                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-403-CR


ANTHONY TROY LOCKETT                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                   STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     In two issues, Appellant Anthony Troy Lockett appeals the denial of his

postconviction request for forensic DNA testing. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

A. Trial and Appeal

      On July 29, 1996, a jury convicted Lockett of murder, and the trial court

sentenced him to forty years’ confinement.       On October 16, 1997, after

reviewing the legal and factual sufficiency of the evidence to support his

conviction, we affirmed it. See Lockett v. State, No. 02-96-00458-CR, slip op.

at 10 (Tex. App.—Fort Worth Oct. 16, 1997, pet. ref’d) (not designated for

publication). To provide context for our discussion below, we briefly summarize

the facts as revealed by the record in this case and our prior opinion.

      On May 30, 1994, Lockett, who had spent the day drinking with his

friend Lance Boyer, told Boyer that he could arrange for them to have group sex

with Lockett’s girlfriend, Joann Wolfe.    Lockett called Wolfe and, without

informing her of their intent, asked her to pick them up at Boyer’s trailer, and

she did so. During the return to her apartment, Wolfe and Lockett argued, and

when they arrived, she jumped from her car, ran into her apartment, and locked

the front door. Undeterred, Lockett scaled the exterior wall to the second story

balcony, entered Wolfe’s apartment, and let Boyer in the front door. When the

argument resumed, Lockett grabbed Wolfe, shook her, and hit the back of her

head against the wall.




                                       2
      Boyer did not see Lockett cause a wound that drew blood from Wolfe’s

frontal scalp, but he left the apartment when Lockett slapped him for trying to

intervene. When he returned ten to fifteen minutes later, Lockett was sitting

on the bed, and Wolfe had locked herself in the bathroom. He saw blood in the

living room that he had not noticed before. At Wolfe’s request, Boyer put her

gown and car keys where she could reach them under the bathroom door.

Thirty seconds later, Wolfe, with blood on her face, ran out of the apartment,

down the stairs, through the breezeway, and across the parking lot as Boyer

watched.2

      Lockett wiped blood from the kitchen wall with his shirt, telling Boyer that

he “didn’t want to make it look as bad as it seemed.” Boyer helped him, wiping

blood from the kitchen pantry door. Lockett cleaned himself up and they left

the apartment. He told Boyer that “he felt bad and he lost control.” 3 Around

3 a.m., after he and Boyer split up, Lockett was arrested for public intoxication

in the car lot of a nearby dealership. 4


      2
       … Boyer admitted that his vision was blurry at around fifteen feet and
that he was not wearing his glasses that night.
      3
          … Lockett’s specific words to Boyer were that he had “fucked up.”
      4
       … An officer stated that an apartment resident told him that, in the early
morning hours, some unknown individuals who did not match Lockett’s or
Boyer’s descriptions knocked on her door and her neighbors’ doors. When the
resident saw these individuals, Lockett was already in police custody for public

                                           3
      About 6 a.m., Wolfe’s body was discovered face-down underneath a

stairwell in the breezeway of the apartment building across the parking lot from

her apartment. She was wearing a gown and clutching her car keys. The

medical examiner, who had initially declared that Wolfe died from hypertension

or cardiovascular disease, ruled that her death was a homicide after he spoke

with investigating officers. Specifically, he opined that she died from a closed

head injury due to a blunt force trauma, which was a result of the frontal

laceration on her scalp that caused her brain to swell.

      Many items of physical evidence were collected from Wolfe’s apartment,5

and some had what appeared to be blood on them although no DNA testing

was conducted, blood-type testing revealed that the blood that could be

classified as human and typed was Wolfe’s Type O blood, and not Lockett’s

Type A blood. A pink towel found in Wolfe’s bathroom contained both Type

O and Type B blood stains.



intoxication.
      5
       … In Wolfe’s apartment, investigating officers found blood on a wall
above a picture, on a wall in the living room, and on the floor, and they found
a blood-soaked and torn navy blue dress in the bedroom. Wolfe’s oven had
been left on with some chicken legs inside, making the apartment smoky, and
there were flowers on the bar area and various sets of wine glasses displayed.
The officers also found four blood transfer stains, which occur when blood on
one object touches another object, on the wall behind where Wolfe’s body was
found.

