                                                                                AP-77,054
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
February 23, 2015                                          Transmitted 2/23/2015 3:22:39 PM
                                                             Accepted 2/23/2015 3:58:29 PM
                                                                               ABEL ACOSTA
                               No. AP-77,054                                           CLERK


                                  IN THE
                    Court of Criminal Appeals of Texas
                              RODNEY REED,
                                      Appellant,
                                   v.
                           THE STATE OF TEXAS
                                      Appellee.

On Appeal from the 21st Judicial District Court, Bastrop County, Texas

                              STATE’S BRIEF
         ORAL ARGUMENT CONDITIONALLY REQUESTED

                                 BRYAN GOERTZ
                                 Criminal District Attorney
                                 Bastrop County, Texas

                                 MATTHEW OTTOWAY
                                 Assistant Attorney General/
                                 Assistant District Attorney
                                 Bastrop County, Texas
                                 Texas Bar No. 24047707

                                 Post Office Box 12548, Capitol Station
                                 Austin, Texas 78711
                                 Tel.: (512) 936-1400
                                 Fax: (512) 320-8132
                                 Email: matthew.ottoway@texasattorney
                                               general.gov

                                 Attorneys for the State
           IDENTITIES OF PARTIES AND COUNSEL

Appellant
     Rodney Reed

Appellant’s hearing and appeal counsel
     Bryce Benjet
     The Innocence Project
     40 Worth Street, Suite 701
     New York New York 10013

     Andrew MacRae
     Levatino|Pace, LLP
     1101 S. Capital of Texas Highway
     Building K, Suite 125
     Austin, Texas 78746

Appellee
     The State of Texas

Appellee’s hearing and appeal counsel
     Bryan Goertz
     Criminal District Attorney of Bastrop County
     804 Pecan Street
     Bastrop, Texas 78602

     Matthew Ottoway
     Travis Bragg
     Assistant Criminal District Attorneys/
     Assistant Attorneys General
     Post Office Box 12548, Capitol Station
     Austin, Texas 78711




                                  i
                                 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................... i
TABLE OF CONTENTS ............................................................................ii
INDEX OF AUTHORITIES ...................................................................... iv
STATEMENT OF THE CASE ................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ................................... 1
ISSUES PRESENTED ............................................................................... 2
STATEMENT OF THE FACTS ................................................................. 2
I.     Appellant’s litigation history ............................................................. 2
II.    Evidence at Appellant’s trial ............................................................. 7
SUMMARY OF THE ARGUMENT ......................................................... 15
ARGUMENT ............................................................................................. 17
I.     The standards for DNA testing and appellate review.................... 17
II.    Appellant’s motion lacked the required specificity necessary to
       prove compliance with Chapter 64’s requirements ....................... 19
III. The trial court was correct in finding that Appellant did not
     meet his burden of proving that he would not have been
     convicted with exculpatory test results .......................................... 27
        A.      Appellant’s lack of specificity worked to his detriment ....... 28
        B.      The trial court properly eschewed Appellant’s request to
                consider post-trial evidence and such evidence is not
                properly before this Court...................................................... 29
        C.      The trial court applied the proper exculpatory-result
                presumption............................................................................ 32
        D.      Appellant failed to prove by a preponderance of the
                evidence that he would not have been convicted armed
                with exculpatory test results ................................................. 36


                                                   ii
               1.      Items found on Stites .................................................... 36
               2.      Items found near Stites ................................................ 39
               3.      Item discovered by a citizen ......................................... 39
               4.      Items found in or near the truck .................................. 40
               5.      Items presently in the possession of the Bastrop
                       District Clerk ................................................................ 41
IV. The trial court’s finding of unreasonable delay is amply
    supported by the record .................................................................. 42
       A.      The timing, breadth, and ambiguity of Appellant’s DNA
               testing request support the finding of unreasonable
               delay ........................................................................................ 45
               1.      Time between Appellant’s request and his
                       execution date ............................................................... 46
               2.      Promptness of the request and previous
                       opportunities to request testing ................................... 47
       B.      Appellant’s overall litigation history left little doubt that
               his Chapter 64 motion was filed for purposes of
               unreasonable delay ................................................................ 53
V.    Appellant failed to prove chain of custody for items housed by
      the Bastrop District Clerk .............................................................. 55
VI. Appellant did not prove biological material on the non-per se
    items he sought to test .................................................................... 58
VII. The State re-urges its motion to accelerate this appeal ................. 61
PRAYER FOR RELIEF ............................................................................ 62
WORD-LIMIT CERTIFICATE OF COMPLIANCE ............................... 63
CERTIFICATE OF SERVICE.................................................................. 63




                                                     iii
                           INDEX OF AUTHORITIES

Cases
Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002)............................... 44
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) ........... passim
Clarke v. State, 270 S.W.3d 573 (Tex. Crim. App. 2008) ........................ 26
Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002) ............ 26, 27, 28
Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009).......... 35, 36, 37
Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011) ...... 37, 42, 46
Holberg v. State, 425 S.W.3d 282 (Tex. Crim. App. 2014) .............. passim
Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) .......................... 39
Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) .......................... 32
Pace v. DiGuglielmo, 544 U.S. 408 (2005) ............................................... 55
Pate v. State, No. 10-09-00360-CR, 2011 WL 652920
     (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) ................................... 63
Prible v. State, 245 S.W.3d 466 (Tex. Crim. App. 2008) ......................... 61
Riggins v. State, No. 11-03-00307-CR, 2004 WL 743742
     (Tex. App.—Eastland Apr. 8, 2004, no. pet.).................................. 63
Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ...................... 19, 48
Rosales v. State, 748 S.W.2d 451 (Tex. Crim. App. 1987) ................. 55, 59
Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) ........... 20, 33, 34
Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) ................ 48, 57
Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ...................... 57
Skinner v. State, No. AP-76675, 2012 WL 2343616
     (Tex. Crim. App. June 20, 2012) ..................................................... 57
State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002) ............. 47, 51, 52


                                             iv
State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014).......... passim
Swearingen v. State, 189 S.W.3d 779 (Tex. Crim. App. 2006)................ 57
Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App. 2010)................ 57
Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005) .......... 49, 52, 53
Whitaker v. State, 160 S.W.3d 5 (Tex. Crim. App. 2004) ........................ 31
Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) ......... passim
Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006) ........................ 29
Statutes
Tex. Code Crim. Proc. art. 64.01 (a)(2) .................................................... 20
Tex. Code Crim. Proc. art. 64.01(a) ......................................................... 19
Tex. Code Crim. Proc. art. 64.01(a)(1) ..................................................... 20
Tex. Code Crim. Proc. art. 64.01(a–1) ......................................... 17, 59, 64
Tex. Code Crim. Proc. art. 64.01(b) ................................................... 18, 19
Tex. Code Crim. Proc. art. 64.01(b)(1) ..................................................... 20
Tex. Code Crim. Proc. art. 64.01(b)(2) ..................................................... 20
Tex. Code Crim. Proc. art. 64.03(a)(1) ..................................................... 18
Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i)............................................. 64
Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii) ............................... 60, 63, 64
Tex. Code Crim. Proc. art. 64.03(a)(2) ..................................................... 18
Tex. Code Crim. Proc. art. 64.03(a)(2)(A) ................................................ 29
Tex. Code Crim. Proc. art. 64.03(a)(2)(B) .......................................... 47, 52




                                               v
Other Authorities
Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2,
     2001 Tex. Sess. Law Serv. Ch. 2 ..................................................... 49
Act of June 17, 2011, 82nd Leg., R.S., ch. 366, § 1–4,
     2011 Tex. Sess. Law Serv. Ch. 366 ................................................. 49
Rules
Tex. R. Evid. 404(b) .................................................................................. 60
Tex. R. Evid. 406 ....................................................................................... 60




                                                    vi
                      STATEMENT OF THE CASE

      This is an appeal from the denial of DNA testing in a death penalty

case. Appellant moved for DNA testing pursuant to Chapter 64 of the

Texas    Code    of   Criminal     Procedure     (“Chapter     64    motion”).

2.CR(DNA).74–143.1 The State opposed. 2.CR(DNA).161–229, 307–29.

The trial court held a live evidentiary hearing, which concluded with the

denial of Appellant’s Chapter 64 motion. 4.RR(DNA).227.2 The trial

court entered written findings thereafter. 3.CR(DNA).362–68. Appellant

then filed his notice of appeal. 3.CR(DNA).359. The appeal is now before

the Court.

          STATEMENT REGARDING ORAL ARGUMENT

      The State believes that oral argument should be denied. Many of

the issues in this case have been authoritatively decided, the parties’

briefs adequately lay out the facts and legal arguments, and the

decisional process would not be significantly aided by oral argument,

especially given Appellant’s rapidly approaching execution date.




1     “CR(DNA)” refers to the clerk’s record for the Chapter 64 proceeding. The
references are preceded by volume number and followed by page numbers.
2     “RR(DNA)” refers to the reporter’s record for the Chapter 64 hearing. The
references are preceded by volume number and followed by page numbers.

                                      1
Nevertheless, should the Court determine that oral argument is

appropriate, the State requests an opportunity to respond.

                          ISSUES PRESENTED

           Whether the trial court erred by finding that Appellant
      did not prove, by a preponderance of the evidence, that he
      would not have been convicted of capital murder assuming
      exculpatory DNA test results?

            Whether the trial court erred by finding that Appellant
      did not prove, by a preponderance of the evidence, that his
      request for DNA testing was not made to unreasonably delay
      the execution of his sentence or the administration of justice?

            Whether Appellant’s Chapter 64 motion was sufficiently
      specific to meet all of Chapter 64’s statutory requirements?

           Whether there was an adequate chain of custody
      established for items housed by the Bastrop District Clerk?

            Whether Appellant proved that the items he wanted
      tested were or contained biological material?

                     STATEMENT OF THE FACTS

I.    Appellant’s litigation history

      A jury found Appellant guilty of capital murder for abducting,

raping, and strangling to death Stacey Stites, and he was sentenced to

death on May 30, 1998.        1.CR.489–493.3      Appellant’s conviction was



3     “CR” refers to the clerk’s record for Appellant’s capital murder trial. The
references are preceded by volume number and followed by page numbers.


                                       2
affirmed on direct appeal by this Court on December 6, 2000, Reed v.

