Brooks, Lonnie Mack v. The State of Texas--Appeal from 306th District Court of Galveston County

Affirmed and Memorandum Opinion filed February 3, 2005

Affirmed and Memorandum Opinion filed February 3, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00136-CR

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LONNIE MACK BROOKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 88JV0310

M E M O R A N D U M O P I N I O N

Appellant, while incarcerated in the Texas Department of Corrections, requested DNA testing of evidence connected with the 1991 murder for which he was convicted. Acting pursuant to chapter 64 of the Texas Code of Criminal Procedure, the trial court ordered the testing but denied further relief after finding that, had the results been available, it was not reasonably probable that appellant would not have been convicted. In his sole issue on appeal, appellant challenges the trial court s finding. We affirm.

Factual and Procedural Background

While appellant was a juvenile, he was convicted for the 1991 murder of Roy Lee Payne. The trial court sentenced appellant to thirty years confinement, served first with the Texas Youth Commission and, since 1993, with the Texas Department of Criminal Justice. In 2001, appellant filed a motion for DNA testing. The State was initially unable to locate any biological evidence connected with appellant s case. However, a blood-stained bandanna was eventually located in an unrelated case. Although the appellate record is sparse, it appears police obtained the bandanna, which was wrapped around the murder weapon,[1] when they arrested another man. DNA testing revealed the blood was from an unidentified female and an unidentified male; neither blood sample matched the sample taken from appellant. After holding a hearing, the trial court determined that, had these DNA testing results been available during appellant s trial, it was not reasonably probable that appellant would not have been convicted. The court denied further relief.

Standard of Review

Appellant filed his motion for DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. We review challenges to a trial court s findings under article 64.04 of that chapter using the bifurcated Guzman standard of review. Baggett v. State, 110 S.W.3d 704, 705 06 (Tex. App. Houston [14th Dist.] 2003, pet. ref d) (stating standard for challenges to trial court s article 64.04 findings). This standard requires a reviewing court to give almost total deference to the trial court s determination of historical fact issues that turn on credibility or demeanor, while reviewing other application-of-law-to-fact issues de novo. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 2002)). Although there may be subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application of law to fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. Baggett, 110 S.W.3d at 706 (citing Rivera, 89 S.W.3d at 59).

Analysis

We begin our de novo review of the trial court s finding with the requirements in chapter 64. Under article 64.04, the trial court must determine whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted. Tex. Crim. Proc. Code art. 64.04. Thus, to obtain a favorable finding, appellant must have established by a preponderance of the evidence that, had the DNA results been available in his original trial, there was a reasonable probability he would not have been convicted. Kutzner v. State, 75 S.W.3d 427, 438 39 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694 (1984); Baggett, 110 S.W.3d at 706. Post-conviction DNA results that merely muddy the waters do not establish a probability sufficient to undermine confidence in the outcome. See Kutzner, 75 S.W.3d at 439. Also, a reasonable probability does not exist if there is sufficient evidence, other than the evidence in question, to establish guilt. Baggett, 110 S.W.3d at 706 (citing Rivera, 89 S.W.3d at 60); Wright v. State, No. 14-03-01060-CR, 2004 WL 502906, at *2 (Tex. App. Houston [14th Dist.] Mar. 16, 2004, pet. ref d) (not designated for publication). Thus, we will uphold the trial court s finding if the DNA results fail to demonstrate a reasonable probability of innocence and there was sufficient evidence, other than the evidence in question, to establish guilt. Id.

1. The DNA results do not undermine confidence in the outcome

With this framework in mind, we turn to the DNA results in appellant s case. As mentioned previously, the DNA results were obtained from the blood-stained bandanna found wrapped around the murder weapon. The results established the blood was not from appellant, but from an unidentified female and an unidentified male. Appellant has not shown how this evidence would make it more or less probable that he murdered Roy Payne. See Baggett, 110 S.W.2d at 707 (holding test result showing inconclusive male pattern did not establish a reasonable probability of innocence). The fact that the blood on the bandanna was not appellant s does not establish that he was not, in fact, the person who shot and killed Roy Payne. See Rivera, 89 S.W.3d at 60 (finding that the absence of the victim s DNA under appellant s fingernails would not indicate innocence). The bandanna has a tenuous connection with the murder of Roy Payne. In fact, the only connection between the bandanna and the murder weapon is that the bandanna was found wrapped around the presumed murder weapon in a completely unrelated arrest. Regardless, the weapon does not appear to have been a key piece of evidence leading to appellant s conviction.[2] In appellant s case, the DNA results merely muddy the waters and do not undermine confidence in the outcome of appellant s original trial. See Kutzner, 75 S.W.3d at 436 37 (finding that the absence of appellant s DNA from the physical evidence connected with the crime would merely muddy the waters. ).

2. Other sufficient evidence exists to establish guilt

Moreover, despite the paucity of the appellate record, it appears there was other evidence presented at appellant s trial that establishes his guilt. Appellant acknowledges he was identified as the shooter through eyewitness testimony. The testimony of eye witnesses to the crime likely would have been sufficient evidence to establish appellant s guilt. But, in the absence of a record of those proceedings, we cannot say appellant carried his burden of showing the DNA results would have made it reasonably probable he would not have been convicted.

Conclusion

At best, the DNA results would have muddied the waters at appellant s original trial; the results do not make it reasonably probable that he would not have been convicted. And, on this record, we cannot say the eye-witness testimony identifying appellant does not otherwise sufficiently establish appellant s guilt. For these reasons, we find the trial court properly denied appellant further relief and overrule his sole point of error.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 3, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Even the status of the gun as the murder weapon is not entirely clear from the record due to an inconclusive ballistics match between the gun and the bullets removed from Roy Payne s body. For simplicity, we will refer to the gun found wrapped in the blood-stained bandanna as the murder weapon.

[2] No direct appeal was taken from appellant s original conviction and no record remains of the proceedings of his original trial. At the hearing on appellant s motion requesting DNA testing, his counsel acknowledged it was uncertain whether the gun was even introduced into evidence at appellant s trial. However, appellant testified that he remembered a gun being introduced as evidence.