                                       4
B. DNA-Testing Hearing

     After this court conditionally granted Lockett’s pro se petition for writ of

mandamus seeking to have the trial court rule on his motion for DNA testing,6

the trial court held a hearing in September 2009. At this hearing, Lockett’s

counsel requested a DNA test on the pink towel. The trial court denied this

request as it had denied Lockett’s earlier request in November 2003, and it

adopted the State’s proposed findings of fact and conclusions of law.

     1. Findings of Fact

     The trial court made the following pertinent fact findings:

          1. The defendant was convicted by a jury of the offense of
     murder, and was sentenced to forty years’ confinement on August
     27, 1996.

           ....

           3. The Court denied the defendant’s [November 3, 2003]
     motion on the grounds that identity was not an issue since the
     defendant admitted causing Joann Wolfe’s head injury when he
     knocked her into the edge of the kitchen wall, and that the
     defendant would be unable to establish that he would not have
     been convicted if DNA testing was done given the substantial
     evidence of guilt.

           ....




     6
     … See In re Lockett, No. 02-08-00452-CV, 2009 W L 1740145 (Tex.
App.—Fort Worth June 16, 2009, orig. proceeding) (mem. op.).

                                       5
      6. On September 9, 2009, the Court heard arguments on the
merits of the defendant’s [2008] request for forensic DNA testing.

       7. During that [September 9, 2009] argument, the defendant
limited his request to the pink towel found on the floor of the
bathroom in Jo[ann] Wolf[e]’s apartment.

      8. The defendant’s identity was not or is not an issue in this
case because he caused Ms. Wolfe’s head injuries in the presence
of a witness, Lance Boyer.

     9. Joann Wolfe became angry at the defendant while driving
him and Boyer to her apartment.

      10. When Ms. Wolfe arrived home, she ran upstairs and
locked the defendant and Boyer outside.

     11. The defendant climbed up the balcony to Ms. Wolfe’s
apartment and forced his way inside, and then let Boyer inside.

      12. The defendant and Ms. Wolfe resumed argument, which
escalated into a fight.

      13. The defendant soon overpowered Ms. Wolfe and began
to choke her.

     14. Boyer saw the defendant shake Ms. Wolfe and hit the
back of her head against the wall.

     15. After a failed intervention, Boyer left the apartment and
abandoned Ms. Wolfe to the defendant’s attack.

      16. When Boyer returned ten or fifteen minutes later, Ms.
Wolfe was locked in the bathroom and the defendant was sitting
on the bed.

     17. After obtaining her gown and car keys from Boyer, Ms.
Wolfe ran out of the apartment.



                                 6
     18. Even with his poor vision, Boyer saw blood on Ms.
Wolfe’s face.

      19. Inside the apartment, the defendant began cleaning up
the mess created by the beating, including wiping blood off the
kitchen wall.

       20. The defendant told Boyer that he didn’t “want to make
it look as bad as it seemed.”

       21. Ms. Wolfe was discovered sometime before 6:00 a.m.
in a breeze-way approximately fifty yards from her apartment.

       22. Ms. Wolfe was clutching her set of car keys in her
lifeless hand.

      23. Ms. Wolfe’s bare feet were fairly clean suggesting to the
police that she had not walked far.

     24. In contrast to Ms. Wolfe’s apartment, very little blood
was found in the breeze-way near her body—meaning that the fatal
wound was not inflicted in the breeze-way; and no blood was
found on the railing near her body.

      25. The defendant admitted to Boyer that he felt “bad” and
had “lost control.”

      26. There is no evidence that Ms. Wolfe’s alleged “real”
attacker was injured.

     27.      Forensic DNA testing would not exonerate the
defendant given the facts detailed above since there was no
opportunity for the defendant to leave his DNA.

