                         NUMBER 13-18-00046-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MARLIN WAYNE WEBB,                                                        Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 361st District Court
                         of Brazos County, Texas.


                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      Appellant Marlin Wayne Webb contests the trial court’s order denying his motion

for post-conviction DNA testing of physical evidence under chapter 64 of the Texas Code

of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. ch. 64 (West, Westlaw through
2017 1st C.S.). We affirm.1

                                            I. BACKGROUND

        In 1990, appellant was convicted and sentenced to life imprisonment for the capital

murder of Donald Cravens.2 At trial, Dennis Clay Smith testified that he and appellant

robbed Cravens and that appellant shot Cravens twice in the back of the head with a .38

caliber revolver.3 The crimes occurred on the second floor of a movie theater Cravens

owned in Bryan, Texas. Smith further testified that, after the robbery and murder, he and

appellant threw the murder weapon and the tennis shoes Smith was wearing off of a

bridge into the Navasota River. The gun and the shoes were recovered by a police dive

team 138 days later. According to appellant, by the time the items were recovered, Smith

had given a statement averring that he had disposed of the shoes because Cravens’

blood had spattered on them.

        Appellant filed a motion in 2017 seeking post-conviction DNA testing of the shoes

and the gun. See id. art. 64.01(a-1).4 Appellant argued that, although the shoes had

been tested for the presence of blood around the time of the trial, no attempt was made

to extract DNA from either item. The motion included, among other evidence, an affidavit


          1 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco pursuant to

an order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2017 1st C.S.). Accordingly, we will apply the precedent of the Tenth Court of Appeals to the extent it
differs from our own. See TEX. R. APP. P. 41.3.
         2 According to both parties, appellant’s conviction was affirmed by the Tenth Court of Appeals on

direct appeal in appellate cause number 10-90-075-CR. A copy of the slip opinion affirming the conviction,
dated March 18, 1992, was attached to the State’s response to appellant’s motion for post-conviction DNA
testing; however, the opinion is not available on Westlaw or on the Tenth Court of Appeals’ website.
        3 Excerpts from the trial reporter’s record were attached to the State’s response to appellant’s

motion. However, Smith’s testimony does not appear in any of the excerpts. Nevertheless, the parties
appear to agree on the content of Smith’s testimony.
        4According to the parties, appellant initially filed his motion for DNA testing pro se. However, the
only motion in the record before us is an amended motion, filed on September 19, 2017 by appointed
counsel. We refer only to the amended motion in this opinion.

                                                     2
by Brandi Mohler, a DNA consultant and expert who had previously worked as a forensic

scientist for the Texas Department of Public Safety (DPS). Mohler’s affidavit stated in

part that “[w]hen these items were examined by Texas DPS 27 years ago, DNA analysis

was not available as a testing option” and “even though the tests for blood were negative,

this does not preclude the presence of potential DNA material.”

       Appellant’s motion also included an affidavit by Marc Hamlin, then the Brazos

County District Clerk, who stated that the exhibits from the murder trial are “all maintained

in one box” in his office; that the shoes “are contained inside a torn/open paper bag that

comingles with the other evidence”; and that his office “does not maintain” the revolver.

Hamlin’s affidavit included photos of the evidence box, showing the “torn/open paper bag”

containing the tennis shoes as well as several other pieces of evidence, including the

plastic jar originally used to store the gun. Several of the items in the box appear to be

contained in individual bags.

       The State filed a response on November 20, 2017 arguing that the motion should

be denied without a hearing because appellant did not meet the requirement of showing

that the items have “been subjected to a chain of custody sufficient to establish that [they

have] not been substituted, tampered with, replaced, or altered in any material respect.”

Id. art. 64.03(a)(1)(A)(ii). The State attached excerpts from the trial testimonies of John

Crenshaw, a Bryan Police Department officer who was present when the items at issue

were recovered; and Richard Crum, an FBI agent who examined the gun. Crenshaw

testified that, as soon as the gun was retrieved from the river, it was placed in a water-

filled plastic jar in order to prevent rusting. Crenshaw later brought the jar to Crum, who

removed and emptied the gun, and “immediately started oiling it down.” Crum testified



                                             3
he immersed the weapon in a gun-cleaning solvent, cleaned its surfaces, and test-fired

it. Additionally, Crenshaw testified that the tennis shoes tested negative for the presence

of blood.