State, No. 73,135 (Tex. Crim. App. Dec. 6, 2000) (Reed I), and the

Supreme Court of the United States denied Appellant a writ of certiorari

later that next year, Reed v. Texas, 534 U.S. 955 (2001).

      With direct appeal pending, Appellant filed an application for state

habeas relief on November 15, 1999. 2.SHCR-01/02, at 2–251.4 A little

more than a year later, Appellant filed a “supplemental claim.” 3.SHCR-

01/02, at 391–402. On February 13, 2002, this Court denied Appellant’s

initial application on findings by the trial court sitting in habeas and

found the “supplemental claim” to be a subsequent application and

dismissed it as abusive. Ex parte Reed, Nos. 50,961-01, 50,961-02 (Tex.

Crim. App. Feb. 13, 2002) (Reed II).

      Appellant turned to federal court on February 13, 2003, filing a

petition for writ of habeas corpus in the Western District of Texas, Austin

Division. Petition for a Writ of Habeas Corpus, Reed v. Thaler, No. A-02-

CV-142-LY (W.D. Tex. Sept. 26, 2012). The case was stayed and placed

in abeyance on March 1, 2004, so that Appellant could exhaust certain



4     “SHCR-01/02” refers to the clerk’s record for Appellant’s first and second state
habeas proceedings. The references are preceded by volume number and followed by
page numbers.

                                          3
claims through the state system. Order, Mar. 1, 2004, Reed v. Thaler,

No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). Appellant thereafter

proceeded to file four additional state habeas applications.

      On March 29, 2005, Reed filed his third state habeas application.

1.SHCR-03, at 2–343.5 On October 19, 2005, this Court dismissed all of

Appellant’s claims as abusive, with the exception of two claims that were

remanded to the trial court for factual development. Ex parte Reed, No.

WR-50961-03, 2005 WL 2659440, at *1 (Oct. 19, 2005) (Reed III). After a

live evidentiary hearing and findings from the trial court, this Court

issued an exhaustive opinion denying relief and finding that Appellant’s

gateway-innocence claim was not persuasive enough to overcome the

untimeliness of his procedurally defaulted claims. Ex parte Reed, 271

S.W.3d 698 (Tex. Crim. App. 2008) (Reed IV).

      With his third state habeas application pending, Appellant filed his

fourth and fifth state habeas applications on March 5, 2007, and July 16,




5     “SHCR-03” refers to the clerk’s record for Appellant’s third state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.

                                      4
2008, respectively. SHCR-04, at 2–15;6 SHCR-05, at 2–89.7 Both of these

applications were dismissed as abusive by this Court in a single opinion.

Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 2009 WL 97260, at *1–

6 (Tex. Crim. App. Jan. 14, 2009) (Reed V).

      After those proceedings terminated, Appellant filed his sixth state

habeas application on April 21, 2009. SHCR-06, at 2–59.8 This, too, was

dismissed as abusive by this Court. Ex parte Reed, No. WR-50961-06,

2009 WL 1900364, at *1–2 (Tex. Crim. App. July 1, 2009) (Reed VI).

      The stay in federal district court was lifted on August 20, 2009.

Order, Aug. 20, 2009, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.

Sept. 26, 2012).      On June 12, 2012, a federal magistrate judge

recommended denial of relief, Report and Recommendation of the United

States Magistrate Judge, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.

Sept. 26, 2012), which the federal district judge largely adopted, and who



6     “SHCR-04” refers to the clerk’s record for Appellant’s fourth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
7     “SHCR-05” refers to the clerk’s record for Appellant’s fifth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.
8     “SHCR-06” refers to the clerk’s record for Appellant’s sixth state habeas
proceeding. The references are preceded by volume number and followed by page
numbers.

                                       5
independently denied relief on September 26, 2012, Order on Report and

Recommendation, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept.

26, 2012). The federal district judge also denied all of Appellant’s post-

judgment filings on February 4, 2013. Order, Feb. 4, 2013, Reed v.

Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012).

        Appellant then appealed the denial of federal habeas relief, but the

Court of Appeals for the Fifth Circuit affirmed on January 10, 2014. Reed

v. Stephens, 739 F.3d 753 (5th Cir. 2014) (Reed VII). On March 19, 2014,

the same court also rejected Appellant’s attempts at rehearing without a

poll.    On Petition for Rehearing and Rehearing En Banc, Reed v.

Stephens, 739 F.3d 753 (5th Cir. 2014) (No. 13-70009). The Supreme

Court of the United States denied Appellant’s petition for writ of

certiorari from this proceeding on November 3, 2014. Reed v. Stephens,

135 S. Ct. 435 (2014).

        On April 8, 2014, the State requested the setting of Appellant’s

execution for November 19, 2014. 1.CR(DNA).34–35. The trial court

heard the State’s motion on July 14, 2014, and granted a modified

execution date of January 14, 2015. 1.RR(DNA).17. The same day as the

execution-setting hearing, July 14, 2014, Appellant filed his Chapter 64



                                      6
motion.     2.CR(DNA).74–143.        Almost three months later, Appellant

sought a hearing on the Chapter 64 motion. 3.CR(DNA).233–34. Two

weeks after that, Appellant filed an affidavit from a DNA analyst and an

affidavit   from   his    attorney    verifying      his   Chapter   64   motion.

3.CR(DNA).240–56.         Then, the day before the Chapter 64 hearing,

Appellant filed his personal affidavit. 3.CR(DNA).317–18.

      After considering the record and evidence presented at the Chapter

64 hearing, the trial court denied Appellant’s motion because Appellant

failed to prove, by a preponderance of the evidence, that he would not

have been convicted had exculpatory DNA test results been available at

trial and that he did not file his Chapter 64 motion to unreasonably delay

the   execution    of    sentence    or       the   administration   of   justice.

4.RR(DNA).227.          These findings were later reduced to writing.

3.CR(DNA).362–68. The trial court also modified Appellant’s execution

date to March 5, 2015, for administrative reasons.              4.RR(DNA).227.

Appellant then filed his notice of appeal. 3.CR(DNA).359.

II.   Evidence at Appellant’s trial

      Stacey Stites was a happily-engaged nineteen-year-old just

eighteen days shy of her wedding. 43.RR.81–82, 85.              She lived in an



                                          7
apartment complex with her police-officer fiancé, Jimmy Fennell, and her

mother, Carol, who lived in the apartment below Stites’s, and with whom

Stites spent her last days alive planning her upcoming nuptials.

43.RR.81; 44.RR.51.

     Stites worked at a Bastrop, Texas grocery store—the store was

about thirty miles from her residence—and was scheduled for a 3:30 a.m.

shift. 43.RR.95; 44.RR.48. When she did not show, a fellow employee

became worried and eventually called Carol around 6:30 a.m. 43.RR.96,

101–02. In turn, Carol called Fennell, and he went to look for Stites while

Carol informed authorities about Stites’s absence. 44.RR.70–71.

     Before Carol knew about Stites’s disappearance, a Bastrop police

officer had, at 5:23 a.m., discovered the pickup truck Stites took to work—

Fennell’s red, compact truck—seemingly abandoned in a local high school

parking lot. 43.RR.117. Because the truck was not reported stolen, the

officer took no further action. 43.RR.118,122. Before he left, however, he

noticed a piece of a belt lying outside the truck. 43.RR.120.

     Later that day, Stites’s body was found off a rural road. 44.RR.18,

21. Texas Department of Public Safety (DPS) crime laboratory personnel

processed the scene.    44.RR.108.       They observed a partially clothed



                                     8
Stites—her shirt removed, bra exposed, and missing a shoe and an

earring. 44.RR.113. Her pants were undone, the zipper broken, and her

panties were bunched at her hips.        44.RR.113–14, 122. She was

discovered with work apparel—a nametag and a large knee brace.

44.RR.128, 151.    On the side of the road was another piece of belt.

44.RR.115.

     Because of obvious signs of rape, a DPS criminalist took vaginal

and breast swabs from Stites’s body.     44.RR.123; 45.RR.51.    On-site

chemical testing of a vaginal swab signaled the presence of semen.

44.RR.124–27.     Around 11:00 p.m. that night, microscopic analysis

showed the presence of intact sperm, which indicated recent seminal

deposit—based on scientific articles, sperm remains whole within the

vaginal cavity for usually no longer than twenty-six hours. 44.RR.131;

45.RR.15–16.

     Later forensic testing matched the belt fragments to each other,

and it appeared that the belt was torn apart, not cut, 47.RR.83–85, and

Fennell identified the belt as Stites’s, 45.RR.102. A search of the truck

by DPS criminalists yielded Stites’s missing shoe and earring, and the

remnants of a smashed, plastic drinking glass. 47.RR.44–45; 49.RR.34,



                                   9
38. Additionally, the driver’s-side seatbelt was still engaged and the seat

was angled in such a way that a 6’2’’ person could properly utilize the

rearview mirror. 46.RR.101; 49.RR.43.

      Stites’s body was autopsied the next day by Dr. Roberto Bayardo.

48.RR.111. He observed a large mark across Stites’s neck that matched

the pattern of her belt. 48.RR.119–20, 136–37. There were bruises on

Stites’s arms consistent with forcible restraint, bruises on her head

consistent with the knuckles of a fist, and bruises on her left shoulder

and abdomen consistent with an over-the-shoulder seat belt. 48.RR.115–

18.   Based on physical changes in the body, Dr. Bayardo estimated

Stites’s time of death to be 3:00 a.m., give or take four hours. 48.RR.113–

14.

      Dr. Bayardo also took vaginal swabs, in addition to oral and rectal

swabs. 48.RR.121–23. He too observed intact sperm from a vaginal

swab, which he stated indicated “quite recent[]” seminal deposit.

48.RR.121–22.    There were also injuries to Stites’s anus, including

dilation and lacerations. 48.RR.126. These were consistent with penile

penetration inflicted at or near the time of Stites’s death—peri-mortem.

48.RR.126–27. And, Dr. Bayardo, via microscopic analysis, thought he



                                    10
saw sperm heads from a rectal swab, though he acknowledged that

chemical testing was negative for semen from this swab. 48.RR.123–24.

But, he noted however, that sperm break down quicker in the rectal

cavity than in the vaginal cavity, so the fragmented sperm further

indicated recent seminal deposit. 48.RR.125.

