                                                                                    ACCEPTED
                                                                               03-14-00681-CR
                                                                                      4389121
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           3/5/2015 3:53:26 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                          NO. 03-14-00681-CR

                        IN THE COURT OF APPEALS                FILED IN
                                                        3rd COURT OF APPEALS
                             THIRD DISTRICT                 AUSTIN, TEXAS
                             AUSTIN, TEXAS              3/5/2015 3:53:26 PM
                                                          JEFFREY D. KYLE
                                                                Clerk
                       IN RE ROBERT LEE BROWN



                 APPEAL FROM THE 167TH DISTRICT COURT
                         TRAVIS COUNTY, TEXAS
                   CAUSE NUMBER D-1-DC-00-002368


                           STATE’S BRIEF



ROSEMARY LEHMBERG
DISTRICT ATTORNEY
TRAVIS COUNTY, TEXAS

M. SCOTT TALIAFERRO
TEXAS BAR NO. 00785584
ASSISTANT DISTRICT ATTORNEY
DIRECTOR, APPELLATE DIVISION
DISTRICT ATTORNEY’S OFFICE
P.O. BOX 1748
AUSTIN, TEXAS 78767
PHONE: 512.854.3626 FAX: 512.854.4810
EMAIL: scott.taliaferro@traviscountytx.gov
       AND AppellateTCDA@traviscountytx.gov

        THE STATE DOES NOT REQUEST ORAL ARGUMENT
                                            TABLE OF CONTENTS




INDEX OF AUTHORITIES............................................................................................ii

STATEMENT OF THE CASE ....................................................................................... 2

STATEMENT REGARDING ORAL ARGUMENT ................................................... 4

STATEMENT OF FACTS .............................................................................................. 4

SUMMARY OF THE ARGUMENTS ........................................................................... 7

THE STATE'S MOTION TO DISMISS ........................................................................ 7

THE STATE’S REPLY TO THE APPELLANT’S BRIEF ........................................ 9
   THE APPELLANT’S BRIEF FAILS TO FAILS TO ARTICULATE ANY CLAIM OVER WHICH
   THIS COURT HAS JURISDICTION. ..............................................................................9

PRAYER .......................................................................................................................... 14

CERTIFICATE OF COMPLIANCE ............................................................................ 15

CERTIFICATE OF SERVICE ...................................................................................... 15




                                                                 i
                                       INDEX OF AUTHORITIES

Cases
Brown v. State, No. 03-00-00534-CR, 64 S.W.3d 94 (Tex. App.—Austin 2001) 4, 7
Dukes v. State, No. 04-11-00106-CR, 2011 Tex. App. LEXIS 1886 (Tex. App.—
  San Antonio March 16, 2011) (not designated for publication) ............................8
Ex parte Alexander, 685 S.W.2d 57 (Tex. Crim. App. 1985) .................................13
Ex parte Williams, 239 S.W.3d 859 (Tex. App.—Austin 2007).............................13
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ....................................11
Medearis v. State, No. 03-12-00698-CR , 2013 Tex. App. LEXIS 9269 (Tex.
  App.—Austin July 26, 2013) (not designated for publication)..............................8
Padieu v. Court of Appeals of Texas, Fifth District, 392 S.W.3d 115 (Tex. Crim.
  App. 2013) ............................................................................................................13
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................11
Statutes
Tex. Code Crim. Proc. art. 64.03 .............................................................................12
Tex. Code Crim. Proc. art. 11.07 § 4 .......................................................................13
Tex. Code Crim. Proc. art. 11.07 § 5 .......................................................................13
Tex. Code Crim. Proc. art. 64.01 ..................................................................... passim
Tex. Code Crim. Proc. art. 64.05 .............................................................................11
Rules
Tex. R. App. P. 25.2...............................................................................................7, 8
Tex. R. App. P. 38.1.................................................................................................11




                                                            ii
                                NO. 03-14-00681-CR

                              IN THE COURT OF APPEALS
                                   THIRD DISTRICT
                                   AUSTIN, TEXAS


                             IN RE ROBERT LEE BROWN



                     APPEAL FROM THE 167TH DISTRICT COURT
                             TRAVIS COUNTY, TEXAS
                       CAUSE NUMBER D-1-DC-00-002368


                                  STATE’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      The State of Texas, by and through the District Attorney for Travis County,

respectfully submits this brief in response to that of the appellant.