       The State also attached to its response an affidavit by Bill Turner, the former

Brazos County District Attorney and the lead prosecutor in appellant’s trial, stating in part:

       I tried numerous murder cases during my time in office as the District
       Attorney. Early in my career, a pathologist told me that dried blood posed
       no hazard. So my practice, while preparing for trial and during trial, was to
       handle evidence without wearing any gloves. I did not discontinue the
       practice of handling evidence without wearing gloves until 2010, when I tried
       the murder case in the State of Texas v. Danny Grammer, cause no. 09-
       01820-CRF-361. During the Grammer jury trial, I was handling bloody
       evidence without gloves while questioning a DPS lab technician; a DPS
       supervisor present to watch the testimony commented that I should put
       gloves on because it was making her sick. I complied with her request and
       changed how I routinely handled evidence.

       I am confident that I did not wear gloves while handling the evidence in the
       Marlin Wayne Webb case, including the tennis shoes and the murder
       weapon that are the subject of the DNA motion. It is also possible that
       defense counsel also touched the tennis shoes and the murder weapon
       when examining the evidence, either while preparing for trial or during trial.
       Finally, it is also possible that the jury examined the evidence during their
       deliberations.

       Without holding a hearing, the trial court denied appellant’s motion for DNA testing

on November 29, 2017. The order contained findings of fact and conclusions of law,

including the following:

       The Court finds that Bill Turner, during preparation for trial and during trial,
       touched both items without wearing gloves.

       ....

       The Court finds the tennis shoes are in a torn, open paper bag and are
       comingled with the other evidence in a single evidence box.

       ....

       The Court finds that the tennis shoes and .38 caliber revolver have not been

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       subjected to a chain of custody for purposes of DNA testing sufficient to
       establish that both items have not been substituted, tampered with,
       replaced, or altered in any material respect.

       ....

       The Court finds that, based on the tennis shoes and .38 caliber revolver
       having not been subjected to a chain of custody for purposes of DNA testing
       sufficient to establish that it has not been substituted, tampered with,
       replaced, or altered in any material respect, Applicant fails to show by a
       preponderance of the evidence that a reasonable probability exists that
       Applicant would not have been convicted if exculpatory results had been
       obtained through DNA testing.

This appeal followed. See id. art. 64.05.

                                        II. DISCUSSION

A.     Motion for DNA Testing

       Appellant argues by his first issue that the trial court reversibly erred as a matter

of law by failing to order DNA testing of the tennis shoes and gun.

       1.     Applicable Law and Standard of Review

       Under chapter 64, a convicted person may file a motion with the convicting court

for forensic DNA testing of evidence “that was secured in relation to the offense that is

the basis of the challenged conviction” and that “has a reasonable likelihood of containing

biological material.” Id. arts. 64.01(a-1), (b), 64.03(a)(1)(B). The motion must show that

the evidence was in the possession of the State during trial, is currently in the possession

of the State, and either was not previously subjected to DNA testing or was previously

subjected to testing but “can be subjected to testing with newer testing techniques that

provide a reasonable likelihood of results that are more accurate and probative than the

results of the previous test.” Id. art. 64.01(a)(1), (b). The court may order testing under

chapter 64 only if it finds that: (1) the evidence “still exists,” “is in a condition making DNA

testing possible,” and “has been subjected to a chain of custody sufficient to establish

                                               5
that it has not been substituted, tampered with, replaced, or altered in any material

respect”; (2) there is a “reasonable likelihood that the evidence contains biological

material suitable for DNA testing”; (3) “identity was or is an issue” in the underlying case;

(4) the movant established by a preponderance of the evidence that he or she would not

have been convicted if exculpatory results had been obtained through DNA testing; and

(5) the movant established by a preponderance of the evidence that the request for testing

is not made to unreasonably delay the execution of sentence or administration of justice.

Id. art. 64.03(a)(1)(A)–(C), (a)(2)(A), (a)(2)(B); Ex parte Gutierrez, 337 S.W.3d 883, 889–

90 (Tex. Crim. App. 2011).

       In reviewing a trial court’s rulings under chapter 64, we use a bifurcated standard

of review, affording “almost total deference” to findings of historical fact and application-

of-law-to-fact issues that turn on witness credibility and demeanor, but considering de

novo all other application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d at

890.

