                                                                              ACCEPTED
                                                                         07-16-00448-CR
                                                            SEVENTH COURT OF APPEALS
                                                                      AMARILLO, TEXAS
                                                                       6/19/2017 4:10 PM
                                                                        Vivian Long, Clerk


                        NO. 07-16-00448-CR
                                                   STATE WAIVES
                                                 ORAL ARGUMENT
                                                      FILED IN
                                                  7th COURT OF APPEALS
                                                    AMARILLO, TEXAS
                             IN THE               6/19/2017 4:10:25 PM
                                                       VIVIAN LONG
                       COURT OF APPEALS                   CLERK


                            FOR THE

             SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                   JOSEPH HERCULES NORTON,
                                        APPELLANT,

                               VS.

                      THE STATE OF TEXAS,
                                          APPELLEE
******************************************************************
          ON APPEAL FROM THE 69TH DISTRICT COURT
                          CAUSE NO. 766
                    SHERMAN COUNTY, TEXAS
                HONORABLE RON ENNS, PRESIDING
******************************************************************
                          STATE’S BRIEF
******************************************************************
                              KENT BIRDSONG
                              OLDHAM COUNTY ATTORNEY
                              SPECIAL PROSECUTOR
                              P.O. Box 698
                              VEGA, TEXAS 79062
                              (806) 267-2233
                              SBN 02333630
                              Kent.Birdsong@oldham-county.org

                              ATTORNEY FOR THE STATE


                                i
                          TABLE OF CONTENTS

                                                                            PAGE


TABLE OF CONTENTS…………………………………………………………1

LIST OF AUTHORITIES…………………………………………………….... 2

THE CASE IN BRIEF…………………………………………………………...…3

STATEMENT OF THE CASE…………………………………………………….4

STATE’S RESPONSIVE POINT           …………………………………………… 5

    (ADDRESSED TO APPELLANT’S SOLE “ISSUE PRESENTED”)


         The trial court did not err in limiting DNA testing to the jeans appellant
    was wearing upon his arrest and the victim’s blood.




FACT STATEMENT ……………………………………………                                               6

SUMMARY OF THE STATE’S ARGUMENT……………………                                        7

RESPONSIVE POINT RESTATED………………………………                                          8

CONCLUSION AND PRAYER……………………………………………                                         11

CERTIFICATE OF SERVICE……………………………………………                                         12

CERTIFICATE OF COMPLIANCE…………………………………………… 12




                                       1
                                LIST OF AUTHORITIES


                                                                                           Page

Cases

Birdwell v. State, 276 S.W.3d 642, 644 (Tex.App. - - Waco 2008, pet. ref’d) ........ 9
Jacobs v. State, 294 S.W.3d 192, 197 (Tex.App. - - Texarkana 2009, pet. ref’d) 10
Prible v. State, 245 S.W.3d 466, 469-70 (Tex.Crim.App. 2008), cert. denied,
555U.S. 833, 129 S.Ct. 54, 172 L.Ed.2d 55 (1988) ............................................. 10
Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002) ..................................... 9


Statutes

Tex. Code Crim. Proc. Ann. Art. 64.03(West Supp. 2016) ................................9, 10




                                               2
                               NO. 07-16-00448-CR

                                      IN THE

                              COURT OF APPEALS

                                     FOR THE

                  SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                   JOSEPH HERCULES NORTON,
                             Appellant,

                               VS.
                      THE STATE OF TEXAS,
                             Appellee.
******************************************************************
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW the State of Texas, appellee in the above entitled and

numbered appeal, by and through its Oldham County Attorney and Special

Prosecutor Kent Birdsong, and submits its brief in response to the brief of appellant

Joseph Hercules Norton. Appellant complains of the trial court’s order denying

DNA testing of various items appellant wants tested.




                                         3
                          STATEMENT OF THE CASE

  Appellant is serving a life prison sentence under a 1994 capital murder conviction.

CR: 7. He filed motions in the trial court for DNA testing of certain designated items,

pursuant to Chapter 64 of the Texas Code of Criminal Procedure. CR: 37, 61. This

appeal is from the trial court’s order denying appellant’s request for DNA testing on

items other than the two on which the court did order DNA testing. Supp. CR: 6.

Appellant timely, on December 8, 2016 filed a notice of appeal. CR: 78.




                                          4
            STATE’S RESPONSIVE POINT
(ADDRESSED TO APPELLANT’S SOLE “ISSUE PRESENTED”)


     The trial court did not err in limiting DNA testing to the jeans appellant
was wearing upon his arrest and the victim’s blood.




                                   5
                               FACT STATEMENT

      On April 16, 1993, Texas Department of Public Safety Trooper Steve Booth

was fatally shot. CR: 2. After a July, 1994 trial, appellant was convicted of capital

murder and sentenced to life imprisonment. CR: 7. Appellant filed a motion, and

later an amended motion, for DNA testing of various items, including the victim’s

undershorts and body armor and syringes found across the street from the shooting.

CR: 37, 61, The trial court on July 17, 2014 ordered the State to deliver evidence in

its possession to the court. CR: 73. At a December 16, 2015 hearing, the court

ordered DNA testing on the appellant’s jeans recovered from him upon arrest and

three vials of the victim’s known blood. The court reserved ruling on testing the

additional items appellant asked be tested, pending the results of the testing the court

did order. CR: 74; RR2: 11; RR3: 5.

      After the results of the DNA testing had been returned to the court, a hearing

was had November 1, 2016. The court announced that the test results were

unfavorable to appellant; the court denied any additional testing. RR3: 7. In its

written order, the court noted that, had the results been available during appellant’s

trial, it is not reasonably probable appellant would not have been convicted. Supp.

