            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

       P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, W OMACK, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. J OHNSON,
J., concurred in the result.

                                         OPINION

       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.1 We affirm



       1

         TEX . CODE CRIM . PROC. ch. 64. Because the appellant was sentenced to death, direct appeal
is to this Court. Id. art. 64.05.
                                                                             HOLBERG — 2

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
                                                                               HOLBERG — 3

robbery and burglary.2 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.3 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.4

       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;5

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.6 The appellant now appeals the convicting court’s adverse ruling on her

       2

       See TEX . PENAL CODE §§ 19.03(a)(2), 29.02(a)(1), & 30.02(a)(1), (3).
       3

        Towery had various physical ailments causing chronic pain and requiring prescription
medications. The appellant, meanwhile, had a history of prescription pain medication abuse.
       4

       Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App. 2000).
       5

       TEX . CODE CRIM . PROC. art. 64.01(a-1).
       6

       TEX . CODE CRIM . PROC. art. 64.03(a)(2)(A).
                                                                                 HOLBERG — 4

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.”7 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.8 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.”9 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




       7

        TEX . CODE CRIM . PROC. art. 64.01(a-1).
       8

      See TEX . CODE CRIM . PROC. art. 64.01(b); see also State v. Swearingen, __ S.W.3d __, 2014
WL 440910, at *3 (Tex. Crim. App. Feb. 5, 2014) (explaining the requisites of Chapter 64 motions).
       9

        TEX . CODE CRIM . PROC. art. 64.03(a)(1).
                                                                                HOLBERG — 5

delay the execution of [the appellant’s] sentence[.]” 10

       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.” 11 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.12 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




       10

        TEX . CODE CRIM . PROC. art. 64.03(a)(2).
       11

        TEX . CODE CRIM . PROC. art. 64.03(a)(1)(A)(ii).
       12

        The appellant does not presently have an execution date.
                                                                                     HOLBERG — 6

questions.13 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.14        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.”15 “[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[.]”16       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



        13

        E.g., Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
        14

         See Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002) (“The language of Article
64.03(a)(2)(A) and its legislative history . . . do not contemplate a consideration of appellant’s ‘new’
post-trial information.”).
        15

        TEX . CODE CRIM . PROC. art. 64.01(a-1).
        16

        TEX . CODE CRIM . PROC. art. 64.01(a)(1).
                                                                                     HOLBERG — 7

probable.”17 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.18

       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.”19 And Dr. Rick Staub, an Independent Forensic DNA




       17

       Swearingen, 2014 WL 440910, at *4 (citing, inter alia, Routier v. State, 273 S.W.3d 241,
250 (Tex. Crim. App. 2008)).
       18

        See Routier, 273 S.W.3d at 250 (Tex. Crim. App. 2008) (“Nothing in Chapter 64 entitles
[the appellant] to have [a non-DNA test] performed . . . as a predicate to seeking post-conviction
DNA testing.”).
       19

        Johnson also states that “[t]he storage conditions under which the wallet has been maintained
while in possession of the State are uncertain. If the wallet was properly preserved, . . . however, it
could be reliably presumptively tested for the presence . . . of blood.” (emphasis added). This calls
into question her conclusion that there is a “high probability” that the wallet contains biological
material. Additionally, these statements suggest that a predicate test—one “for the presence . . . of
blood”—is required before an actual DNA test may be performed. But, as mentioned, Chapter 64
movants are not entitled to such testing. See Routier, 273 S.W.3d at 250 (Tex. Crim. App. 2008).
                                                                                    HOLBERG — 8

Consultant,20 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”)21 and Johnson (“there is a high probability that she . . . left blood on the . . .

wallet”)22 —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.”23 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

       20

          We note that although both parties refer extensively to Dr. Staub’s affidavit, after an
exhaustive search of the record, Staub’s affidavit is nowhere to be found. In light of our disposition
of this issue, however, we need not speculate as to the implications of the absence of this affidavit
in the appellate record. But see Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (it
is the “appellant’s burden to bring forward a record on appeal sufficient to show that the trial court
erred in [its] ruling on the motion”) (citing Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim.
App. 2003)).
       21

        Emphasis added.
       22

        Emphasis added.
       23

        2014 WL 440910, at *4.
                                                                                      HOLBERG — 9

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,24 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.25 This Court has construed “exculpatory results” to mean


        24

         In our 2014 opinion in Swearingen, we stated that a Chapter 64 movant “must prove
biological material exists and not that it is merely probable” and cited, in support of that proposition,
both our earlier opinion in Swearingen, decided in 2010, and Routier, decided in 2008. See
Swearingen, 2014 WL 440910, at *4 (citing Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim.
App. 2010), and Routier, 273 S.W.3d at 250). In each of these earlier opinions, Article 64.01(a)
provided only that “[a] convicted person may submit to the convicting court a motion for forensic
DNA testing of evidence containing biological material.” TEX . CODE CRIM . PROC. art. 64.01(a)
(2007) (emphasis added), amended by TEX . CODE CRIM . PROC. art. 64.01(a) (2011). In 2011,
however, Article 64.01(a) was amended to make clear that “biological material” includes all “other
identifiable biological evidence that may be suitable for forensic DNA testing.” TEX . CODE . CRIM .
PROC. art. 64.01(a) (emphasis added). We need not, based on our disposition of this issue, decide
whether this amendment to Article 64.01(a) operates to lessen the burden on Chapter 64 movants
to prove the existence of biological material within the items they seek to have tested. In any event,
the instant appellant does not pursue such an argument in her brief, and we will accordingly leave
this issue to be resolved at such time as it may be squarely before us.
        25

        See Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005).
                                                                               HOLBERG — 10

only results “excluding [the convicted person] as the donor of this material . . . .” 26

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.”27 Theft, in turn, occurs when “[a] person . . .

unlawfully appropriates property with intent to deprive the owner of property.” 28 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


       26

        Swearingen, 2014 WL 440910, at *5 (quoting Blacklock v. State, 235 S.W.3d 231, 232
(Tex. Crim. App. 2007)).
       27

       TEX . PENAL CODE § 29.02(a)(1).
       28

        See TEX . PENAL CODE § 31.03(a).
                                                                                     HOLBERG — 11

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.” 29

        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

        29

         Holberg v. State, No. 73,127, slip op. at 11 (Tex. Crim. App. Nov. 29, 2000) (opinion on
point of error not designated for publication; see TEX . R. APP . P. 77.2 (“A majority of the judges will
determine . . . whether the opinion (or a portion of the opinion) will be published.”)). Because
Westlaw’s pagination of the unabridged opinion ends at page 141 (which is the location of the
concluding paragraph of the published—and, therefore, abridged—opinion in the physical reporter),
the best we can do to provide an electronic source is to direct the reader to paragraph 19 of the
unabridged Holberg opinion, found on the Westlaw website at 38 S.W.3d 137 (discussing “point of
error number seventeen”). We also observed, in our discussion of that point of error, that the trial
court generally “instructed the jury accurately on the pertinent statutory elements of capital murder,
murder, manslaughter, robbery, burglary, and theft.” Id.
                                                                            HOLBERG — 12

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
                                                                              HOLBERG — 13

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,30 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




       30

        TEX . CODE CRIM . PROC. art. 64.03(a)(2)(A).