     Thereafter, DPS personnel conducted DNA testing on the vaginal,

rectal, and breast swabs, and the results indicated that the foreign DNA

came from a single source. 49.RR.95–113. They also “mapped” Stites’s

panties, which showed little movement after semen was deposited in her

vaginal cavity.   44.RR.190–91; 55.RR.40.      This, too, demonstrated

seminal deposit just before her murder. 55.RR.41.

     For approximately a year, law enforcement—state, county, and

municipal—searched for Stites’s killer to no avail. They interviewed

hundreds and obtained biological samples from twenty-eight males; none

matched the foreign DNA in and on Stites. 46.RR.111–12; 49.RR.114–

19. And none mentioned Appellant associating with Stites. 46.RR.112.

     Appellant became a suspect in Stites’s murder after he was arrested

for kidnapping, beating, and attempting to rape and murder another




                                  11
nineteen-year-old woman, Linda Schlueter. 46.RR.122.9 Schlueter was

abducted by Appellant approximately six months after Stites’s murder,

near both the route Stites typically took to work and the time she

disappeared—3:00 a.m.        61.RR.10, 37–47.      Moreover, Appellant was

regularly seen in this area by Bastrop police officers in the early morning

hours, and his home was close to where both Stites’s and Schlueter’s

vehicles were abandoned. 50.RR.70–73, 80, 95–96. Further, Appellant’s

height—6’2’’—aligned with the angle of the driver’s seat. 49.RR.43.

      Given these similarities, law enforcement inquired with DPS if they

had Appellant’s DNA profile; they did because Appellant had raped his

mildly intellectually disabled girlfriend, Caroline Rivas (this was pre-

CODIS). 46.RR.122–23.10 Appellant’s DNA profile was compared to the

foreign DNA inside and on Stites’s body and the two were consistent.

50.RR.104.    Appellant was then questioned and he denied knowing

Stites. 48.RR.82–83. Additional biological samples were taken from

Appellant pursuant to a search warrant. 48.RR.18, 86–92.




9    The specific facts of Schluter’s abduction, assault, and attempted rape and
murder was not revealed to the jury until the punishment phase of trial.
10    Again, the underlying facts of Rivas’s physical- and sexual-abuse was not
provided to the jury until the punishment phase of trial.

                                      12
     More DNA testing was performed by DPS and a private laboratory

on the new samples from Appellant and those taken from Stites’s body.

49.RR.118–19; 50.RR.120–36, 140; 49.RR.127; 51.RR.33–34. The results

were conclusive—Appellant could not be excluded as the foreign DNA

contributor but 99% of the world’s population could be, and one would

only expect to see the foreign DNA profile in one person in anywhere from

24 to 130 billion people. 49.RR.118, 122; 50.RR.144–45; 51.RR.80. But,

just to be sure, samples were taken from Appellant’s father and three of

his brothers, and they were ruled out as contributors too. 49.RR.123–25

     Appellant’s trial counsel attempted to counter this damning

evidence with a two-pronged attack—they tried to blame someone else

for the murder, and they argued that Appellant and Stites were engaged

in a clandestine, but consensual sexual relationship.

     To prove the former, Appellant’s DNA expert testified that a hair

found on Stites’s back did not match any of the samples gathered by law

enforcement, and a couple of witnesses testified they saw a white truck

with three men in it near the area where Stites’s body was recovered.

51.RR.107–08, 124–25; 54.RR.50–52. The latter witnesses’ testimony

was significantly impeached. 51.RR.115, 119, 128–29.



                                   13
     Trial counsel also suggested that Fennell was the murderer. Law

enforcement interviewed Fennell several times and collected biological

samples from him, but they never searched his apartment. 45.RR.110–

12; 46.RR.62. Fennell was eventually cleared after law enforcement

investigated, and ruled impossible, Fennell’s ability to travel to Bastrop,

murder Stites, and return home for Carol’s phone call within the known

timeframes, and without any sort of transportation. 46.RR.127.

     Further still, trial counsel cast suspicion on David Lawhon, a

Bastrop resident who murdered another woman, Mary Ann Arldt, two

weeks after Stites’s death. 46.RR.158. They called several witnesses that

testified about a connection between Stites and Lawhon, including one

who said Lawhon had confessed to killing Stites. 52.RR.29–31, 89. They

were all greatly impeached—the confession witness actually told police

someone other than Lawhon had confessed to Stites’s murder, Stites’s

good friends testified in rebuttal that Stites never dated Lawhon, and

Lawhon’s ex-wife testified that nothing unusual occurred around the

time of Stites’s murder, which was different than when Lawhon

murdered Ardlt. 52.RR.93; 54.RR.130, 138, 141–43.




                                    14
     As to the secret-relationship defense, one witness testified that she

saw Stites and Appellant talking at the grocery store, and another said

Stites came by Appellant’s house looking for him. 51.RR.136; 53.RR.92.

These were not credible accounts, however, as Appellant’s family were

frequent guests at the first witness’s bar, and the second witness initially

said “Stephanie,” not “Stacey,” was looking for Appellant, and she did not

identify Stites when shown her driver’s license photo. 51.RR.138–39;

53.RR.92–93. The jury found Appellant guilty of two counts of capital

murder. See also Reed IV, 271 S.W.3d at 702–12 (providing an extensive

recitation of the facts from Appellant’s trial).

                   SUMMARY OF THE ARGUMENT

     The trial court did not abuse its discretion in denying Appellant’s

Chapter 64 motion. Initially, Appellant’s Chapter 64 motion suffered

from a lack of specificity and his litigation tactics added to the motion’s

ambiguity creating confusion that continues on appeal. Because of this

confusion, Appellant did not clearly explain to the trial court how he met

all of Chapter 64’s prerequisites to obtain testing. A trial court, however,

does not err in denying relief when a movant fails to clearly articulate

compliance with all the requirements for the relief sought.



                                     15
     Next, the record amply supports the trial court’s finding that

Appellant did not meet his burden of production and persuasion that his

Chapter 64 motion was not made to unreasonably delay the execution of

his sentence or the administration of justice. The record is replete with

Appellant’s dilatory conduct.       Indeed, Appellant, even today, is

attempting to add evidence not before the trial court to seemingly justify

his laggard conduct in seeking DNA testing.             Not only is this

impermissible, it does not show error in the trial court’s decision.

     Moreover, Appellant failed to prove that the evidence he seeks to

test is or contains biological material.      Appellant’s own witnesses

conceded that they could not categorically prove that the items Appellant

sought to test contained biological material; they merely hypothesized

DNA presence by speculating as to the facts of the crime. Guesses,

however, are not evidence.

     Further, with respect to the items in the possession of the Bastrop

District Clerk, Appellant failed to prove a sufficient chain of custody. In

arguing otherwise, Appellant ignores that the statutory chain-of-custody

definition includes the phrases “tampered with” or “altered in any

material respect.” Appellant’s argument and evidence about the ubiquity



                                    16
of “touch” DNA, combined with the undisputed testimony that these

items have been handled by numerous individuals without gloves, prove

that such items has been “tampered with” or “altered in any material

respect.”

     Finally, the trial court did not err in finding that Appellant would

have been convicted despite having exculpatory results on the items he

wishes to test. Appellant attempts to define “exculpatory” in such a way

that DNA testing would always have to be ordered, a proposition recently

rejected by this Court.    And Appellant’s primary basis of argument

focuses on post-trial developments, which is another issue that the Court

has rejected not long ago. Because the trial court’s ruling was correct and

because Appellant fails to demonstrate reversible error, the trial court’s

decision should be affirmed.

                               ARGUMENT

I.   The standards for DNA testing and appellate review.

     Chapter 64 of the Texas Code of Criminal Procedure permits a

“convicted person” to move for “forensic DNA testing of evidence

containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1).

The evidence must have been “secured in relation to the offense that is

the basis of the challenged conviction and was in possession of the state

                                    17
during the trial,” and was either not previously tested or, was tested but

newer techniques could provide “more accurate and probative” results.

Tex. Code Crim. Proc. art. 64.01(b). The convicting court may order

testing, but only if (1) the evidence “still exits 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.” Tex. Code Crim. Proc. art. 64.03(a)(1). Further,

the convicted person must show 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 that “the request for proposed DNA

testing is not made to unreasonably delay the execution of sentence or

administration of justice.” Tex. Code Crim. Proc. art. 64.03(a)(2).

      On appeal, a trial court’s decision regarding DNA testing is

reviewed using a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59

(Tex. Crim. App. 2002). Almost total deference is afforded “a trial court’s

determination of issues of historical fact and application-of-law-to-fact

issues that turn on credibility and demeanor.” Id. All “other application

of law-to-fact issues” are considered de novo. Id.



                                      18
II.   Appellant’s motion lacked the required specificity
      necessary to prove compliance with Chapter 64’s
      requirements.

      Article 64.01 provides preliminary requirements that must be

satisfied for each item a convicted person seeks to test. Tex. Code Crim.

Proc. art. 64.01(a)–(b). An “item” is not the entirety of a physical object,

however, but specific, identifiable portions of the object which are or

contain “biological material.” See Routier v. State, 273 S.W.3d 241, 248

(Tex. Crim. App. 2008). “Biological material” is, in turn, defined by

statute. Tex. Code Crim. Proc. art. 64.01(a)(1)–(2). Thus, a convicted

person is required to specify the locations that he or she seeks to test of

an item that is not per se biological material.

      Then, the convicted person must specify whether each item, down

to the specific location, has been previously tested. Tex. Code Crim. Proc.

art. 64.01(b)(1)–(2). For those items that have not, there is no further

burden under Article 64.01, but for those items that have, the convicted

person must prove that “newer testing techniques” would likely provide

“more accurate and probative” results than those obtained from the prior

tests. Tex. Code Crim. Proc. art. 64.01(b)(1)–(2).




                                    19
     Appellant, in his Chapter 64 motion, sought to test a minimum of

thirty-three items (some singularly listed items were actually multiple

items; for example, “[c]arbon copies of checks”).      2.CR(DNA).115–17

(emphasis added). But, Despite this large testing request, Appellant

attempted to satisfy Article 64.01 by stating, simply, that there were

some “items that have never been subjected to DNA testing” while other

items were “tested in 1998 [but] can also be subjected to . . . considerably

more advanced and sensitive DNA techniques.” 2.CR(DNA).91–92. In

this, Appellant failed to demonstrate which items had been tested and

which had not, he did not specify the regions to be tested on items that

were not per se biological material, and he did not specify the DNA

testing techniques that would provide more accurate and probative

results on those items already tested.