                                           1
                             STATEMENT OF THE CASE

       On September 30, 2013, the appellant, acting pro se, filed a motion seeking

post-conviction DNA testing under article 64.01 of the Texas Code of Criminal

Procedure. 1 CR 3.1 In a document filed in support of that motion, the appellant

also requested appointment of counsel. 1 CR 6.

       The State opposed the motion for DNA testing and also opposed the request

for appointment of counsel. 1 CR 10. On October 3, 2014, the trial court denied

the appellant’s motion for DNA testing and also denied the request for

appointment of counsel. 1 CR 30. The trial court made the following findings and

conclusions:


       Findings of Fact
       1. A jury found the Applicant guilty of aggravated robbery, and the
       trial court judge sentenced him to thirty-two years of confinement.
       2. Evidence at trial supported the jury's determination of guilt, and
       two witnesses testified that the Applicant was the perpetrator.
       3. Even if DNA testing uncovered the profile of an additional person
       or failed to uncover the Applicant's DNA, such evidence would not
       constitute affirmative evidence of the Applicant's innocence.




1
 NOTE CONCERNING REFERENCES TO THE APPELLATE RECORD:
A citation in the form of “x CR y” refers to page y of volume x of the Clerk’s Record. A citation
in the form of “x RR y” refers to page y of volume x of the Reporter’s Record.



                                                2
       Conclusion of Law
       1. The Applicant failed to prove by a preponderance of the evidence
       that he would not have been convicted if exculpatory results had been
       obtained through DNA testing.
       2. With regard to the Applicant's motion for the appointment of
       counsel. The requirements of article 64.01(c) of the Texas Code of
       Criminal Procedure have not been satisfied. See Tex. Code. Crim.
       Proc. art. 64.01(c). As a consequence this Court is not required to
       appoint counsel. See id.

1 CR 30-31.2

       On October 20, 2014, the appellant filed a notice of appeal in relation to the

trial court’s order denying the appellant’s motion for post-conviction DNA

testing. In his notice of appeal, the appellant requested that counsel be appointed

to assist him in the appeal. 1 CR 35. On October 30, 2014, the trial court denied

that request for appointment of counsel. 1 CR 41. On November 20, 2014, the

appellant filed a second notice of appeal, expressing a desire to appeal from an

order denying his motion to conduct DNA testing.3 2 CR 3.




2
  A second order denying that motion was filed by the trial court later on that same date. Unlike
the first order, the second order does not deny the appellant’s request for appointment of counsel.
See 1 CR 24-25.
3
 The appellant’s second notice of appeal expresses a desire to appeal “from an ‘Order Denying
Motion to conduct DNA Testing’, Entered in this Action on the 4th day of November 2014.” 2
CR 3. The record does not appear to contain an order matching that particular description. See 1
CR 24, 30 (orders pertaining to DNA testing, both of which were issued on October 3, 2014).

                                                3
                 STATEMENT REGARDING ORAL ARGUMENT

The State respectfully asserts that the Court’s decisional process would not be

significantly aided by oral arguments. Accordingly, the State does not request oral

argument.


                                 STATEMENT OF FACTS

       The appellate record in this case does not contain a reporter’s record.