      28.      The defendant has not demonstrated by a
preponderance of the evidence that forensic DNA testing would
establish his innocence. [Internal citations omitted.]




                                7
       2. Conclusions of Law

       The trial court concluded that identity was not an issue because Lockett

caused Wolfe’s head injury in Boyer’s presence and that, “[g]iven the

substantial evidence that [Lockett] caused Ms. Wolfe’s head injury,” Lockett

could not demonstrate by a preponderance of the evidence that forensic DNA

testing would establish his innocence.

                          III. Motion for DNA Testing

       Lockett complains that the trial court erred by denying his request for

postconviction forensic DNA testing of the pink towel found in Wolfe’s

apartment.

A. Standard of Review

       We employ a bifurcated standard to review a trial court’s decision to deny

a motion for DNA testing, affording 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 and reviewing de novo other

application-of-law-to-fact issues that do not turn on credibility and demeanor.

See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

B. Texas Code of Criminal Procedure Article 64.03

       The trial court must order DNA testing only if statutory preconditions are

met.   Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).           Here,

                                         8
Lockett had to show (1) that identity was an issue in the case and (2) that, by

a preponderance of the evidence, he would not have been convicted if

exculpatory results had been obtained through DNA testing.7 See Tex. Code

Crim. Proc. Ann. art. 64.03(a)(1)(B), (a)(2)(A) (Vernon 2006). The requirement

that identity be an issue in the case is not satisfied simply by a plea of not

guilty. Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App.), cert. denied,

129 S. Ct. 54 (2008); see Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). And

if DNA testing would not determine the identity of the person who committed

the offense or would not exculpate the accused, then article 64.03(a)(2)(A)’s

requirement has not been met. Prible, 245 S.W.3d at 470; see also Smith v.

State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005) (reciting article 64.03’s

legislative bill analysis, which states, “The defendant must prove that, had the

results of the DNA test been available at trial, there is a 51% chance that the

defendant would not have been convicted.”).

C. Analysis

      At issue is whether the identity of the person who caused Wolfe’s death

was in question and whether a DNA test of the pink towel could establish by

a preponderance of the evidence that Lockett would not have been convicted.




      7
          … Article 64.03’s other requirements are not at issue in this appeal.

                                         9
      Lockett argues that identity is an issue in this case because he did not

confess to the killing and because he was in custody three hours prior to the

discovery of Wolfe’s body. His theory is that

      after Boyer and [Lockett] left, Wolfe changed clothes at least
      twice,[8 ] prepared chicken, placed it in the oven, placed wine
      glasses out and an array of flowers on the kitchen bar, changed
      into a blue dress, bloodied it somehow, tore one strap off
      somehow, ripped off eight buttons somehow, changed out of the
      blue dress and into a white gown with a flower print design, left
      the apartment for whatever reason and died in front of apartment
      Number 1814, in the breezeway of Building 18, sometime just
      before 6:00 A.M. During this period of time someone in her
      bedroom bathroom was bleeding on her blood (the blood mixed and
      fresh enough to test[]) and that person was type “B” blood.

He contends that the Type B blood on the pink towel indicates the presence of

another bleeding individual inside the apartment on the night of the murder and

that testing the Type B blood could lead to identification of that other person

or at least point to another person “unknown in identity” sufficient to “suggest

a fairly high probability that someone else murdered the deceased.” Lockett

proposes that adding the DNA evidence to the circumstantial evidence of his

innocence would result in a likelihood of a not-guilty verdict. 9 We disagree.


      8
       … Lockett relies on Boyer’s testimony that he thought Wolfe was
wearing pants when she came to pick them up at his trailer. But Boyer’s
testimony is first that he did not remember what Wolfe was wearing, followed
by “I believe she was wearing pants. It has been so long.”
      9
       … Lockett lists the following as circumstantial evidence of his innocence:
(1) the way Wolfe died, (2) what she was wearing when she was found,

                                       10
      First, contrary to Lockett’s assertion that Wolfe’s body was not in the

breezeway until after 5:30 a.m. and after he was already in police custody,10

Mark Coles, a resident of the apartment building with the breezeway where

Wolfe was found and who gave the testimony that Lockett relies on, testified

as follows:

            Q. Okay. And did—When did you tell the police about this
      [seeing Lockett enter Wolfe’s apartment through the balcony]?