     Moreover, it was unclear exactly what Appellant sought to test.

Appellant referred to an attachment accompanying his Chapter 64

motion as the “complete list of evidence” he wanted tested.

2.CR(DNA).115–17.      However, he mentioned items not found in this

“complete list” in the body of his Chapter 64 motion; for example, he

asked to test items related to the extraneous offenses used at punishment



                                    20
in his Chapter 64 motion but these items were not in the “complete list.”

Compare 2.CR(DNA).77, with 2.CR(DNA).115–17.

      Only months later did Appellant discuss the various types of DNA

testing currently available in his expert’s, Deanna Lankford’s, affidavit.

3.CR(DNA).245–47. But, even then, Appellant only explained that such

DNA testing might be helpful. For example, Appellant discussed the

possibility of using mitochondrial testing, though he did not discuss its

suitability with respect to any particular item. 3.CR(DNA).247. Rather,

he established that mitochondrial testing is a “newer . . . technique,” but

he did not discuss whether it was likely to result in more accurate and

probative results, he still did not specify which items had been tested and

which had not, nor did he specify the locales to be tested on each item.

      And, with this affidavit came more ambiguity about what, exactly,

Appellant wanted to test. The expert mentioned several items to possibly

be tested. 3.CR(DNA).250–53.11 But some of these items were then-being

DNA tested pursuant to an agreement of the parties.                       Compare




11     Belt, blue pants, white t-shirt, condom, hairs, nametag, fingerprints, napkin,
pen, checks, and biological samples from Stites’s body


                                         21
2.CR(DNA).144–48, with 3.CR(DNA).250–53.12                    And several items

mentioned in the Chapter 64 motion and attachment were not discussed

by the expert.

      Then, at the hearing, Appellant introduced more confusion about

what he wanted to test (though, it clarified his true intent—unreasonable

delay).   Appellant’s first witness, John Paolucci, discussed testing a

plethora of items. 2.RR(DNA).30–53. For the first time ever, Appellant

specified regions to be tested on several items included in his Chapter 64

motion. 2.RR(DNA).30–39, 41.13 Appellant also requested testing on

items he had never previously mentioned either in his Chapter 64 motion

on in his expert’s affidavit with specificity. 2.RR(DNA).34–37, 39, 41–42,

44, 46, 50, 53–55.14 Still yet, Appellant asked for preliminary testing on

items he never before listed—with one exception—to determine if they




12    Vaginal, rectal, and breast swabs; four specific hairs; and a cutting from the
panties.
13    Blue pants (cuffs, waistband, button opening, and button); panties
(waistband); bra (clasp); and a white t-shirt (collar).
14     Socks (heel and cuff); left shoe (heel and laces); right shoe (heel and laces);
HEB-branded shirt (collar, cuffs, armpits); pieces of a green cup; brown planner; beer
cans (lip); hair from brown planner; victim’s hand bags; extracts from condom; and
extracts from beer cans.


                                         22
contained biological material. 2.RR(DNA).45–47, 49–50, 52.15 And then

Appellant, maybe, abandoned (or not) testing on several other items,

some previously listed and some not. 2.RR(DNA).40, 42, 44–45.16

      Appellant’s second witness, Deanna Lankford, like Paolucci,

discussed potentially testing a number of items. 3.RR(DNA).106–24.

She, too, discussed testing certain regions of items that Appellant had

discussed only at the item-level in his Chapter 64 motion, though she

specified more areas than Paolucci did. 3.RR(DNA).106–10.17 And she,

too, mentioned items not contained in Appellant’s Chapter 64 motion or

specific in her prior affidavit, though she did not mention preliminary

tests on some of these items like Paolucci did and she, again, mentioned

additional areas to be tested on certain items. 3.RR(DNA).110–11, 115–

17.18 Lankford also testified about items for which she only suggested




15    White flakes; two tape lifts from Stites; paper napkin (requested in Chapter 64
motion); green blanket; driver’s seat tape lifts; and white paper sheet.
16     Back brace (not previously requested); bridal receipt (previously requested);
knee brace (not previously requested); and maybe automatic teller and Walmart
receipts (“skipping over paper items,” which were previously requested).
17   Blue pants (crotch, zipper, button, waistband, and cuffs); and panties (crotch
and waistband).
18     Socks; left shoe; right shoe; HEB-branded shirt; pieces of a green cup; brown
planner; white flakes; two tape lifts from Stites; beer cans (lip and crush ridges);
victim’s hand bags; and unspecified extracts.


                                         23
preliminary testing to determine if biological material existed.

3.RR.(DNA).119.19         Finally, there were many items that Paolucci

discussed that Lankford did not, or at least with specificity.20 The State

objected to the items not specified in Appellant’s Chapter 64 motion. E.g.,

2.RR(DNA).31.

      On appeal, it is still not entirely clear what Appellant wants to test.

Does Appellant no longer want to test specific areas of items that only

Lankford mentioned but Paolucci did not?21 Does Appellant wish to

forego testing on items mentioned by Paolucci or Lankford but not

discussed on appeal?22 Does Appellant abandon those items listed in his

motion but not discussed at the hearing or on appeal?23

      On top of that ambiguity, Appellant still has not specified which

items have been tested and which have not and what type of testing he



19    White paper sheet; and driver’s side tape lifts.
20    Back brace; bridal receipt; knee brace; green blanket; hair from brown planner;
extracts from condom; and extracts from beer cans.
21    Blue pants (crotch and zipper); and panties (crotch).
22    Back brace; bridal receipt; knee brace; white flakes; tape lifts from Stites;
paper napkin; green blanket; driver’s seat tape lifts; white paper sheet; and biological
samples from Stites’s body.
23    Carbon copies of checks; gas emergency book; automated teller receipt;
Walmart receipt; business card; plastic bag; blue rope; brown rope; piece of a shirt;
and piece of a knife.


                                          24
would perform on each previously tested item. As Lankford admitted at

the hearing, for example, mitochondrial testing cannot prove identity.

3.RR(DNA).162. Are mitochondrial results, therefore, more probative

than the results of testing previously run on the beer cans in 2001?

Because Appellant has never provided the specificity needed to make

such determinations, the answers to such questions are not found in this

record.24

      Appellant’s hodgepodge testing request, ever changing and still not

clear, is reason to affirm the trial court’s denial of his Chapter 64 motion.

In Dinkins v. State, like here, the convicted person requested testing of

certain items in his Chapter 64 motion and then requested more items at

the hearing on the motion. 84 S.W.3d 639, 640–41 (Tex. Crim. App.

2002). This Court affirmed the denial of Dinkins’s Chapter 64 motion, in

part, because the Court was “not entirely clear as to what evidence

[Dinkins] wants tested.” Id. at 642. This was because Dinkins “never




24     To prevent the problem that Appellant created here—a moving target of items
that he wished to test—the Court should adopt the same rule utilized in motions for
new trial. Namely, a new-trial movant cannot amend his motion for new trial at a
hearing on the same if the State objects. See Clarke v. State, 270 S.W.3d 573, 580–
81 (Tex. Crim. App. 2008). The State, in Appellant’s case, repeatedly objected to
testing of items raised for the first time at the hearing and, so, the trial court’s
decision should be affirmed as to those dilatorily raised items.

                                        25
explained the discrepancy between his original motion and [his expert’s]

report.” Id. The “discrepancy” in Dinkins pales in comparison with the

one present here and, as such, the Court should affirm the decision

denying Appellant DNA testing.

      Additionally, like in Dinkins, Appellant only made “general

statements about the type of DNA testing that was available at the time

of . . . trial [and] he failed to specifically address the issue of whether at

the time of . . . trial the type of DNA testing necessary to test [those items

already tested] was capable of providing probative results.” Id. at 642.

Swabs from Stites’s vaginal and rectal cavities and her breasts, a stain

from the crotch of her panties, stains from her pants, a stain from her

back brace, several hairs, and swabs from the beer cans were all tested

at the time of trial, 49.RR.92–93; 54.RR.44; Reed IV, 271 S.W.3d at 713–

14, and the beer cans were re-tested as part of Appellant’s second state

habeas proceeding, Reed IV, 271 S.W.3d at 738–39, but Appellant has not

provided specific analysis with any of these previously tested items, just

the “general statements” that were found to be insufficient in Dinkins.

Thus, the Court should affirm trial court’s ruling on these items (which

Appellant may or may not still want to test).



                                     26
III. The trial court was correct in finding that Appellant did not
     meet his burden of proving that he would not have been
     convicted with exculpatory test results.

      Appellant attacks the trial court’s decision that he did not prove, by

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

presuming exculpatory results on the items he sought to test. Appellant’s

Br. 41–60. Appellant’s arguments fall into two broad categories.

      Appellant’s first and primary contention is that the trial court

should have considered post-trial evidence in making its Article

64.03(a)(2)(A) finding. Appellant’s Br. 44–52. Appellant has provided

the Court with the should-have-been-considered post-trial evidence in

two appendix volumes. App’x 5, 21–22. In a footnote, Appellant argues

that this Court may consider the appended evidence “under the doctrine

of judicial notice.” Appellant’s Br. 48 n.22.

      Second,   Appellant    asserts    that    the   trial   court   used   an

impermissibly narrow construction of the term “exculpatory” in making

its probabilistic determination of whether Appellant would have been

found guilty armed with the results of new testing. Appellant’s Br. 53–

60.   Instead, Appellant argues that the appropriate exculpatory

presumption under Article 64.03(a)(2)(A) is that the DNA of a third party,



                                       27
known offender would be found on the items the convicted person seeks

to test. Appellant’s Br. 52–60. Appellant’s complaints are without merit

and the trial court’s decision should be upheld.

     A.    Appellant’s lack of specificity worked to his detriment.

     As noted above, a convicted person must prove by a preponderance

of the evidence that he or she would not have been convicted assuming

exculpatory results on the items sought to be tested. Tex. Code Crim.

