






                                                                                                             





IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-77,023




BRITTANY MARLOWE HOLBERG, Appellant

v.

THE STATE OF TEXAS




ON APPEAL IN CAUSE NO. 11,492-C
FROM THE 251st DISTRICT COURT
OF RANDALL COUNTY



           Price, J., delivered the opinion of the Court in which Keller, P.J., and
Meyers, Womack, Keasler, Hervey, Cochran, and Alcala, JJ., joined.  Johnson,
J., concurred in the result.

O P I N I O N

           This is an appeal from an order denying the appellant’s motion for post-conviction
DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure.
  We affirm
the convicting court’s order.
BACKGROUND
           The appellant was convicted of capital murder and sentenced to death for the robbery-murder of eighty-year-old A.B. Towery, Sr.  Towery was walking back to his apartment after
purchasing groceries on the afternoon of November 13, 1996, when the appellant asked to
use his telephone.  When Towery allowed the appellant to enter his apartment, a struggle
ensued in which Towery sustained fifty-eight stab wounds and multiple blunt-force trauma
injuries.  The appellant used several items in the apartment as weapons, including a cast iron
skillet, a steam iron, a hammer, a paring knife, a butcher knife, and two forks.  Additionally,
the appellant shoved a lamp base five inches down Towery’s throat.  The appellant—a severe
drug addict––was high on crack cocaine when this attack occurred.  After the attack, the
appellant showered, changed into some of Towery’s clean clothes, and fled the scene with
$1,400 in cash and prescription medications, both stolen from Towery’s apartment.  Later
that evening, she purchased more cocaine using a portion of the cash she had stolen earlier. 
Towery’s son, Rocky Towery, discovered his father’s body at 7:45 a.m. the following
morning in a supine position with the lamp base lodged in his throat, a knife stuck in his
abdomen, and his father’s wallet lying on top of his body.  
           The appellant was charged by indictment with committing capital murder by
intentionally committing murder in the course of attempting to commit and committing
robbery and burglary.
  The prosecution’s theory throughout trial was that the appellant
formed the intent to take Towery’s money prior to approaching him and that, after entering
his apartment and committing the murder, she took $1,400 in cash from his wallet and certain
prescription medications that were scattered throughout the home.
  The jury found the
appellant guilty as charged in the indictment and assessed a sentence of death.  This Court
affirmed the judgment of conviction and sentence on direct appeal.

           In November of 2012, the appellant filed a motion for DNA testing of Towery’s
wallet, alleging that the absence of her biological material on the wallet would prove that she
did not commit an act of theft against Towery—which she contends was the effective
linchpin of her capital-murder conviction.  The convicting court denied the appellant’s
motion, concluding that: (1) the evidence to be tested does not contain biological material;
and (2) the appellant failed to establish by a preponderance of the evidence that she would
not have been convicted of capital murder had exculpatory results been obtained through
DNA testing.
  The appellant now appeals the convicting court’s adverse ruling on her
motion for post-conviction DNA testing of Towery’s wallet.CHAPTER 64
           Chapter 64 of the Code of Criminal Procedure allows a convicted person to “submit
to the convicting court a motion for forensic DNA testing of evidence containing biological
material.”
  Such a motion requests testing of evidence that was “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” but either was not previously tested or, although previously tested, can be
tested with newer techniques that would provide more “accurate and probative” results.
  A
convicting court may order testing only if (1) the evidence “still exists and is in a condition
making DNA testing possible;” (2) the evidence “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 (3) “identity was or is an issue in the case.”
  To obtain the requested
testing, the movant has the burden of showing by a preponderance of the evidence that she
“would not have been convicted if exculpatory results had been obtained through DNA
testing,” and that “the request for the proposed DNA testing is not made to unreasonably
delay the execution of [the appellant’s] sentence[.]”
 In the instant case, there is no dispute that the State has maintained proper possession
of the wallet at all times since it was secured in relation to the offense, and that it has been
subjected to a chain of custody sufficient to establish that the wallet has not been
“substituted, tampered with, replaced, or altered in any material respect.”
  Similarly, the
parties agree that the evidence still exists in a condition making DNA testing possible, and
that the appellant’s request for testing was not made to unreasonably delay the execution of
her sentence or the administration of justice.
  The only issues currently in dispute are, first,
whether the wallet contains biological material; and, second, whether the appellant has
shown by a preponderance of the evidence that she would not have been convicted had
exculpatory results from a DNA test of the wallet been available at the time of trial.In reviewing a trial court’s ruling on a motion for post-conviction DNA testing under
Chapter 64, this Court ordinarily gives “almost total deference” to the trial court’s resolution
of questions of historical fact and application-of-law-to-fact issues that turn on witness
credibility and demeanor, but we consider de novo all other application-of-law-to-fact
questions.
  Moreover, this Court will not consider post-trial evidence when deciding
whether or not the appellant has carried her burden to establish by a preponderance of the
evidence that she would not have been convicted had exculpatory results been obtained
through DNA testing.
  Thus, despite the influx of newly asserted post-trial factual
developments that the appellant calls upon us to consider, our review is limited to discerning
whether, and to what extent, exculpatory results from a DNA testing of the wallet would alter
the landscape if added to the mix of evidence that was available at the time of trial. ARTICLE 64.01—“CONTAINING BIOLOGICAL MATERIAL”
           Article 64.01 requires that the item sought to be tested “contain[] biological
material.”
  “[B]iological material” is defined as: “an item that is in [the] possession of the
state and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings,
bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic
DNA testing[.]”
  We have previously held that, in order to meet Article 64.01’s
requirements, the appellant “must prove biological material exists and not that it is merely
probable.”
  Relatedly, Article 64.01 does not allow for the appellant to conduct a test that
is merely a predicate to a subsequent DNA test—it does not, for example, authorize the
appellant to conduct a preliminary test to determine if the item would be susceptible to DNA
testing.
 