            A. I told the police the following day because I went to work
      the next morning, and I didn’t see anyone around. And when I
      came home, that is when I saw the police. And I said, well—I
      asked someone what had happened. And they said the girl in the
      upstairs apartment had been found murdered outside the
      breezeway.

           And I said, “Well, I think I saw who did it.” And so I went
      and told the apartment complex manager, and she said[, “Y]ou



(3) what time her body was found, and (4) that he was in custody three hours
before her body was found.
       The State lists the following as evidence that substantiates Lockett’s
guilt: (1) that he forced his way into Wolfe’s apartment, (2) that he caused her
fatal injuries in Boyer’s presence when he choked, shook, and hit her, (3) that
she was bleeding on her face when she left the apartment, (4) that Lockett
attempted to clean up the mess created by the beating by wiping blood off the
kitchen wall, (5) that Wolfe’s body was found approximately fifty yards from
her apartment in a breezeway, and (6) that Lockett admitted to Boyer that he
lost control and caused Wolfe’s injuries.
      10
        … Lockett argues that he “was in custody a full three (3) hours before
the deceased body was discovered in an area frequented by others who said
the body was not there until after 5:30 A.M. local time, long after [he] was in
police custody.”

                                      11
better go talk to the police.[“] And I talked to a couple of
policemen and told them my story.

     Q. When you went out to your car, you had to leave that
morning. Did you see a body?

     A. No sir.

     ....

     Q. . . . What time did you go to work the next day?

     A. I went to work at 5:30 in the morning.

     Q. You were in the upstairs apartment, correct?

     A. Yes, sir.

     Q. When you went down the stairs, did you look behind you
underneath the stairs?

     A. No, sir, I did not.

      Q. Would it have been possible for someone to have been
standing there and you not have seen them?

     A. Going down the steps?

     Q. Yes, sir.

       A. Yes, sir, probably so, because going down the steps, I
rarely look back behind me.

     Q. Where was your car parked out down the stairs?

     A. Out in front.

       Q. And you walked out to your car—Was it parked directly
in front of that breezeway, or down one or two—

                              12
            A.   It was down—down toward the left side of the
      breezeway.

            Q. So when you turned around, I would assume to get in
      your car, you wouldn’t have been able to see underneath the
      staircase anyway?

            A. No, sir.

            Q. And you didn’t look to begin with?

            A. Exactly.

[Emphasis added.] Other testimony at trial revealed that when Wolfe’s body

was discovered around 6 a.m., it was discovered underneath the stairwell in the

breezeway. Coles’s testimony is consistent with Wolfe’s body having already

been in the breezeway before Lockett was taken into custody around 3 a.m.

      Additionally, in a statement to the police that was read to the jury,

Lockett described his altercation with Wolfe as follows:

           We had only been there [at Wolfe’s apartment] about 30
      minutes when Joann got mad. I don’t know for sure what she was
      mad about. I think she [got] mad because [Boyer] was with me.
      Me and Joann got into a shoving match in the living room. She
      shoved me and I shoved her.

            We were standing in the living room next to the kitchen when
      I shoved Joann. She hit her head on the edge of the kitchen wall,
      and her head started bleeding and she sat down on the floor.
      Joann immediately got up and walked out the front door. Joann
      was mad at me and had been telling me to leave before we got into
      the pushing match. And after we got into the pushing match and



                                      13
      she hit her head, I figured I would end up going to jail for assault so
      me and [Boyer] left.

             Before we left we saw Joann walk to the apartment building
      directly across from her apartment. And I saw her go inside one of
      the apartments on the left downstairs.

            ....