However, the facts underlying the appellant’s conviction for aggravated robbery

were summarized by this Court in its opinion relating to the appellant’s direct

appeal.4 That opinion contains the following factual and procedural summary:

       On September 30, 1999, Brown, his girlfriend, Sonya Holder, and two
       other men planned to rob Pete Arevalo, a sixty-year-old man who
       owned and operated Arevalo Truck and Automotive. They wanted to
       steal money and crack cocaine from Arevalo because Brown's cousin
       was incarcerated and needed money to get out of jail. Holder made
       her living as a prostitute and had been meeting with Arevalo every
       week for the past four years to exchange sexual favors for money and
       crack cocaine. Holder testified that she considered Arevalo a friend
       and that he had never hurt her.

       Brown and the two other men decided to rob Arevalo because Holder
       said she knew where he kept his money and drugs. Holder agreed to
       help them get into Arevalo's apartment. On the night of September 30,


4
 On direct appeal, the sole issue raised by the appellant was that the trial court erred in denying
his motion to suppress the in-court identification by the victim. Brown v. State, No. 03-00-
00534-CR, 64 S.W.3d 94, 97 (Tex. App.—Austin 2001). The trial court’s judgment was
affirmed by this Court. Id. at 102.

                                                 4
Holder knocked on Arevalo's door. Arevalo got out of bed and only
saw Holder as he looked through the door's peephole. Holder told him
that she needed to use the restroom, and he let her into the apartment.

Holder entered the apartment, and the three men followed her. One
man said to Arevalo, "We want to sell you a gun." A second man
displayed a chrome pistol. Arevalo told the men that he was not
interested. Arevalo testified that the first man suddenly punched him
and then threw his arms around him. While the first man held
Arevalo, the second man pistol-whipped him several times. The
second man then pointed the gun at Arevalo's face and asked where he
kept his money. Arevalo testified that he swung his body around in
order to bring the first man between himself and the second attacker.
The two assailants responded by punching and pistol-whipping
Arevalo several times. Arevalo finally submitted and told the two men
where his money was located.

Arevalo testified that he was suddenly able to free himself from the
first man's grasp and ran to his bedroom where he kept a 12-gauge
pump shotgun. The bedroom was well lit, and Arevalo said that he
could see his assailants coming for him. Another struggle ensued
between Arevalo and the two men. Arevalo attempted to fire the
shotgun twice, but it misfired each time. The second man assaulted
Arevalo with the pistol several more times and took the shotgun from
him. The second man then gave the handgun to the first man, who
also pistol-whipped Arevalo. The third man yelled that they needed to
leave, at which point all three men fled. Before leaving the bedroom,
however, the second man pointed the shotgun at Arevalo's stomach.
Arevalo testified that the second man attempted to fire the shotgun,
but it misfired again. During the robbery, Holder neither aided
Arevalo nor participated in the assault.

After the attackers left his apartment, Arevalo dialed 911. The
emergency medical services took Arevalo to Brackenridge Hospital
for treatment. His injuries included eight lacerations on his head, one
deep laceration near his left eye, numerous abrasions on his torso,
extensive bruising on his arms, chest, and under his armpits, three
chipped teeth, and one tooth severed at the gum line. Arevalo
                                   5
described one assailant as a dark-skinned African-American male and
the other as a light-skinned African-American male about eighteen to
twenty years old. He told the police that the lighter skinned man was
the one who initially pistol-whipped him, took the shotgun from him,
and attempted to shoot him. Arevalo later identified this man as
Brown. The darker skinned man, who was never identified, also
pistol-whipped Arevalo during the struggle.

Shortly after Arevalo made his statement, the police arrested Holder
for her involvement in the robbery. She identified the three men with
her that night as Robert, Quincy, and Sean. Holder knew Robert
because they had been seeing each other for a few months and were
having sexual relations and smoking crack cocaine together. Although
Holder did not know Robert's last name, she thought he had a brother
named Kevin Caldwell. With that information, the police discovered
Robert Brown, the half-brother of Kevin Caldwell. Holder positively
identified Brown when the police showed her a picture of him.

The police made a photographic lineup containing Brown's photo,
which they showed to Arevalo. After Arevalo identified Brown,
whom he had previously described as a light-skinned black male, the
police issued an arrest warrant for him.

