Albert Pennington Small v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed May 10, 2007

Affirmed and Memorandum Opinion filed May 10, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00239-CR

NO. 14-06-00240-CR

NO. 14-06-00242-CR

NO. 14-06-00243-CR

____________

ALBERT PENNINGTON SMALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause Nos. 879,465; 879,466; 879,467; 879,468

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

In six issues, appellant Albert Pennington Small appeals from the trial court=s denial of his motion for postconviction DNA testing. We affirm.

I. Factual and Procedural Background

Appellant pleaded no contest to two counts of aggravated kidnapping, one count of aggravated sexual assault, and one count of aggravated sexual assault of a child.[1] Thereafter, on March 26, 2003, appellant filed a motion for postconviction DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. The record does not indicate the trial court expressly ruled on this motion. In July 2003, pursuant to an investigation of the Houston Police Department Crime Laboratory and recommendations of the Harris County District Attorney=s Office, Identigene, an independent laboratory, conducted testing on evidence relating to the offenses.[2]

On August 23, 2005, appellant filed a second motion for postconviction DNA testing, urging testing of specific evidence relating to the offenses in possession of the Houston Police Department Crime Laboratory and Houston Police Department Property Room that previously had not been tested by Identigene or otherwise.[3] Appellant contended the remaining evidence, if tested, would more likely than not either establish the identity of the person that committed the offense or exclude appellant from the group of persons who could have committed the offense. The State responded with a motion to deny DNA testing. The State did not dispute the existence of appellant=s designated evidence but maintained that, given that the Identigene test results indicated appellant Acould not be eliminated as a contributor to biological material on [the items tested],@ appellant could not meet his burden to establish by a preponderance that he would not have been convicted if exculpatory results had been obtained through DNA testing of the remaining untested evidence. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon 2006).

The trial court, after considering the motions, affidavits of various records custodians, and the Identigene laboratory results, denied appellant=s motion. The court acknowledged in agreed findings of fact that evidence still existed in a condition making DNA testing possible but nonetheless found, without additional explanation, that appellant failed to meet his burden under article 64.03(a)(2).[4] This appeal followed.

II. Analysis

We review the trial court=s decision to deny DNA testing under a bifurcated standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We defer 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. Employing this standard, we review de novo determinations under article 64.03(a)(2)(A) not involving credibility and demeanor. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005); Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003).

In issues one through four, appellant contends the trial court violated his federal constitutional rights to due process and his state and federal constitutional rights to confrontation and cross-examination because he did not appear at the hearing[5] and could not cross-examine the State=s affiants. In issue five, appellant asserts the trial court violated the Texas Rules of Evidence in admitting the State=s affidavits and laboratory results, which he claims constituted inadmissible hearsay. We and other courts have previously overruled these precise arguments under similar facts, and, therefore, we overrule issues one through five. See Thompson v. State, 123 S.W.3d 781, 783B85 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see also Mearis v. State, 120 S.W.3d 20, 24B26 (Tex. App.CSan Antonio 2003, pet. ref=d); Cravin v. State, 95 S.W.3d 506, 508B11 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

In issue six, appellant complains the trial court erred in denying his motion because additional materials relating to each offense and suitable for DNA testing remain that were not tested by Identigene. Appellant first challenges the trial court=s procedural authority, reasoning that chapter 64 does not give the court discretion to allow testing of some evidence and, finding such testing does not exculpate appellant, refuse to order testing of any remaining evidence. He notes that chapter 64 instead requires the State to either deliver evidence capable of DNA testing to the court or explain in writing why it cannot do so. See Tex. Code Crim. Proc. Ann. art 64.02(2) (Vernon 2006). Appellant further contends the Identigene test results did not conclusively link him to the evidence, as they stated that appellant could not be excluded as a contributor and the possibility remains that appellant was not the contributor. He adds that the remaining evidence, including vaginal fluids, is not insignificant, and the absence of his DNA material from such evidence would be highly exculpatory. The State counters that we should defer to the trial court=s finding that appellant failed to demonstrate by a preponderance of the evidence that a reasonable probability exists he would not have been convicted because the Identigene test results strongly, if not conclusively, linked appellant to the crime. See id. art 64.03(a)(2)(A).