           In support of her contention that the wallet contains biological material, the appellant
offers affidavits from two forensic scientists and a DNA consultant.  Kenneth R. Moses, the
Director of Forensic Identification Services (an independent crime laboratory), states in his
affidavit that “[finger]prints may have been deposited in a mixture of both perspiration and
blood [on the wallet].”  Dr. Elizabeth Johnson, a forensic scientist specializing in  DNA
analysis, states that “there is a high probability that [the appellant] would have left blood on
the interior surfaces of the wallet.”
  And Dr. Rick Staub, an Independent Forensic DNA
Consultant,
 opines that if someone went through Towery’s wallet and stole its contents as
the prosecution theorized at trial, “DNA from microscopic skin cells would have been
deposited on the interior surfaces of the wallet or items contained therein.”  
           The State asks us to affirm the trial court’s finding that “the evidence [the appellant]
seeks to have tested does not contain biological material” by holding that “[t]he assertions
of [the appellant]’s experts are . . . insufficient to satisfy Article 64.01(a-1).”  We 
acknowledge that the probabilities expressed by the appellant’s experts that the wallet
contains biological material—especially those expressed by Moses (“prints may have been
deposited”)
 and Johnson (“there is a high probability that she . . . left blood on the . . .
wallet”)


—arguably raise concerns about whether the appellant has satisfied Swearingen’s
requirement that Chapter 64 movants “prove biological material exists and not that it is
merely probable.”
  On the other hand, Staub’s assertion that “DNA from microscopic skin
cells would have” been deposited in the wallet at least arguably approaches, and perhaps even
surpasses, this burden.  In any event, we decline to adjudge whether these experts’ assertions,
considered either individually or in concert, ultimately satisfy Swearingen’s requirement of
beyond-“mere[]”-probabilistic proof of biological material,
 because, notwithstanding her
success or failure in this regard, we agree with the trial court that the appellant “has failed
to establish by a preponderance of the evidence that she would not have been convicted of
capital murder if exculpatory results had been obtained through DNA testing.”
ARTICLE 64.03—“WOULD NOT HAVE BEEN CONVICTED”
           In order for the appellant to be entitled to post-conviction DNA testing, she must show
by a preponderance of the evidence (that is, a greater than 50% likelihood) that she would
not have been convicted had any exculpatory results generated by the proposed testing been
available at the time of her trial.
  This Court has construed “exculpatory results” to mean
only results “excluding [the convicted person] as the donor of this material . . . .”
 