Brown was charged by indictment on April 18, 2000, with the felony
offense of aggravated robbery with a deadly weapon, enhanced with
five prior felony convictions in a single enhancement paragraph. On
May 1, 2000, Brown was arraigned and entered a plea of not guilty.
On May 5, 2000, the jury found Brown guilty of the offense of
aggravated robbery. Brown elected to have the trial court assess his
punishment, and it imposed a prison sentence of thirty-two years.

Brown is a dark-skinned African-American male. He complains that
because his picture in the photographic lineup was overexposed, his
skin appeared unusually light in complexion. Brown believes that this
identification procedure was suggestive and resulted in mistaken
identification. Furthermore, he contends that he was chosen by
Arevalo because he had the lightest complexion among the other
pictures in the lineup. He asserts one point of error: the trial court
                                  6
      erred in denying the motion to suppress the in-court identification by
      the victim.

Brown v. State, No. 03-00-00534-CR, 64 S.W.3d 94, 97-98 (Tex. App.—Austin

2001).


                       SUMMARY OF THE ARGUMENTS

      It appears from the content of the appellant’s brief that he seeks to assert a

claim that is somehow related to post-conviction DNA testing. The appellant’s

claim, however, should be rejected because it is inadequately briefed. In addition,

this appeal must be dismissed because the record does not contain a certification by

the trial court of the appellant’s right to appeal.


                      THE STATE'S MOTION TO DISMISS

      The State respectfully requests that the instant appeal be dismissed because

the trial court has not certified that the appellant has the right to appeal. Under

Rule 25.2(d) of the Texas Rules of Appellate Procedure, an appeal must be

dismissed if the appellate record does not reflect certification, by the trial court,

that the appellant has the right to appeal. That rule provides as follows:

      (d) Certification of Defendant's Right of Appeal. --If the defendant is
      the appellant, the record must include the trial court's certification of
      the defendant's right of appeal under Rule 25.2(a)(2). The certification
      shall include a notice that the defendant has been informed of his
      rights concerning an appeal, as well as any right to file a pro se

                                            7
      petition for discretionary review. This notification shall be signed by
      the defendant, with a copy given to him. The certification should be
      part of the record when notice is filed, but may be added by timely
      amendment or supplementation under this rule or Rule 34.5(c)(1) or
      Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2).
      The appeal must be dismissed if a certification that shows the
      defendant has the right of appeal has not been made part of the record
      under these rules.

Tex. R. App. P. 25.2(d) (emphasis added).

      The rule applies to an appeal from an order denying a motion for post-

conviction DNA testing. See Medearis v. State, No. 03-12-00698-CR , 2013 Tex.

App. LEXIS 9269 (Tex. App.—Austin July 26, 2013) (not designated for

publication); Dukes v. State, No. 04-11-00106-CR, 2011 Tex. App. LEXIS 1886

(Tex. App.—San Antonio March 16, 2011) (not designated for publication).

      In the instant case, the appellate record does not contain any such

certification. Consequently, this appeal “must be dismissed.” Tex. R. App. P.

25.2(d).




                                         8
              THE STATE’S REPLY TO THE APPELLANT’S BRIEF

      THE APPELLANT’S BRIEF FAILS TO FAILS TO ARTICULATE ANY CLAIM
      OVER WHICH THIS COURT HAS JURISDICTION.

                               Argument and Authorities

      The claim that the appellant attempts to assert in his brief should be rejected

for the reasons that follow:

   1. Nature of the appellant’s claim

      The nature of the appellant’s claim is unclear but appears to relate somehow

to Chapter 64 of the Texas Code of Criminal Procedure and the subject matter of

that chapter, post-conviction DNA testing. The appellant’s brief is entitled,

“Applicant's Memorandum In Support For DNA Testing Under Article 64.01 (a-1)

and (b) Tex. Code Crim. Proc.” App. Br. 1. In addition, the appellant claims that

this Court has “complete jurisdiction in accordance with Article 64.01(a-1) and

(b).” App. Br. 1.