Proc. art. 64.03(a)(2)(A). It is clear that the convicted person bears the

evidentiary burden on this point. See, e.g., Wilson v. State, 185 S.W.3d

481, 484 (Tex. Crim. App. 2006). Moreover, courts cannot “consider post-

trial evidence when deciding” this issue. Holberg v. State, 425 S.W.3d

282, 285 (Tex. Crim. App. 2014).

     Initially, Appellant’s lack of clarity hampers his ability to show that

the trial court erred. He faults the trial court’s oral ruling for containing

“no findings of fact [and] no relevant evidence,” Appellant’s Br. 41, but

Appellant’s lack of specificity as to which items to test and how each item

fits into the larger evidentiary picture looms over his case even today. As

demonstrated above, see supra Argument II, the State is still not sure

what Appellant wants to test. It is hard to fault the trial court’s ruling



                                     28
that Appellant failed in his burden of proof when Appellant did not even

clearly articulate which items the trial court was supposed to apply the

presumed-exculpatory-result standard. Because he did not make clear

precisely what items were to factor into the Article 64.03(a)(2)(A) test,

Appellant cannot demonstrate error in the trial court’s ruling.

     B.    The trial court properly eschewed Appellant’s request
           to consider post-trial evidence and such evidence is not
           properly before this Court.

     As to Appellant’s failure-to-consider-post-trial-evidence complaint,

Holberg demonstrates that Appellant is clearly wrong and that the trial

court was clearly right to not consider such evidence. In rejecting the

same type of tactic Appellant uses, the Court held:

     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 . . . DNA testing would alter the
     landscape if added to the mix of evidence that was available
     at the time of trial.

Holberg, 425 S.W.3d at 285.         Holberg is absolutely dispositive of

Appellant’s point of error and the trial court did not err by failing to

consider Appellant’s post-trial evidence.

     In addition, much of the evidence Appellant now relies upon he

failed to provide to the trial court despite the fact Appellant’s request for


                                     29
a live hearing was granted, something which the trial court was not

required to do. See Whitaker v. State, 160 S.W.3d 5, 8–9 (Tex. Crim. App.

2004) (“Nothing in Chapter 64 requires the trial court to conduct a

hearing, regardless of whether the State attaches affidavits to its

response”). Thus, Appellant has forfeited his right for this evidence to be

considered, independent of Holberg, because he did not introduce it at the

evidentiary hearing on his Chapter 64 motion. Cf. Mays v. State, 285

S.W.3d 884, 889 (Tex. Crim. App. 2009) (“In order to preserve error

regarding a trial court’s decision to exclude evidence, the complaining

party must . . . make[] an ‘offer of proof’ which sets forth the substance of

the proffered evidence.”). Thus, the trial court did not err in its Article

64.03(a)(2)(A) ruling with evidence that Appellant did not even attempt

to introduce at the Chapter 64 hearing.

     Additionally, this Court should not consider the appended, post-

trial evidence, separate from Holberg and Appellant’s forfeiture of the

issue, because “[g]eneral considerations governing appellate review apply

here.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).

First, “[a]n appellate court may not consider factual assertions that are

outside the record, and a party cannot circumvent this prohibition by



                                     30
submitting an affidavit for the first time on appeal.”      Id. (footnotes

omitted). Second, “an appellate court’s review of the record itself is

generally limited to the evidence before the trial court at the time of the

trial court’s ruling.” Id. (footnote omitted). Both considerations apply

here and both counsel against Appellant’s attempt to unmoor the trial

court’s ruling from the record before it.

     Appellant’s pursuit to thwart these well-worn rules finds no home

in Routier, despite Appellant’s argument to the contrary. Rather, Routier

stands for the unremarkable proposition that trial courts, in engaging in

probabilistic determinations about how either new or additional evidence

would have affected a trial if such evidence had been presented at trial,

must, necessarily, consider the facts of the trial. See Routier, 273 S.W.3d

at 244 n.2 (“However, in its order denying appellant’s motion for post-

conviction DNA testing, the convicting court did indicate it had

considered ‘the evidence adduced at trial[.]’” (alteration in original)).

Nothing in Routier remotely stands for the proposition that, in making

an Article 64.03(a)(2)(A) determination, that post-trial evidence can be

considered. Even if it did, Holberg’s more recent vintage and its express,

directly-on-point holding means Holberg controls.       Thus, Appellant’s



                                     31
attack on the trial court’s ruling for not having considered post-trial

evidence fails.

     C.    The trial court applied the proper exculpatory-result
           presumption.

     As to Appellant’s incorrect-exculpatory-presumption argument,

that, too, fails. In one of the Court’s most recent Chapter 64 opinions, the

Court defined “‘exculpatory results’ to mean only results ‘excluding [the

convicted person] as the donor of this material.’” State v. Swearingen,

424 S.W.3d 32, 38 (Tex. Crim. App. 2014) (alteration in original)

(emphasis added) (quoting Blacklock v. State, 235 S.W.3d 231, 232 (Tex.

Crim. App. 2007)). While Appellant suggests that cases like Blacklock

and Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009), support his

third-party-presumption argument, they actually undermine it.

     In Blacklock, the Chapter 64 movant had been convicted of

aggravated robbery and aggravated sexual assault. 235 S.W.3d at 232.

He sought to test vaginal smears from the victim and semen left on the

victim’s pants and panties during the attack. Id. This Court reversed a

court of appeals, noting that the record established that the “victim’s lone

attacker is the donor of the material for which [the] appellant seeks DNA

testing.” Id. (emphasis added). Thus, if DNA testing “exclud[ed] [the]


                                    32
appellant as the donor of th[e] [semen],” it would have establish his

innocence. Id. This firmly stands for the proposition that trial courts are

only to presume that the results of testing would “exclud[e]” the convicted

person, not include someone else.

       In Esparza, the underlying crime was an aggravated sexual

assault. 282 S.W.3d at 914–17. The convicted person sought to test a

rape kit, including vaginal and oral swabs and a fabric cutting. Id. at

918.   In reversing the court of appeals, this Court held that it was

improper for the court of appeals to assume “the presence of a third

party’s DNA” in deciding whether the convicted person would not have

been convicted presuming exculpatory results.       Id. at 921.   Instead,

because it was undisputed that the victim’s “attacker deposited semen or

seminal fluid inside [the victim] during the assault,” id., a convicted

person in a “sexual assault case[]” can prove innocence if the DNA from

a rape kit is presumed to not to be his. Id. at 922. Esparza, which relied

heavily on Blacklock, supports the proposition that the proper

exculpatory result is simply that the convicted person’s DNA would not

be found on the items he or she desired to test.       See also Ex parte

Gutierrez, 337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (“The burden



                                    33
under Article 64.03(a)(2)(A) is met if the record shows that exculpatory

DNA test results, excluding the defendant as the donor of the material,

would establish, by a preponderance of the evidence, that the defendant

would not have been convicted.” (emphasis added)).

     Moreover, it is clear that the trial court was prohibited from

assuming that any item would bear the DNA of a known offender. This

was recently rejected in Swearingen, where the Court stated:

           A requirement to assume that the results of testing were
     not only from someone other than the convicted person but
     that the other person was a repeat offender (or as the appellee
     argued before this court, a repeat offender with a similar
     modus operandi), makes it hard to imagine a case in which we
     would not grant DNA testing. Such compelling DNA results
     would certainly overcome any mountain of inculpatory
     evidence. We believe that had the legislature meant to so
     drastically lower the barrier for Chapter 64 testing, they
     would have said so explicitly. The statute requires only that
     the results be run through CODIS. It does not set a standard
     for exculpatory results.

424 S.W.3d at 39. As such, the trial court was correct in not applying the

presumption of a CODIS-matched DNA result in determining whether

Appellant would have been convicted when factoring in exculpatory test

results.

     Applying the proper exculpatory presumption—that Appellant’s

DNA would not be found on a particular item—it is clear that the trial


                                   34
court did not err. However, this Court should find that Appellant has

forfeited the issue on appeal, at least as to how an exculpatory result on

any particular item would factor into the trial evidentiary mix. While

attempting to demonstrate error in how the trial court came to the

conclusion that Appellant did not prove that he would have likely been

convicted presuming exculpatory results, he does not actually discuss

why the trial court’s decision is erroneous with respect to any particular

item he (maybe) seeks to test. Put another way, Appellant does not

describe how the absence of his DNA on each item he (maybe) seeks to

test would prove that he would likely not have been convicted considering

only the evidence at trial.

      Appellant’s primary substantive argument (instead of process-

based argument) in challenging the adverse Article 64.03(a)(2)(A) finding

is this—had the trial court presumed “an alternative known

suspect . . . on the evidence [Appellant] seeks to test (i.e., the belt used to

strangle Ms. Stites, the victim’s name tag, her clothing, fingernail

scrapings, and other evidence very likely handled by her killer),” it could

only have concluded that Appellant would not have been found guilty.

Appellant’s Br. 57–58. But this cursory briefing is hardly an item-by-



                                      35
item analysis of how each item fits into the evidence at trial. As such,

the State respectfully requests that the Court find this issue forfeited on

appeal for inadequate briefing. See Lucio v. State, 351 S.W.3d 878, 896–

97 (Tex. Crim. App. 2011) (finding that the failure to provide record

citations in relation to the applicable legal authority was inadequate

briefing). Nevertheless, the State alternatively addresses the evidence

Appellant at least mentions in his brief to demonstrate the correctness of

the trial court’s Article 64.03(a)(2)(A) finding.

     D.    Appellant failed to prove by a preponderance of the
           evidence that he would not have been convicted armed
           with exculpatory test results.

           1.    Items found on Stites

     Concerning the pants, the jury heard that there were two saliva

stains on them, which had DQ Alpha alleles 1.2 and 4. 49.RR.112. The

jury knew that Stites had DQ Alpha alleles of 1.2 and 4, 49.RR.101, and

that Appellant’s DQ Alpha alleles were 1.2 and 3, 49.RR.118.

Consequently, the jury knew Appellant’s DNA was not found on Stites’s

pants and they nevertheless convicted him. Thus, he does not prove by a

preponderance that the jury would not have convicted him given that

they already knew his DNA was not found on Stites’s pants.