       2.     Analysis

       The Texas Court of Criminal Appeals’ recent decision in Reed v. State is

instructive. See 541 S.W.3d 759, 762 (Tex. Crim. App. 2017), cert. denied, 138 S. Ct.

2675 (2018). In that case, the Court affirmed the trial court’s denial of post-conviction

DNA testing based on the movant’s failure to show by a preponderance of the evidence

that (1) exculpatory results on any of the items he sought to have tested would have

resulted in his acquittal, or (2) his motion was not made for the purpose of unreasonable

delay. 541 S.W.3d at 773–80 (applying TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A),

(a)(2)(B)). The Reed Court also found that the evidence supported the trial court’s



                                             6
determination that some of the items sought to be tested were “contaminated, tampered

with, or altered.”     Id. at 769–70 (applying TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(A)(ii)).

       Although DNA testing had been done on some items and the results of those tests

were in evidence at trial, the appellant in Reed argued that new DNA testing techniques

could reveal the presence of “touch DNA,” the existence of which is based on the concept

that “when a person touches something[,] the person’s epithelial, or skin, cells transfer to

that object and then may be subjected to DNA analysis.” Id. at 765. At a hearing on

Reed’s chapter 64 motion, an investigator with the Office of the Attorney General testified

that he located many of the items sought for testing in “two unsealed boxes” in the Bastrop

County Clerk’s Office, and he took photos of the items in the boxes. Id. at 767. The

photos showed that, aside from one bagged item, the pieces of evidence were “simply

placed in the box” and were “not separated into individual bags”—rather, the items “are

distinctly commingled and touching one another.” Id. A Bastrop County Deputy Clerk

testified that several documents entered into evidence at appellant’s trial were “not

individually wrapped” but instead were stored together in a single manila envelope. Id.

And the lead prosecutor at Reed’s trial testified that many people—including herself, the

defense attorneys, court personnel, the court reporter, the district clerk, and potentially

the jurors—handled the evidence at trial without gloves. Id.

       Reed presented two witnesses—a former detective and crime scene expert, and

an associate DNA laboratory director—who each testified that the fact that several items

were commingled together in a box would not make that evidence unsuitable for testing.

Id. at 766. The trial court credited this testimony, but it nevertheless found that the



                                             7
evidence at issue was not “subjected to a chain of custody sufficient to establish that it

has not been substituted, tampered with, replaced, or altered in any material respect.” Id.

(citing TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(ii)). The court of criminal appeals

found that the evidence supported this finding, noting that “[t]he cumulative weight of the

State’s and Reed’s witnesses demonstrates that the manner in which the evidence was

handled and stored casts doubt on the evidence’s integrity, especially for the specific

testing Reed seeks.” Id. at 770.

       Appellant argues that Reed is distinguishable from his case principally due to the

nature of the photos of the stored evidence. He contends that, unlike in Reed, the photos

of the evidence box in this case show that the items were not “commingled” together but

were rather contained in “separate packaging,” thereby “eliminat[ing], or significantly

reduc[ing], the risk of contamination from the method of storage.” Appellant also notes

that, unlike in Reed, the State offered no expert affidavit “concerning contamination or

tampering resulting from the storage of the tennis shoes with separately packaged items”;

whereas his expert averred that the shoes may still potentially contain DNA.

       We conclude that the trial court’s findings are supported by the record. Testimony

from the 1990 trial established that the gun was oiled down, immersed in a gun-cleaning

solvent, cleaned, and test-fired, soon after police had recovered it from a riverbed where

it had laid submerged for 138 days after the murder. Additionally, Turner’s affidavit

established that, as in Reed, many people handled the gun without gloves at trial. These

pieces of evidence support the trial court’s finding that the gun has not “been subjected

to a chain of custody sufficient to establish that it has not been substituted, tampered with,




                                              8
replaced, or altered in any material respect.” See TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(A)(ii); Reed, 541 S.W.3d at 770.

       As to the tennis shoes, appellant argues that “[a]ll the items photographed in the

evidence box are self-contained in their own packaging” and that “the open bag in which

the tennis shoes were packaged demonstrates definitively the tennis shoes, and

particularly the tips of the tennis shoes, are inside the packaging.”