      The appellant’s statement of facts includes, inter alia, the following

assertions:

      This is the third attempt to exhaust his remedies based on actual
      innocence. This memorandum in Law of support has the necessary
      argument and authorities that need to be litigated and the applicant is
      also hope that actual innocence was never argued in his previous writ
      because he did not have the proper evidence that the records reveals
      and therefore would like this opportunity to exhaust these arguement
      before they are presented to the Federal Court.
                                          9
          ***
          Even though the applicant realizes that this application and brief in
          support can be construed as a successive application but the motion
          for leave5 is also filed to ask the permission of this Honorable Court in
          order to prove actual innocence and deceptive police tactics and
          prejudice on behalf of the prosecution in charge of the case and the
          misconduct of the tribunal for then allowing such miscarriage of
          justice to take place. It is the duty of the Trial Court to seek the truth
          and to right any wrongs that have taker, place in the judicial system
          and the applicant believes that this application and brief in support
          will bring the needed attention to warrant an evidentiary hearing in
          order for justice to be done.

App. Br. 1-2 (emphasis and footnote added).

          At the conclusion of his brief, the appellant makes the following prayer for

relief:

          Wherefore, Premises Considered, Applicant humbly prays that this
          Honorable Court will grant the Motion For Successive Petition6 and
          allow him the one and only opportunity to prove that he has the
          Evidence in this application and in the Memorandum to show that he
          has standing to be granted relief and that a Evidentiary Hearing is the
          only way that he can proceed to show his innocence.



5
  Among the documents attached to the appellant’s brief is a document entitled, “APPLICANT'S
MOTION FOR LEAVE OF COURT TO FILE SUCCESSIVE APPLICATION FOR AN
APPLICATION FOR WRIT OF HABEAS CORPUS IN ACCORDANCE WITH ARTICLE
11.07 §4(A)(1(2) OF THE TEXAS CODE OF CRIMINAL PROCEDURE.” That document,
which purports to have been signed by the appellant on May 28, 2009, is addressed to the judges
of “the Court of Criminal Appeals of Austin, Texas.” It contains a certificate of service that
indicates that the document was being mailed to the Travis County district clerk. Another
document attached to the appellant’s brief is a habeas application that purports to have been
signed by the appellant on that same date.
6
    Please see footnote 5.

                                              10
App. Br. 3 (emphasis and footnote added).

   2. The appellant’s claim should be rejected because it is inadequately briefed

      It appears that the appellant may be attempting to assert, in this appeal, a

challenge to the order denying his motion for post-conviction DNA testing, his

claim should be overruled. The appellant claims that this Court has jurisdiction by

virtue of article 64.01(a-1) and (b). App. Br. 1; see Tex. Code Crim. Proc. art.

64.05 (captioned “Appeals”). The appellant also asserts that an order denying

DNA testing is an appealable order. App. Br. 2.

      But even if it is assumed, arguendo, that the appellant is attempting to

pursue such an appellate challenge pursuant to article 64.05, his claim must fail

because it is inadequately briefed. In particular, the appellant’s brief does not

expressly challenge the order denying his motion for DNA testing. Nor does his

brief contain any arguments or authorities in support of such a challenge. For this

reason, any claim relating to that order has been improperly briefed and should be

rejected. See Tex. R. App. P. 38.1(f), (i); Hankins v. State, 132 S.W.3d 380, 385

(Tex. Crim. App. 2004) (“Because appellant does not provide any argument or

authority in support of this contention, it is inadequately briefed”); Wyatt v. State,

23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (“We will not make appellant's




                                          11
arguments for him” where “appellant points us to nothing in the record, makes no

argument, and cites no authority to support this proposition”).

      If the appellant is attempting to assert any some other appellate claim, that

claim is likewise inadequately briefed.