                                     36
        As to the panties, the jury learned that DQ Alpha alleles of 1.2 and

3 and D1S80 alleles of 22 and 24 were discovered in them. 49.RR.110.

The jury knew Appellant’s DQ Alpha alleles were 1.2 and 3 and his

D1S80 alleles were 22 and 24. 49.RR.118–19. Thus, Appellant matched

the male fraction found in the panties at these alleles. If Appellant was

not found in the panties, however, the jury would still have known that

his DNA was on Stites’s breasts, 49.RR.111, in her vaginal cavity,

49.RR.104, and in her rectal cavity, 49.RR.107. Thus, Appellant does not

demonstrate that he would not have been convicted had his DNA been

“only” in and on Stites’s body, instead of in her panties.

        Similarly, had the jury known that Appellant’s DNA was not on the

socks, shoes, and bra, they still would have convicted Appellant.

Contrary to Appellant’s witnesses’ opinions at the Chapter 64 hearing,

the jury heard testimony that there was no evidence to indicate Stites

had been dragged to her resting place. 44.RR.153. Accordingly, the jury’s

result would not have been any different had they known Appellant’s

DNA was not on these items of clothing, but “only” inside and on Stites’s

body.




                                      37
     The lack of Appellant’s DNA on Stites’s nametag also would not

prove he would not have been convicted. The jury knew the nametag was

tested for fingerprints, 47.RR.30, but that Appellant’s fingerprints were

not on it, 47.RR.42. As such, the jury knew that Appellant was not linked

with the item, yet still they convicted him. Again, Appellant does not

show that if his DNA was not on this item that he would have avoided

conviction.

     Finally, regarding the hand bags, there was testimony that no

evidence was collected from Stites’s fingernails because “[t]hey were so

short that it was impossible to even try to clip anything, much less try to

scrape anything from underneath them.” 44.RR.163. And there was no

testimony that Stites fought her attacker. As such, the jury would not

blink if Appellant’s DNA was not found underneath Stites’s nails, which,

according to Appellant, could possibly be found in the bags around her

hands.   See Ex parte Gutierrez, 337 S.W.3d at 900–01 (finding no

reasonable probability of not being convicted because there was “no

evidence to suggest that the [victim] was able to hit or scratch her

murderers with her fingernails as they attacked her”).




                                    38
           2.   Items found near Stites

     Jurors heard that Stites borrowed the white t-shirt from Fennell.

45.RR.108. And jurors heard that both the white t-shirt and the belt

fragment were subjected to fingerprint analysis but that Appellant’s

fingerprints were on neither item. 47.RR.43–44, 49. Again, the jury’s

decision would not have been affected by not finding Appellant’s DNA on

either item.

     Regarding the beer cans and their extracts, the jury heard the cans

were collected off the side of the road, 45.RR.25, and that it was not

uncommon to find such items on country roads, 45.RR.45. Assuming that

Appellant’s DNA is not on these items does not prove by a preponderance

that he would have not been convicted.

           3.   Item discovered by a citizen

     At trial, all that was revealed about the condom was that “someone”

turned it into the sheriff’s office. 52.RR.134–35. The condom, however,

“appeared to be old and cracked and worn out . . . hav[ing] been out in

the woods for some time,” 52.RR.142, and there was no information

regarding when the condom was given to authorities, 52.RR.143. Trial

counsel mentioned the condom in closing, saying it was found “[n]ot right

there, down the way, but in the general area.” 56.RR.110. That a condom,

                                   39
with no seeming connection to the crime, would not have Appellant’s

DNA on it does not prove by a preponderance of the evidence that he

would not have been convicted.

           4.   Items found in or near the truck

     Fennell testified that his truck was “just in disarray” because he

had “thrown [his] baseball stuff” in the truck the night before Stites’s

murder, a practice which he called “normal.” 45.RR.98. Fennell was a

little league baseball coach and had coached his team and transported a

little leaguer in his truck the evening before Stites’s murder. 45.RR.78–

79, 97. Thus, the jury would not be surprised to not find Appellant’s DNA

but someone else’s on any of the items found in or near Fennell’s truck.

     Moreover, the jury heard that several items found inside or near

the truck—a gas emergency book, various receipts, lighter, Big Red gum

pack, paper napkin, pen—and the truck itself were examined for

fingerprints, 47.RR.32–35, 39–42, but that Appellant’s fingerprints were

not discovered on the items, 47.RR.43, and that he did not match

fingerprints that were developed on the truck, 47.RR.28. The jury’s

decision would not be affected had they had also known that Appellant’s

DNA was not in the truck. And, the jury’s verdict would not be any



                                   40
different if Appellant’s DNA was not found on any of these items but still

found on and inside Stites’s physically- and sexually-abused body. Cf.

Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (“The presence

of another person’s DNA at the crime scene will not, without more,

constitute affirmative evidence of [the convicted person’s] innocence.”).

            5.     Items presently in the possession of the Bastrop
                   District Clerk

      As explained more fully below, see infra Argument V, many of the

items Appellant (maybe) wants to test have been handled by numerous

individuals—attorneys, court personnel, and jurors—without gloves at

Appellant’s capital murder trial and they were stored commingled and

without protective packaging in the Bastrop District Clerk’s Office.25

4.RR(DNA).178–183, 194, 199–200. Assuming for the sake of argument

that Appellant is right that touching these items ungloved would leave

the handler’s DNA behind, finding another person’s DNA on these items

would not demonstrate by a preponderance of the evidence that

Appellant would not have been convicted. See Swearingen, 424 S.W.3d



25    Assuming that Appellant only wants to test what is listed in his brief, this
would include: blue pants; panties; socks; shoes; bra; nametag; white t-shirt; belt;
earring; HEB-branded shirt; knife with metal cover; pieces of a green cup; and brown
planner.

                                        41
at 38–39 (“Primarily, this is because the victim’s having encountered

another person would not factually exclude the [convicted person] from

having killer her. There are many ways someone else’s DNA could have

ended up in the victim’s fingernails. Such results would not require an

inference that the [convicted person would [have] been acquitted.”).

      “In sum, granting DNA testing in this case would ‘merely muddy

the waters.’” Ex parte Gutierrez, 337 S.W.3d at 901. Because Appellant

does no more than that, the Court should affirm the trial court’s Article

64.03(a)(2)(A) decision.

IV.   The trial court’s finding of unreasonable delay is amply
      supported by the record.

      Appellant argues that the trial court’s overall finding that he filed

his Chapter 64 motion to unreasonably delay the execution of his

sentence or the administration of justice is in error. Appellant’s Br. 60–

86. He asserts that Chapter 64 does not impose a filing deadline or

“require a movant to explain why he did not raise a claim earlier.”

Appellant’s Br. 63. Further, Appellant claims that Chapter 64 motions

filed within a month of an execution setting are, presumptively, filed for

the purpose of unreasonable delay but those filed before such a setting

are not. Appellant’s Br. 63–64. Because he falls into the latter camp, his


                                    42
motion was not an unreasonable delay.        He also alleges that each

subsidiary fact finding is wrong. Appellant’s Br. 65–86. Contrary to

Appellant’s arguments, the trial court’s umbrella ruling and its

underlying factual findings are all abundantly supported by the record.

     A convicted person bears the burden of proving, by a preponderance

of the evidence, that he or she does not seek DNA testing to unreasonably

delay the execution of sentence or the administration of justice. Tex.

Code Crim. Proc. art. 64.03(a)(2)(B). This Court has not elucidated the

factors to be considered in determining unreasonable delay; however,

Judge Hervey’s concurrence in State v. Patrick provides some factors to

consider:

     Last minute requests for DNA testing without regard to the
     promptness of the request, the proximity in time between the
     request and execution of sentence, or a determination as to
     when the convicted person could have previously requested
     DNA testing would pose a hindrance to the Legislative
     mandate of Chapter 64 opposing unreasonable delay.

86 S.W.3d 592, 598 (Tex. Crim. App. 2002) (Hervey, J., concurring). The

State believes that additional factors here—the failure to provide time

estimates, prior litigation history, and present litigation tactics—should

also be considered holistically and a finding of unreasonable delay upheld

unless entirely unsupported by the record.


                                   43
     This Court has previously indicated that such a determination “is

an application-of-law-to-fact question and is therefore given de novo

review.” Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003).

Nevertheless, the State believes the appropriate standard of review in

this case is “almost total deference” because Appellant placed his

credibility at issue—he averred, in his (belatedly) sworn Chapter 64

motion, that: (1) the motion was brought in good faith; (2) it was brought

as soon as it appeared the federal habeas proceedings “were coming to a

close;” (3) and he could not have brought it any sooner because of

technological- and legislative-changes. 2.CR(DNA).100. At the hearing,

the State introduced evidence, which was admitted without objection,

contesting those (belatedly) sworn averments.          Thus, the State

challenged Appellant’s credibility and the more favorable almost-total-

deference standard should apply.        See Rivera, 89 S.W.3d at 59.

Regardless of the standard of review, “the trial court’s finding regarding

unreasonable delay is supported by the record” and should be affirmed.

Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005).




                                   44
     A.    The timing, breadth, and ambiguity of Appellant’s DNA
           testing request support the finding of unreasonable
           delay.

     Appellant has continuously and aggressively challenged his

judgment of conviction since the day he was sentenced to death in 1998.

See supra Statement of Facts I. Against this backdrop, the Legislature

enacted Chapter 64 in 2001, Act of April 5, 2001, 77th Leg., R.S., ch. 2, §

2, 2001 Tex. Sess. Law Serv. Ch. 2 (codified at Tex. Code Crim. Proc. arts.

64.01–64.05), and the last amendment was in 2011, Act of June 17, 2011,

82nd Leg., R.S., ch. 366, § 1–4, 2011 Tex. Sess. Law Serv. Ch. 366

(codified at Tex. Code Crim. Proc. arts. 64.01, 64.035, 64.04). Appellant

never sought DNA testing after it became statutorily available, that is,

until he lost his federal habeas appeal in the Fifth Circuit.

2.CR(DNA).106–13.      Even then, it was only an informal request.

2.CR(DNA).106–13. The State agreed to test some of the items Appellant

requested. 2.CR(DNA).144–48.

     In the interim, the State moved for an execution date.