Therefore, the appellant must show that, more likely than not, she would not have been
convicted had the jury been able to weigh evidence that she did not deposit biological
material on the wallet against the balance of the evidence presented at trial.  The appellant’s
argument in this regard is that “[i]f DNA test results suggest [that the appellant] did not rifle
[through] the wallet . . . this would disprove the State’s claim that she committed a theft by
removing the [$1,400 cash] from Towery’s wallet.”  According to the appellant, this
exculpatory result, if presented at trial, would have sufficiently “undermined” the State’s
reliance on the capital-murder-aggravating theory of robbery so as to create a “substantial
likelihood” that the jury would have declined to convict her of capital murder.
           “A person commits [robbery] if, in the course of committing theft . . . and with intent
to obtain or maintain control of the property, [the person] . . . intentionally, knowingly, or
recklessly causes bodily injury to another.”
  Theft, in turn, occurs when “[a] person . . .
unlawfully appropriates property with intent to deprive the owner of property.”
  Thus, while
the offense of theft has an acquisitive component, commission of the offense of robbery
requires only that the person be in the course of committing a theft.  In this case, the jury was
properly instructed that “[t]he term ‘in the course of committing’ an offense means conduct
that occurs in an attempt to commit, during the commission, or in immediate flight after the
attempt or commission of the offense.”

           Thus, in applying these concepts to the facts of this case, the jury could reasonably
have found that the appellant committed the capital-murder aggravator of robbery even if it
also believed that the appellant did not leave Towery’s apartment with the $1,400 cash
contained in the wallet.  Indeed, the jury could reasonably have concluded that the appellant
committed a robbery even if it believed that she did not take possession of the cash or wallet
at all, but nevertheless had the intent to take possession (and, in furtherance of that intent,
inflicted bodily injury on Towery).  In either of these scenarios, the bodily injury inflicted on
Towery, which ultimately resulted in his death, would have been carried out while the
appellant was “in the course of committing” the theft, notwithstanding any exculpatory DNA
evidence tending to indicate that she never in fact “rifled” through the wallet.
           Moreover, even if exculpatory DNA evidence made it crystal clear that the appellant
did not remove the $1,400 cash from Towery’s wallet, the prosecution’s alternate
theory—that the appellant committed robbery by stealing the large quantity of prescription
medications scattered throughout Towery’s apartment—was thoroughly explored at trial. 
Witnesses testified that Towery had as many as “seven to ten” bottles, and “at times” more
than ten bottles, of prescription pain medications scattered in plain view throughout his
apartment.  Indeed, “at times” there were so many prescription bottles that “it was hard to
count” because “he had a lot.”  The jury learned that it “would be very unusual” if there were
only two bottles of prescription pain pills in plain view at Towery’s apartment, as was the
case at the time police arrived.  Much of the trial, moreover, centered around the appellant’s
history of prescription pain medication abuse and addiction.
           These considerations are enough to convince us that even if exculpatory results were
obtained from a DNA test of the wallet, those results would not negate the inference,
forcefully argued to the jury, that the appellant stole Towery’s prescription medications.  The
jury could, therefore, have reasonably concluded that the appellant committed a robbery by
taking the prescription medications independently of any doubts it may have had that the
appellant stole the $1,400 cash.  Consequently, because the appellant’s non-acquisition of
the cash would either fail to negate the inference that the appellant engaged in assaultive
conduct while harboring an intent to obtain possession of the cash, or would fail to negate
the inference that the assault occurred “in the course of committing” theft by obtaining
possession of the prescription medications, any exculpatory results obtained from a DNA test
of the wallet would not establish, by a preponderance of the evidence, that the appellant
would not be convicted of capital murder. 
           In short, we are unable to say that it is more likely than not that the jury “would not
have . . . convicted” the appellant of capital murder,
 even if it were convinced that she had
never touched the wallet, in light of the credible alternative avenues to determine, beyond a
reasonable doubt, that she committed a robbery against Towery that did not depend on the
appellant touching the wallet.  As a result, the appellant has failed to satisfy her burden under
Article 64.03.
CONCLUSION
           The appellant has not met Article 64.03’s requirement that she prove by a
preponderance of the evidence that she would not have been convicted had exculpatory
results been obtained from the item she seeks to have tested.  As a result, the court below did
not err to deny her Chapter 64 motion for post-conviction DNA testing.  The convicting
court’s order is affirmed.
 
DELIVERED: APRIL 2, 2014
PUBLISH