           I did not kill Joann. She was alive at the neighbor’s
      apartment when I left. [Emphasis added.]

      Therefore, although Lockett accurately complains that he did not confess

to murder when he put “I did not kill Joann” into his statement to the police,

other parts of his statement—particularly his admission that he caused a

bleeding head injury—in light of the medical examiner’s testimony and the

photographic exhibits that indicate the only laceration that Joann suffered that

night was a bleeding head injury, weigh against his argument that DNA-testing

would exculpate him.

      Finally, contrary to Lockett’s assertion that “[b]lood type ‘B’ was found

on numerous items including the pink towel,” of the items at trial, the pink

towel is the only item that clearly has both types. And while many of the items

had what appeared to be blood on them and some actually had Type O blood

on them, others were ruled not positive for blood, positive for blood but unable

to be blood-typed, or positive for blood but unable to confirm whether the blood

was human.

                                        14
      In sum, Lockett’s position is simply that someone else caused the injuries

to Wolfe that resulted in her death: Identity is an issue because someone else

did it, and he would probably have been found innocent because someone else

did it.    However, Lockett has not shown a reasonable probability that the

requested DNA test would prove his innocence because, assuming the blood

typing tests were done correctly, there was already evidence before the jury of

the presence at some point of a hypothetical third person in the apartment. The

timing of this presence is unknown.      What is known is that an altercation

occurred in the apartment which, in Boyer’s presence, included Lockett choking

Wolfe and slamming her head against the wall. After Boyer’s ten-to-fifteen-

minute absence, during which the fight between Lockett and Wolfe continued,

Boyer returned to witness blood in the living room and in the kitchen and blood

on Wolfe’s face as she fled the apartment. And the medical examiner testified

that blunt force trauma resulted in the laceration that caused Wolfe’s death.

Other than an unexplained Type B blood spot on the pink towel,11 there is no

other direct evidence of the presence of anyone besides Lockett, Boyer, and




      11
           … Boyer’s blood type was not entered in evidence.

                                       15
Wolfe inside the apartment that night, and no evidence at all that the “donor”

of this blood was the murderer. 12

         Considering Lockett’s allegations in light of the facts of this case, we

conclude that the trial court did not err by denying Lockett’s motion because

Lockett failed to meet his burden under article 64.03(a)(1)(B) and (a)(2)(A). See

Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (a)(2)(A); Prible, 245 S.W.3d

at 470 (“Evidence of another person’s DNA in addition to Appellant’s is not

exculpatory evidence in this case due to the additional evidence presented at

trial.   Thus, even if the evidence was retested and determined to contain

another person’s DNA . . . , it would not establish by preponderance of the

evidence that Appellant would not have been convicted if the jury had heard

that DNA from a third-party was present.”) (citation omitted); see also Bell, 90

S.W.3d at 306 (considering an appellant’s due process claim and reasoning

that, without more, the presence of another person’s DNA at the crime scene

will not constitute affirmative evidence of an appellant’s innocence). But see

Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (holding that,




         12
        … As in many cases, some questions remain unanswered, including at
what point Wolfe’s body appeared in the breezeway behind the stairs of the
other apartment building. Nevertheless, the jury found Lockett guilty, and this
court has previously affirmed his conviction after performing both legal and
factual sufficiency reviews. See Lockett, No. 02-96-00458-CR, slip op. at 2–6.

                                        16
in sexual assault cases, any overwhelming eye-witness identification and strong

circumstantial evidence supporting guilt is inconsequential when assessing

whether a convicted person has sufficiently alleged that exculpatory DNA

evidence would prove his innocence under article 64.03(a)(2)(A)); Blacklock v.

State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007) (holding that

appellant’s motion for DNA testing fairly alleged and showed by preponderance

of the evidence that the victim’s lone attacker was the semen donor and that

exculpatory DNA test results excluding appellant as the donor would establish

his innocence). We overrule both of Lockett’s issues.

                               IV. Conclusion

      Having overruled both of Lockett’s issues, we affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010




                                      17