CR: 6.




                                           6
                   SUMMARY OF THE STATE’S ARGUMENT

      The DNA testing the court ordered was not favorable to appellant: the blood

on appellant’s jeans was that of the victim. Even if the items at the murder scene

appellant wanted tested were shown to bear the DNA of another person, that would

signify only that a third person was at the scene; such would not exonerate appellant.

The trial court was authorized to deny appellant’s request for additional testing;

appellant has shown no basis for relief.




                                           7
                        RESPONSIVE POINT
              (ADDRESSED TO APPELLANT’S SOLE “ISSUE
                     PRESENTED”)(RESTATED)

      The trial court did not err in limiting DNA testing to the jeans appellant was
wearing upon his arrest and the victim’s blood.




                            I.       Appellant’s Complaint
   His defensive theory was that he was not at the scene when the murder occurred,

appellant points out. DNA testing of items from the murder scene he wanted tested,

appellant says, may have shown a third person was there. Had evidence a third party

was present been advanced, the jury may have come to a different verdict, appellant

proposes. Appellant’s Brief, p. 9.


             II.   Facts Bearing Specifically on Appellant’s Complaint

   At the December 16, 2015 hearing on appellant’s motion for DNA testing,

counsel acknowledged that DNA testing at a private laboratory is “very, very

expensive;” the court had authorized any testing to be done at a private laboratory,

rather than the DPS laboratory, since the victim was a DPS trooper. RR2: 4. Though

wanting to champion appellant’s desires, counsel acknowledged the logic in

narrowing the items to be tested to those most relevant. RR2: 6. In that connection,

counsel recognized that DNA testing on a number of the items appellant wanted

tested would not have been helpful. RR2: 6. As indicated, the court ordered DNA

                                          8
testing only as to appellant’s jeans and the victim’s blood; but, the court reserved a

ruling respecting testing additional items, should the jeans and blood testing be

inconclusive. RR2: 8-9.


                           III.     Argument and Authority

                                  A. Standard of Review

      In reviewing a trial court’s ruling on DNA testing, the appellate court should

   apply a bifurcated standard. The reviewing court should afford almost total

   deference to the trial court’s determination of issues of historical fact and

   application-of-law-to fact issues that turn on credibility and demeanor, and

   review de novo other application-of-law-to fact issues. Birdwell v. State, 276

   S.W.3d 642, 644 (Tex.App. - - Waco 2008, pet. ref’d), citing Rivera v. State, 89

   S.W.3d 55, 59 (Tex.Crim.App. 2002).


               B. The Trial Court Did Not Err in Limiting DNA Testing


      Under our criminal procedural code


             ..(a) a convicting court may order forensic DNA testing only if:


                   ...


                   © identity was or is an issue in the case; and



                                          9
                    (2) the convicted person establishes by a preponderance of the

                    evidence that


                    (A) the person would not have been convicted if exculpatory

                    1988)results had been obtained through DNA testing.


Tex. Code Crim. Proc. Ann. Art. 64.03 ©(2)(A)(West Supp. 2016).


      When substantial evidence links a defendant to the crime, evidence of a third

party’s DNA in addition to the defendant’s is not exculpatory. In that circumstance,

a defendant could not show by a preponderance of the evidence that he would not

have been convicted had such additional testing occurred. Prible v. State, 245

S.W.3d 466, 469-70 (Tex.Crim.App. 2008), cert. denied, 555 U.S. 833, 129 S.Ct.

54, 172 L.Ed.2d 55 (1988); Jacobs v. State, 294 S.W.3d 192, 197 (Tex.App. - -

Texarkana 2009, pet. ref’d).


      Here, from the DNA testing the court ordered, the victim’s blood was proven

to be on appellant’s jeans; eyewitness testimony and other evidence placed appellant

at the murder scene. RR2: 9; RR3: 6. No showing has been made appellant probably

would not have been convicted had DNA testing of the items he wanted tested

occurred before his trial. No error can be seen in the trial court’s order.




                                          10
                       CONCLUSION AND PRAYER

      WHEREFORE, the State prays that the trial court’s order denying additional

DNA testing be affirmed.


                                            Respectfully submitted,

                                            KENT BIRDSONG
                                            Oldham County Attorney
                                            Special Prosecutor



                                            __/s/ Kent Birdsong___

                                            P.O. Box 698
                                            Vega, Texas 79062
                                            (806) 267-2233
                                            SBN 02333630
                                            (806) 379-2325
                                            Kent.Birdsong@oldham-county.org

                                            Attorney for the State




                                       11
                            CERTIFICATE OF SERVICE

      I hereby certify that on this 19th day of June, 2017, a true copy of the

foregoing State’s brief was served on appellant ’s attorney, Timothy D. Salley, at

625 E. 7th Street, Suite C, Dumas, Texas 79029 by depositing the same in the United

States Mail, postage prepaid, and by email at tsalley53@gmail.com.




                                                    __/s/ Kent Birdsong______
                                                    Oldham County Attorney
                                                    Special Prosecutor


                      CERTIFICATE OF COMPLIANCE

      In accordance with Tex.R.App.P. 9.4 (i)(3), I hereby certify that the foregoing

brief contains, as reflected in the computer program word count, 1,473 words. That

count includes words in portions of the brief which, under the Rule, are excluded

from the prescribed word limit. The brief is printed in 14-point typeface.



                                                    __/s/ Kent Birdsong___
                                                    Oldham County Attorney
                                                    Special Prosecutor




                                         12