1.CR(DNA).34–35.     On the day the trial court first set Appellant’s

execution date, Appellant filed his Chapter 64 motion and asked for a

significant number of items to be tested, including items beyond what



                                    45
was in his informal request. 2.CR(DNA).77, 115–17. Months later he

supplemented (or amended) that large request with more items.

3.CR(DNA).250–53. A month after that—at the Chapter 64 hearing—he

added (or amended) his request with even more items. 2.RR(DNA).30–

53, 106–24. See also supra Argument II. Given Appellant’s Chapter 64

litigation, it was not improper for the trial court to find unreasonable

delay.

           1.   Time between        Appellant’s    request    and   his
                execution date

     It is appropriate to consider the time between “proximity in time

between the request and execution of sentence.” Patrick, 86 S.W.3d at

598. Inherent in such a consideration is the nature of the request—a

request to test a single item using one DNA testing technique a month

away from an execution date will obviously be seen as more reasonable

than requesting a large and nebulous amount of items using an

unspecified variety of DNA testing techniques in that same time frame.

     Here, at the hearing setting an execution date, the State sought a

date six months out to accommodate the agreed-to DNA testing of three

types of swabs, four hairs, and a fabric cutting. Appellant’s Chapter 64

request dwarfed the agreed-to DNA testing, which was thought to need


                                  46
about six months for completion. Despite the fact that the State provided

a timeline for that testing, 1.RR(DNA).14, and despite the fact that

Appellant previously proposed to enter into a DNA-testing scheduling

order, 1.CR(DNA).48, Appellant now chastises the trial court for having

considered his failure to provide an estimated timeline for DNA testing.

Appellant’s Br. 65–66. While Appellant is correct that Chapter 64 does

not require that a convicted person propose an estimated completion date

for DNA testing, Appellant’s Br. 65, it also does not define unreasonable

delay, see Tex. Code Crim. Proc. art. 64.03(a)(2)(B), meaning that it is not

improper for a trial court to take into account the timing and breadth of

the requested testing. Here, it was absolutely proper for the trial court

to believe that Appellant’s massive and ever-changing request, seemingly

prompted by the loss in the Fifth Circuit and filed on the same day as the

hearing on the State’s motion to set an execution date, was intended to

unreasonably delay the execution of sentence or administration of justice.

           2.    Promptness of the request                and     previous
                 opportunities to request testing

     It is also proper to consider the “promptness of the request . . . [and]

when the convicted person could have previously requested DNA

testing.” Patrick, 86 S.W.3d at 598. Chapter 64 had been in existence


                                    47
for more than thirteen years and its last amendment was effective almost

three years before Appellant filed his Chapter 64 motion. Such a delay

should be considered presumptively unreasonable. See Thacker, 177

S.W.3d at 927 (“Appellant waited over four years to file his motion, and

that motion was filed less than a month before his scheduled execution.”

(emphasis added)).

     Moreover, the evidence before the trial court showed that one of

Appellant’s attorneys, on behalf of another death row inmate, filed a

Chapter 64 motion substantially similar and, in some places verbatim, to

Appellant’s    a     year-and-a-half      before    Appellant’s     filing.

7.RR(DNA).RX14. Notably, this filing contained an expert’s affidavit and

an affidavit from the convicted person whereas, in Appellant’s case, these

items did not come for months.          Compare 7.RR(DNA).RX14, with

3.CR(DNA).233–34, 317–18. And the same attorney, on behalf of the

same death row inmate, filed a second Chapter 64 motion two months

before Appellant’s. 9.RR(DNA).RX15. Thus, it was entirely appropriate

to find that Appellant had the legal expertise necessary to file his

Chapter 64 motion much sooner than he did.




                                   48
     Further, this Court held long ago that the pendency of federal

habeas proceedings did not prevent a convicted person from seeking

Chapter 64 relief on account of the “two-forums” rule. See Thacker, 177

S.W.3d at 927. As such, it was entirely appropriate for the trial court to

find that Appellant’s federal habeas proceeding was not an impediment

to his seeking testing under Chapter 64.

     To this, Appellant argues that the trial court did not take into

account the State’s “foot-dragging” and his prior request for DNA testing.

Appellant’s Br. 67–70. However, the evidence of the State’s supposed

dilatoriness was not before the trial court—Appellant relies on his

attorney’s affidavit filed in opposition to the State’s motion to accelerate

this appeal.   Appellant’s Br. 21–23.     Thus, it cannot be a basis for

undermining the trial court’s decision and it should not be considered on

appeal. See Whitehead, 130 S.W.3d at 872.

     Further, Appellant’s argument also ignores that requesting DNA

testing in an almost twenty-year-old crime would naturally have

attendant delay, especially when needing to locate and document

evidence from four law enforcement agencies, a medical examiner’s office,

a crime lab, and a clerk’s office in a case that had been closed for almost



                                    49
sixteen years.   Even assuming that Appellant’s argument can be

considered on appeal, the “foot-dragging” did not prevent Appellant from

filing a protective Chapter 64 motion which he could have withdrawn had

it been rendered moot by an agreement. Cf. Pace v. DiGuglielmo, 544

U.S. 408, 416 (2005) (noting that a state inmate may file a “‘protective’

petition” in federal court to ensure compliance with timeliness

standards).   Accordingly, Appellant’s latter-day blame shifting is no

excuse for his more-than-a-decade-delayed filing. And Appellant’s last-

minute attempt to shift blame for his dilatoriness to the State should be

recognized by this Court and taken into account. See Rosales v. State,

748 S.W.2d 451, 456 (Tex. Crim. App. 1987) (noting that, in the

indigence-on-appeal context, the hiring of an appellate lawyer can be

considered in deciding whether the appellant is indigent).

     Appellant also appears to suggest that the State’s requests for

extensions of time in another proceeding somehow undermine the trial

court’s decision. Appellant’s Br. 16–17. Neither the argument nor the

evidence was provided to the trial court and should not be considered on

appeal. See Whitehead, 130 S.W.3d at 872. But, even considering this

forfeited issue, there was only one 10-day extension in the Fifth Circuit



                                   50
and two 30-day extensions in the Supreme Court after Appellant

informally requested DNA testing, assuming that is the appropriate

request measure. An additional 70 days in two different proceedings

pales in comparison with Appellant’s thirteen- or almost-three-year delay

following the enactment of Chapter 64 or its latest amendment.

     As to his prior, non-Chapter 64 DNA testing motion, the trial court

faulted him for failing to file despite availability under Chapter 64,

3.CR(DNA).344, and, as Appellant admits, his non-Chapter 64 DNA

testing motion was filed before Chapter 64’s enactment, Appellant’s Br.

7. This demonstrates no error in the trial court’s findings. Moreover,

Appellant dubbed his Chapter 64 motion as his “first request for post-

conviction DNA testing.” 2.CR(DNA).100. He can hardly fault the trial

court for not mentioning a motion he seemingly forgot about.

     Appellant also argues that prior versions of Chapter 64 were “legal

impediments” to his filing for DNA testing until the 2011 amendments

defining “biological material.”   Appellant’s Br. 70–76.    If this were




                                   51
actually true, it is news to Henry Skinner26 and Larry Swearingen,27 who

filed Chapter 64 motions both before and after certain amendments to

Chapter 64. Moreover, this Court confirmed that the amendments to

term “biological material” did not result in the sea change Appellant

suggests. See Swearingen, 424 S.W.3d at 37 (“The recent amendments

have not fixed this problem in most cases. No part of the amendments

addresses a method for determining the existence of biological

material.”). Assuming arguendo the truth of Appellant’s impediment

argument, however, it still does not explain why Appellant waited almost

three years after the Legislature defined “biological material” to file his

Chapter 64 motion. Appellant clearly was dilatory in his request for DNA

testing and the trial court’s finding of unreasonable delay should be

upheld.




26     Skinner v. State, No. AP-76675, 2012 WL 2343616 (Tex. Crim. App. June 20,
2012); Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009); Skinner v. State, 122
S.W.3d 808 (Tex. Crim. App. 2003).
27     State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014); Swearingen v.
State, 303 S.W.3d 728 (Tex. Crim. App. 2010); Swearingen v. State, 189 S.W.3d 779
(Tex. Crim. App. 2006)

                                         52
     B.    Appellant’s overall litigation history left little doubt
           that his Chapter 64 motion was filed for purposes of
           unreasonable delay

     It is also not error for a trial court to consider the entirety of a

convicted person’s litigation history to determine his present intent.

Multiple courts, including this one, have found that Appellant has

engaged in fragmented and dilatory litigation. See 10.RR(DNA).RX16,

at 11 (“Moreover, [Appellant’s] motion is untimely. . . . [Appellant] fails

to provide this court with any explanation as to why he waited until

[more than two years after filing his final federal habeas petition] . . . to

request additional testing of evidence.”); id. at 12 (“The same concerns

this court has about [Appellant’s] untimely motion for additional testing

of evidence applies to his extraordinary delay in proffering Bayardo’s

affidavit.”); 10.RR(DNA).RX17, at 17 n.17 (“[W]e find that even had the

district court not considered Dr. Bayardo’s affidavit, it would have acted

within its discretion because the affidavit was untimely. [Appellant] has

provided no persuasive reason for waiting to well over a decade to revisit

Dr. Bayardo’s testimony.”); Reed V, 2009 WL 97260, at *1 (describing

Appellant’s as “[t]aking a piecemeal approach”).




                                     53
      Moreover, Appellant, multiple times and as early as almost eight

months before the trial court entered its findings, stated he was going to

file additional postconviction litigation, but never did—at least not before

he filed his notice of appeal—despite providing the trial court with a

proposed filing deadline.28 1.CR(DNA).47; 1.RR(DNA).10 (“We will be

filing within 30 days.”).

      Further, Appellant waited months to provide the trial court with an

expert’s affidavit or his own, despite a statutory requirement to submit

the latter. See Tex. Code Crim. Proc. art. 64.01(a–1). This delay occurred

despite evidence that Appellant’s counsel knew of the personal-affidavit

requirement a year-and-a-half earlier. Compare 7.RR(DNA).RX14, with

3.CR(DNA).317–18. In addition, Appellant’s winding and nebulous DNA

testing request, described in detail above, should be considered here, too.

See supra Section II.         The record clearly supports that Appellant’s

Chapter 64 motion is part and parcel with Appellant’s prior dilatory

litigation.



