity was an issue. In the absence of factual allegations that, if true, would support the finding required by Article 64.03(a)(1)(B) B that Aidentity was or is an issue in the case@ B we cannot say that the trial court erred in denying appellant=s motion. See Russell v. State, 170 S.W.3d 732, 734 (Tex. App.CWaco 2005, no pet.); In re McBride, 82 S.W.3d 395, 397 (Tex. App.CAustin 2002, no pet.).

Additionally, assuming that the trial court took judicial notice of the record from the underlying aggravated sexual assault trial, the evidence presented at the trial supports the conclusion that identity was not and is not an issue in this case. The victim testified that, on December 15, 1987, at about 9:00 or 10:00 p.m., a black man pushed his way into her house through the front door and grabbed her by the arm. The victim testified that the man had a white rag covering his face from the nose down. The man told the victim to undress and threatened her with a knife. The victim said that the man sexually assaulted her on the couch in her living room and also sexually assaulted her on the bed in her bedroom. After the man sexually assaulted the victim in the bedroom, the victim and the man went back into the living room to get dressed. The victim testified that the man sat down on the couch and fell asleep. The victim asked the man to leave, but the man would not wake up.

The victim decided to leave her house to get help from her neighbors. She first went to her next door neighbors= house, but she was unable to awaken them. She then went across the street to Donald Ray Clater=s house. The victim told Clater that a man had sexually assaulted her and that the man was still in her house. Donald McCoy was also present at Clater=s house. The victim testified that, from the time she left her house until the time she summoned Clater, she did not see or hear anyone leave her residence. Clater went to another residence to call the police, and McCoy watched the front door of the victim=s house to see whether anyone entered or exited the house. After Clater called the police, he also watched the victim=s house. Clater testified that he and McCoy traded watching the front door and back door of the house. Clater testified that the first police officer arrived at the scene about four minutes after the victim had first arrived at his house. Clater and McCoy did not see or hear anyone leave the victim=s house from the time they started watching it until the officers arrived. Clater told the officers that the man was still in the victim=s house.

Midland Police Officer Recardo Candelaria was the first officer on the scene. Officer Candelaria directed McCoy to watch the back door of the house. Officer Candelaria and Clater watched the front door of the house. Within a short period of time, backup officers arrived at the victim=s house. Midland Police Officer Arthur Villareal watched the back door of the house. Officer Villareal said that he checked the back door and that it was locked. Officer Candelaria and Officer Villareal testified that they did not see anyone enter or exit the house while they were watching it.

Midland K-9 Police Officer Teddy Patrick Bostick and his police dog went to the front door of the house. Officer Bostick testified that he opened the screen door and stood in the doorway. Officer Bostick testified that he saw a subject sitting and sleeping on the couch. Officer Candelaria then entered the house and found a black man asleep on the couch. Officer Candelaria leaned over the man to wake him up. Officer Candelaria testified that he had to shake the man several times before he finally woke up. During their testimony, Officer Candelaria and Officer Bostick identified appellant as being the man they found asleep on the couch. Officer Villareal testified that, when he entered the house, Officer Candelaria and Officer Bostick were talking with appellant.

Officer Candelaria testified that he placed handcuffs on appellant. Officer Candelaria noticed that appellant had blood stains on his palms and on his chest. The evidence established that the victim was bleeding and bruised after the sexual assaults. Officer Candelaria said that appellant was wearing blue jeans and some type of boots and that appellant was not wearing a shirt. Officer Candelaria found a pocket knife in appellant=s right front pants= pocket. Clater and McCoy testified that they saw appellant exit the victim=s house with the officers.

Officer Villareal testified that he took appellant to the police department. Officer Villareal said that appellant was wearing blue jeans, socks, and rubber boots. He also said that appellant was in possession of a T-shirt and a bandanna.

The victim testified that the back door to her house was locked on the night in question. She also testified that she had blocked the back door by keeping a chest of drawers in front of it. The victim said that she returned to her house after the officers removed the man from the house. She also said that, when she returned to the house, the back door was locked and the chest of drawers was still in front of the back door.

The victim testified that her attacker covered his face from the nose down with a white rag, and the victim did not directly identify appellant as her attacker during her testimony. However, the above evidence establishes that identity was not an issue in the case. The victim said that her attacker fell asleep on her couch after sexually assaulting her. Within a short period of time after the attack, the officers found appellant sleeping on the same couch in the victim=s house. The victim said that she did not see or hear anyone leave her house from the time she left her house until she spoke with Clater. McCoy, Clater, and the officers did not see or hear anyone enter or exit the victim=s house when they were watching the house. The victim was bruised and bleeding after the attack. Appellant had blood on his palms and on his chest. The victim said that her attacker threatened her with a knife. Appellant was in possession of a pocket knife. The evidence established that only one person committed the offense. There was no evidence that someone other than appellant entered the victim=s house or committed the charged offense. Because identity was not an issue and is not an issue in the case, the trial court did not err in denying appellant=s motion. See Article 64.03(a)(1)(B).

Appellant relies on Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005). Article 64.03(a)(2)(A) provides that the trial court may order forensic testing only if Athe 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.@ Smith involved the issue of whether the defendant had met his burden under Article 64.03(a)(2)(A). In Smith, the trial court took judicial notice of the trial record from the underlying trial. Smith, 165 S.W.3d at 362. The Court of Criminal Appeals concluded that the evidence in the trial record was sufficient to satisfy the defendant=s burden under Article 64.03(a)(2)(A). Id. at 365. Smith is factually distinguishable from this case. In this case, as set forth above, the trial record from the underlying trial shows that identity was not and is not an issue in the case. We overrule appellant=s issue.

We affirm the order of the trial court.

TERRY McCALL

JUSTICE

February 8, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).