   3. If the appellant is asking this Court to order post-conviction DNA testing,
      that request should be rejected

      As was pointed out above , the appellant claims that this Court has

jurisdiction by virtue of article 64.01(a-1) and (b). App. Br. 1. However, it is only

“the convicting court” that is granted the authority to order post-conviction DNA

testing. Tex. Code Crim. Proc. art. 64.01(a); see, e.g., id., 64.03. The appellant

has not cited, and undersigned counsel has not found, any constitutional or

statutory provision that authorizes an appellate court to order such testing. If the

appellant’s brief is construed as requesting such an order from this Court, the

request must be rejected.

   4. The appellant’s claim should be rejected to the extent that he seeks an order
      granting or affecting his ability to obtain habeas relief

      In his prayer for relief, the appellant asks this Court, inter alia, to “grant the

Motion For Successive Petition and allow him the one and only opportunity to

prove that he has the Evidence in this application and in the Memorandum to show

that he has standing to be granted relief and that a Evidentiary Hearing is the only

                                          12
way that he can proceed to show his innocence.” App. Br. 3. A copy of a motion

for leave of court to file a successive habeas application is attached to the

appellant’s brief. That motion, however, is not currently pending before this

Court. The motion is addressed to the judges of “the Court of Criminal Appeals of

Austin, Texas.” It contains a certificate of service that indicates that the document

was being mailed to the Travis County district clerk.

      Significantly, the relief requested by the appellant cannot properly be

granted here because this Court lacks jurisdiction to grant it. The Court of

Criminal Appeals has exclusive jurisdiction to grant relief in a post-conviction

habeas corpus proceeding where there is a final felony conviction. Padieu v. Court

of Appeals of Texas, Fifth District, 392 S.W.3d 115, 117 (Tex. Crim. App. 2013);

Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985); Ex parte

Williams, 239 S.W.3d 859, 861-62 (Tex. App.—Austin 2007); Tex. Code Crim.

Proc. art. 11.07 § 5. Accordingly, this Court has no jurisdiction to issue an order

that would enable the appellant to circumvent the rule that restricts the ability of

other courts to consider the merits of, or grant relief based on, subsequent habeas

applications. See Tex. Code Crim. Proc. art. 11.07 § 4.     Thus, the appellant’s

claim should be rejected to the extent that he seeks an order of this Court that




                                          13
either grants habeas relief or enlarges the statutorily restricted ability of other

courts to grant such relief.


                                       PRAYER

      WHEREFORE, the State hereby requests that the Court dismiss the instant

appeal.

                                         Respectfully submitted,

                                         Rosemary Lehmberg
                                         District Attorney
                                         Travis County, Texas


                                         /s/ M. Scott Taliaferro
                                         M. Scott Taliaferro
                                         Texas Bar No. 00785584
                                         Assistant District Attorney
                                         District Attorney’s Office
                                         P.O. Box 1748
                                         Austin, Texas 78767
                                         Phone: 512.854.3626 Fax: 512.854.4810
                                         Email: scott.taliaferro@traviscountytx.gov
                                             and AppellateTCDA@traviscountytx.gov




                                           14
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based

on the computer program used to generate this brief, that this brief contains 2,675

words, excluding words contained in those parts of the brief that Rule 9.4(i)

exempts from inclusion in the word count. I certify, further, that this brief is

printed in a conventional, 14-point typeface except for footnotes, any and all of

which are printed in a conventional, 12-point typeface.



                                                      /s/ M. Scott Taliaferro
                                                      M. Scott Taliaferro




                          CERTIFICATE OF SERVICE

      I hereby certify that, on this 5th day of March, 2015, a copy of the foregoing

State's brief was sent, via U.S. mail, to the appellant at the following address:

      Robert Lee Brown
      TDCJ #927915
      Eastham Unit
      2665 Prison Road #1
      Lovelady, TX 75851

                                                      /s/ M. Scott Taliaferro
                                                      M. Scott Taliaferro



                                          15