28      As Appellant notes, he filed his seventh state habeas application on February
13, 2015. Appellant’s Br. 80 n.32. This is about six months after Appellant promised
to file it. This would be another appropriate situation for the Court to take notice of
in deciding the correctness of the trial court’s decision. See Rosales, 748 S.W.2d at
456.

                                          54
     Appellant argues that the trial court should not have taken his

litigation history into account in determining unreasonable delay

because, essentially, he thinks it is irrelevant. Appellant’s Br. 76–86.

But, an individual’s prior actions can be used for a variety of purposes,

including proving intent, plan or habit. See, e.g., Tex. R. Evid. 404(b),

406. Thus, because Appellant shouldered the burden of proof to establish

no unreasonable delay of his execution or administration of justice, his

litigation history became relevant as it would in any case of establishing

diligence. The trial court’s decision finding unreasonable delay was well-

supported by the record and should be upheld on appeal.

V.   Appellant failed to prove chain of custody for items housed
     by the Bastrop District Clerk.

     A convicted person must prove that the items he or she seeks to test

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

items have] not been substituted, tampered with, replaced, or altered in

any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). In

short, a convicted person “is not entitled to DNA testing unless he first

shows that unaltered evidence available for testing.” Prible v. State, 245

S.W.3d 466, 467 (Tex. Crim. App. 2008) (emphasis added). Appellant




                                    55
failed in his proof, at least with respect to items housed by the Bastrop

District Clerk.

      A postconviction investigator testified at Appellant’s Chapter 64

hearing that all of the items in possession of the Bastrop District Clerk

are stored comingled and without protective covering.29 4.RR(DNA)178–

83.   As a certified peace officer with a background in collection of

evidence, 4.RR(DNA).183–84, the postconviction investigator testified

that he believed that the storage of these items allowed for

contamination, were materially altered, and were tampered with,

4.RR(DNA).185–86.

      A deputy clerk testified that several other exhibits—seemingly the

paper goods Appellant (maybe) no longer wants to test—were stored in

the same manner as the other exhibits—together and without

prophylactic measure. 4.RR(DNA).193–94.

      Finally, the lead trial prosecutor in Appellant’s case testified that,

once the items introduced at trial were handled without gloves by



29    The items in possession of the Bastrop District Clerk are found in Appellant’s
Exhibit 2. 5.RR(DNA).DX2. Appellant (maybe) requests testing of the following
items in that official’s possession: blue pants; panties; socks; shoes; bra; nametag;
white t-shirt; belt; earring; HEB-branded shirt; knife with metal cover; pieces of a
green cup; and brown planner.

                                         56
attorneys, court personnel, and jurors, in accord with the standards of

that time. 4.RR(DNA).198–201.

     Paolucci, on cross-examination, conceded that there is “a good

chance [that the evidence in possession of the Bastrop District Clerk is]

contaminated evidence.” 2.RR(DNA).72. And Lankford testified that the

comingled storage was “not ideal,” with the possibility that each item has

the DNA of more than a dozen people on it. 3.RR(DNA).149–52. She also

conceded that, hypothetically, if someone opened the sealed packaging of

evidence in a DNA laboratory and then touched the item ungloved, that

would prove “you’ve tampered with our evidence.” 3.RR(DNA).155.

     The evidence before the trial court, and Appellant’s witnesses’

concessions, readily establish that the items in the possession of the

Bastrop District Clerk’s Office have been “tampered with” or “altered in

any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii); see

Pate v. State, No. 10-09-00360-CR, 2011 WL 652920, at *1 (Tex. App.—

Waco Feb. 23, 2011, pet. ref’d) (“The items in question were trial exhibits,

and therefore, handled by numerous persons during the trial.”); Riggins

v. State, No. 11-03-00307-CR, 2004 WL 743742, at *1 (Tex. App.—

Eastland Apr. 8, 2004, no. pet.) (agreeing that evidence stored without



                                    57
temperature controls by a district clerk was insufficient to prove an

adequate chain of custody).

      In arguing otherwise, Appellant ignores “tampered with” or

“altered in any material respect.”      Appellant’s Br. 86–89.   But his

witnesses conceded this point. While it can be said with certainty where

these items are housed, that is not all that is required as the statutory

definition reflects. Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). And,

while these items might still be “in a condition making DNA testing

possible,” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), which was the

primary thrust of Appellant’s witnesses’ testimony, that is a different

requirement than chain of custody, Tex. Code Crim. Proc. art.

64.03(a)(1)(A)(ii). Appellant did not prove that requirement here and the

trial court’s decision should be affirmed on such basis with respect to

those items in the possession of the Bastrop District Clerk.

VI.   Appellant did not prove biological material on the non-per
      se items he sought to test.

      Under Chapter 64, DNA testing is only permitted for evidence

“containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1).

The meaning of this statute is clear—this Court has “explicitly held that

[a convicted person] must prove biological material exists and not that it


                                   58
is merely probable.” Swearingen, 424 S.W.3d at 38. Appellant failed in

this endeavor.

      Appellant tried to prove biological material existed on a variety of

items—because of Appellant’s lack of clarity, however, the State is still

unsure exactly what he seeks to test—but ultimately failed to do so.30

Paolucci conceded that he had not physically examined the evidence and

had no personal knowledge as to how Stites was murdered.

2.RR(DNA).64–65. And he conceded that there was no way to know if

there was biological material on any of these items unless DNA testing

was performed on them. 2.RR.(DNA).67. Further, Paolucci admitted

that “you can’t say for sure where—where these items were touched.”

2.RR(DNA).75.

      Lankford, too, conceded that “the only way to know for sure [if there

is biological material] is to test the[ item] and obtain a DNA profile.”

2.RR(DNA).143. Indeed, she stated that “I couldn’t testify to there being

a biological stain, for instance, on an item of clothing without testing it.”


30     Assuming that Appellant currently only seeks to test those items addressed on
appeal, the non-per se biological material items are: blue pants (in the areas he seeks
to test); panties (in the areas he seeks to test); socks; shoes; bra; nametag; hand bags;
white t-shirt; belt; beer cans; condom; pen; earring; HEB-branded shirt; knife with
metal cover; pieces of green cup; brown planner; lighter; box cutter; and Big Red gum
pack.

                                           59
2.RR(DNA).148. And, like Paolucci, Lankford could not say where any

particular item had been handled such that skins cells might have been

deposited. 2.RR(DNA)148–49, 169.

      With respect to the non-per se physical items in this case, Appellant

did not prove there was biological material in any particular location.

Even if the Court assumes that “touch” DNA will be deposited from every

contact with human skin, all of Appellant’s witnesses conceded that they

could not prove where any particular item had been so manipulated. As

such, this case is no different than Swearingen, where a convicted

person’s expert said it was likely that certain items had skin cells on

them. See Swearingen, 424 S.W.3d at 37–38. But that is not enough.

      Further, there was trial testimony that on many of the items

Appellant requests to be tested there were “no stains of evidentiary value

on them.” 49.RR.89–93.31 And nothing was collected from underneath

Stites’s fingernails because they were too short, so Appellant cannot

prove biological material on the hand bags either. 44.RR.163. The trial




31     This includes the: white T-shirt; white flakes; bra; paper napkin; white paper
sheet; knee brace; and HEB-branded shirt. 49.RR.89–90.

                                         60
court’s decision should be affirmed, at least with respect to the non-per

se biological material items, on this basis too.

VII. The State re-urges its motion to accelerate this appeal.

     On January 27, 2015, the State moved this Court to accelerate

Appellant’s appeal. State’s Motion for Accelerated Appeal, Reed v. State,

No. AP-77,054 (Tex. Crim. App. Jan. 27, 2015). As apparent from the

arguments above, Appellant has engaged in piecemeal and dilatory

litigation tactics and it is clear that Appellant’s Chapter 64 motion and

the attendant appeal have been filed to unreasonably delay the execution

of his sentence and the administration of justice. As such, the State

respectfully re-urges the motion to accelerate for purposes of this Court’s

decisional process. Appellant should not be allowed to delay his presently

scheduled execution date.




                                     61
                       PRAYER FOR RELIEF

     The State respectfully requests that the Court affirm the trial

court’s decision denying Appellant’s request for DNA testing pursuant to

Chapter 64.

                               Respectfully submitted,

                               BRYAN GOERTZ
                               Criminal District Attorney
                               Bastrop County, Texas

                               /s/ Matthew Ottoway
                               MATTHEW OTTOWAY
                               Assistant Criminal District Attorney/
                               Assistant Attorney General
                               Texas Bar No. 24047707

                               Post Office Box 12548, Capitol Station
                               Austin, Texas 78711
                               Tel.: (512) 936-1400
                               Fax: (512) 320-8132
                               Email: matthew.ottoway@texasattorney
                                             general.gov

                               Attorneys for the State




                                   62
         WORD-LIMIT CERTIFICATE OF COMPLIANCE

     This brief complies with Rule 9.4(i)(2)(A) of the Texas Rules of
Appellate Procedure. It contains 12,125 words, Microsoft Word 2013,
Century Schoolbook, 14 points.

                                /s/ Matthew Ottoway
                                MATTHEW OTTOWAY
                                Assistant Criminal District Attorney/
                                Assistant Attorney General


                   CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of the foregoing
pleading was served by placing same in the United States mail, postage
prepaid, on this the 23rd day of February, 2015, addressed and
electronically sent to:

Bryce Benjet                      Mark S. Chehi
40 Worth Street, Suite 701        Robert A. Weber
New York, New York, 10013         Jason M. Liberi
bbenjet@innocenceproject.org      Nicole A. DiSalvo
                                  Andrew G. Mirsis
Andrew F. MacRae                  SKADDEN, ARPS, SLATE, MEAGHER &
LEVATINO PACE LLP                       FLOM LLP
1101 S. Capital of Texas Hwy.     One Rodney Square, P.O. Box 636
Building K, Suite 125             Wilmington, Delaware 19899
Austin, Texas 78746               mchehi@skadden.com
amacrae@levatinopace.com          robert.weber@skadden.com

                                /s/ Matthew Ottoway
                                MATTHEW OTTOWAY
                                Assistant Criminal District Attorney/
                                Assistant Attorney General




                                   63