       We disagree. The photos depict several items in the evidence box, but not all of

them are separately packaged.5 And while the photos clearly show that the paper bag

containing the tennis shoes is torn open, they do not clearly show that the “tips” of the

shoes are “inside” the packaging or that any part of the shoes would be protected from

contamination.         Instead, the evidence showed that the shoes were submerged

underwater for 138 days; stored in a torn, open paper bag; commingled with at least some

other pieces of evidence in the box that were not individually packaged; and handled

without gloves by many people at trial. Further, it is noteworthy that the shoes tested

negative for the presence of blood prior to trial. Although newer testing techniques may

reveal the presence of “touch DNA” even where there is no blood, Reed demonstrates

that the ungloved handling of the evidence by many people is indicative of contamination

that would “cast[] doubt on the evidence’s integrity” for purposes of this kind of testing.

Reed, 541 S.W.3d at 770. This evidence, taken together, supports the trial court’s finding

that the tennis shoes have not “been subjected to a chain of custody sufficient to establish

that [they have] not been substituted, tampered with, replaced, or altered in any material




       5   For example, the jar initially used to store the gun is not individually packaged.

                                                       9
respect.” See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(ii); Reed, 541 S.W.3d at

770.

       Appellant’s first issue is overruled.

B.     Request for Abatement

       Appellant argues by his second issue that, by ruling on his motion a mere seven

business days after the State filed its response, the trial court “effectively prevented [him]

from responding to the affidavits” included in State’s response. Appellant asks us to abate

the appeal, remand the case, and direct the trial court “to allow responsive affidavits and

make additional findings and conclusions based on Appellant’s response.” We decline to

do so. As appellant recognizes, a trial court is not required to hold an evidentiary hearing

in determining a motion for DNA testing under chapter 64. Ex parte Gutierrez, 337 S.W.3d

at 893; Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002). The trial court may

even rule on a chapter 64 motion without receiving a response from the State. Whitaker

v. State, 160 S.W.3d 5, 9 (Tex. Crim. App. 2004). Aside from case law showing that a

hearing is not required, appellant cites no authority, and we find none, showing that he is

entitled to reply to the State’s response to a chapter 64 motion, nor that he is entitled to

any particular amount of time in which to do so. See TEX. R. APP. P. 38.1(i). Further,

appellant does not explain what any “responsive affidavits” would have shown or whether

their exclusion affected his substantial rights. See id.; TEX. R. APP. P. 44.2(b) (standard

for reversible error). Appellant’s second issue is overruled.

C.     Constitutional Ramifications of Reed v. State

       Finally, appellant contends by his third issue that the “statutory construction of

article 64.03(a)(1)(A)(ii) necessitated by the sufficiency of the evidence ruling in Reed”



                                               10
violates due process under the United States and Texas Constitutions. Appellant argues

that, because it applied “evidentiary sufficiency standards of review,” Reed “necessitates”

a construction of article 64.03(a)(1)(A)(ii) which violates his right to due process. More

specifically, appellant argues that the Reed Court “engrafted a non-existent statutory

element—evidence of lack of contamination—on the authentication requirements” of

article 64.03(a)(1)(A)(ii) and that this ruling “imposes impossible hurdles for post-

conviction DNA testing under Chapter 64.”6 Appellant further contends, without reference

to authority, that “[t]o comport with State and Federal due process requirements of

consistency and non-illusory protections, Chapter 64’s authenticity requirement must be

construed and applied consistently with well-settled standards governing authenticity and

chain of custody” in trial settings.

        The State argues that appellant waived his due process complaint because he did

not raise it before the trial court. We agree. See TEX. R. APP. P. 33.1(a); Fuller v. State,

253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (noting that “even constitutional

error . . . may be forfeited if the appellant failed to object” in the trial court). We observe,

in any event, that the Reed Court did not apply an evidentiary-sufficiency standard of

review in determining whether the trial court erred in denying the motion for DNA testing;

rather, it applied the bifurcated standard set forth above. Reed, 541 S.W.3d at 768–69

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

        We overrule appellant’s third issue.




        6Appellant acknowledges that similar constitutional arguments were made by Reed in a motion for
rehearing before the Texas Court of Criminal Appeals and in a petition for writ of certiorari before the United
States Supreme Court, both of which were denied without an opinion.

                                                     11
                                     III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                       DORI CONTRERAS
                                                       Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of April, 2019.




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