We have independently reviewed the sealed Identigene test results, and we disagree with appellant=s characterization of them. Without disclosing the particulars of the results, we note that they link appellant=s DNA profile to the DNA extracted from the relevant evidence by an overwhelming degree of mathematical probability. In similar cases, courts have found the evidence failed to establish a right to relief under chapter 64. See Robinson v. State, No. 05-04-01346-CR, 2006 WL 2244434, at *1 (Tex. App.CDallas Aug. 7, 2006, no pet.) (not designated for publication) (holding that postconviction DNA tests were unfavorable to appellant under article 64.04 of Code of Criminal Procedure where probability that someone other than appellant was contributor of DNA on epithelial fraction exceeded world=s population, although probability on sperm fraction was significantly lower); Fuentes v. State, 128 S.W.3d 786, 788B89 (Tex. App.CAmarillo 2004, pet. ref=d) (holding similarly where results showed appellant could not be excluded as contributor of major component of DNA on evidence and probability that someone other than appellant was contributor vastly exceeded world=s population); Hicks v. State, 151 S.W.3d 672, 675B76 (Tex. App.CWaco 2004, pet. ref=d) (holding similarly where results showed appellant=s profile was consistent with that found on evidence and probability that someone other than appellant was contributor vastly exceeded world=s population); Brewer v. State, No. 05 02 00136 CR, 2002 WL 31445286, at *1B2 (Tex. App.CDallas Nov. 2, 2002, no pet.) (not designated for publication) (noting that testing of previously untested hairs removed from complainant=s body could fail to match appellant=s DNA without foreclosing appellant=s guilt for sexual assault where complainant was assaulted in filthy, vacant house, Aparticularly@ in light of other DNA testing revealing probability that someone other than appellant was contributor of DNA on complainant=s clothes was one in many trillions). Given this strong linkage, we conclude appellant has failed to show by a preponderance he would not have been convicted had exculpatory results been obtained from testing of the remaining evidence.[6] See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A); Whitaker, 160 S.W.3d at 9 (holding appellant failed to meet burden under article 64.03(a)(2) where appellant claimed testing of blood on murder weapon would reveal another individual committed murder because, regardless of whose blood appeared on weapon, other evidence established appellant=s guilt). Accordingly, the trial court did not err in denying appellant=s motion, and we overrule issue six.

Having overruled appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed May 10, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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

[1] One aggravated kidnapping count and the aggravated sexual assault count relate to one complainant (police offense report number 141476300), and the other aggravated kidnapping count and the aggravated sexual assault of a child count relate to an additional complainant (police offense report number 2501501).

[2] The evidence relating to offense number 141476300 included (1) a cutting from loose evidence paper, (2) a vaginal smear, (3) an extracted blank control, (4) a blood stain card labeled with the complainant=s name, and (5) extracted DNA labeled AAlbert Small.@ The evidence relating to offense number 2501501 included (1) a vaginal smear, (2) extracted DNA labeled AAlbert Small,@ and (3) a blood stain card labeled with the complainant=s name. The trial court granted the State=s motion to seal the results of the Identigene tests. See Tex. Occ. Code Ann. '' 58.001(4)B(5), 58.102(a) (Vernon 2003) (providing that, subject to exceptions, Agenetic information is confidential and privileged regardless of the source of the information@). The trial court provided us with the results upon our motion for purposes of this appeal, and we have agreed to keep them confidential. See id. ' 58.103(a)(2) (providing that, subject to limitations in the Texas Government Code relating to the DNA records in the Texas Department of Public Safety DNA Database, an individual=s genetic information may be disclosed without authorization of the individual or legal representative of the individual if required under a specific order of a state or federal court).

[3] The evidence included a rape kit, miscellaneous clothing, and various tubes containing DNA evidence from various sources on appellant and the complainants.

[4] We note that appellant filed his first motion when former article 64.03 governed, which required a more onerous Ainnocence@burden. See Act of April 5, 2001, 77th Leg., R.S., ch. 2 ' 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art 64.03(a)(2)(A)); Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). However, appellant filed his second motion after article 64.03 was amended to its current form, which invokes a preponderance-of-the-evidence burden. See Tex. Code Crim. Proc. Ann. art 64.03(a)(2)(A). Because appellant=s second motion is the Alive@ motion, we review the motion under the current preponderance-of-the-evidence standard. See generally Alvarado v. State, No. 03 05 00216 CR, 2003 WL 22026409, at *2 (Tex. App.CFort Worth Aug. 28, 2003, no pet.) (not designated for publication) (treating later-filed motion for postconviction DNA testing as Alive@ motion for purposes of appeal).

[5] Appellant contends the trial court erroneously stated in an order that appellant was present at the motion hearing, and the State does not address this point. Because appellant=s actual presence at the hearing will not alter our analysis, we need not address this apparent discrepancy.

[6] We acknowledge that, in reviewing whether postconviction DNA test results were Afavorable@ under article 64.04, some of the cases we cite invoke or analogize the more onerous Ainnocence@ standard. See, e.g., Fuentes, 128 S.W.3d at 787. However, we conclude, even under the preponderance-of-the-evidence standard for article 64.03(a)(2)(A), appellant failed to meet his burden. Cf. Wilson v. State, 185 S.W.3d 481, 484 n.4 (Tex. Crim. App. 2006).