             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-75,812



                         HENRY WATKINS SKINNER, Appellant

                                                  v.

                                    THE STATE OF TEXAS

                ON APPEAL FROM THE DENIAL OF A MOTION
                   FOR POST-CONVICTION DNA TESTING
              FROM CAUSE NO. 5216 IN THE 31ST DISTRICT COURT
                              GRAY COUNTY


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


       At appellant’s trial, some evidence was tested for DNA, and some was not. State and federal

district courts have both found that defense counsel had a reasonable trial strategy for not requesting

the testing of the untested items. Some of the remaining items were subsequently tested. Appellant

now requests testing of items that still remain untested. We hold that, in the usual case, the interests

of justice do not require testing when defense counsel has already declined to request testing as a
                                                                                    SKINNER — 2

matter of reasonable trial strategy. Under that holding, we affirm the trial court’s decision to deny

the motion for DNA testing.

                                       I. BACKGROUND

       Appellant lived with Twila Busby and her two adult sons, Randy Busby and Elwin Caler,

both of whom had mental retardation. Between 10:15 and 10:30 p.m., on December 31, 1993,

Howard Mitchell came to the residence to take appellant and Twila to a New Year’s Eve party.

Howard found appellant asleep on the couch and was unable to wake him. Appellant had apparently

been drinking. Leaving appellant on the couch, Twila and Howard went to the party, but Twila soon

asked to be taken home because her uncle, Robert Donnell, was drunk and was following her around,

making rude sexual advances, and generally agitating her. Howard drove Twila home between 11:00

and 11:15 p.m., and left.

       At around midnight, Elwin showed up on a neighbor’s porch with stab wounds, from which

he subsequently died. Twila was found dead on the living room floor of her home, and Randy’s dead

body was found lying face down on the top bunk bed in the sons’ bedroom. Appellant was found

by police at Andrea Reed’s house, located three-and-a-half to four blocks away, at around 3:00 a.m.

When the police found him, appellant was standing in a closet and wearing clothing that was heavily

stained in blood on both the front and back.

       At trial, Andrea testified that appellant arrived at her house at around midnight and that they

conversed for three hours. She did not know how he entered her trailer, but when she saw him, he

took his shirt off and laid it on a chair. Appellant had a bleeding cut in his right hand. He heated

up sewing needles and attempted to bend them to sew up his hand, and then he asked her to sew it,

and she agreed. At some point, he went to the bathroom by himself. During their conversation,
                                                                                    SKINNER — 3

Andrea attempted to leave the room and call the police, but appellant stopped her and threatened to

kill her. Appellant told Andrea multiple stories about what happened at his home. He claimed that

a Mexican came to the door and pulled a knife, that Twila was in bed with her ex-husband with

whom appellant got into a fist-fight, that appellant thought he had killed Twila by trying to kick her

to death, that Ricky Palmer broke into the house, and that cocaine dealers were looking for Twila

and wanted her really bad.

       The medical examiner found that Twila had been strangled into unconsciousness and

subsequently beaten at least fourteen times about the face and head with a club. DNA testing

matched the blood on appellant’s clothing to Twila and Elwin. Three bloody handprints matching

appellant’s were found in the house: one in the sons’ bedroom and two on doorknobs leading out the

back door.

       A toxicological test of appellant’s blood, conducted at 5:48 a.m., showed that appellant had

0.11 milligrams of codeine per liter of blood and a blood alcohol level of 0.11.

       Defense counsel presented three defenses at trial. First, defense counsel focused on the

State’s failure to test some of the DNA evidence to show that the State engaged in a sloppy

investigation. Second, defense counsel painted Robert Donnell as an alternate suspect who could

have committed the murders.

       Finally, defense counsel presented evidence that appellant was too incapacitated by his

intoxication to have committed the murders. Dr. William Lowry, the defense toxicologist, testified

that most people at appellant’s level of intoxication would be comatose or asleep, and in any event,

between 12:00 and 3:30 a.m., appellant would have been in a stupor, with impaired consciousness,

general apathy, and an inability to stand or walk. Dr. Lowry believed that appellant was too
                                                                                    SKINNER — 4

incapacitated to travel to different rooms to kill the victims. However, Dr. Lowry was surprised that

appellant could locate Andrea’s house at midnight and that he asked her to sew up his hand.

       Appellant was convicted of capital murder and sentenced to death.1 This Court affirmed his

conviction and sentence on direct appeal.2

       In July of 2000, the Gray County District Attorney’s Office requested that certain additional

items be subjected to DNA testing by GeneScreen. Many items were subjected to traditional

genomic DNA testing and/or the newer mitochondrial DNA testing. The genomic DNA testing

revealed the following: Twila was included as a contributor to blood on the cover of a blue

notebook, a hair found on her back, a hair found in her left hand, and a hair from an axe handle.

Appellant was included as a contributor to DNA found on a cigarette butt. Twila and appellant were

both included as contributors to a mixed profile from hair in Twila’s right hand. Bloodstained gauze

reflected the profile of an unknown male individual, and a cassette tape with blood on it reflected

a profile that was a mixture of two unknown individuals. No conclusion could be drawn about

certain other items.

       Mitochondrial DNA testing revealed the following: The mitochondrial profile of Twila, or

any maternal relative of hers, was included in one of two hairs found in her right hand (the “first”

hair) as well as some other hairs collected from the scene. Appellant was excluded as a contributor

to these hairs. Results from the other hair found in Twila’s right hand (the “second” hair) and a hair

found in the living room were inconclusive.



       1
         T EX . PENAL CODE §19.03(a); TEX . CODE CRIM . PROC. art. 37.071. All references to articles
are to the Texas Code of Criminal Procedure.
       2
           Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997).
                                                                                    SKINNER — 5

       Several items remained untested, either because the District Attorney’s office did not submit

them or because the items were submitted but GeneScreen did not test them. Appellant filed a

motion for DNA testing under Chapter 64.3 He wanted to obtain testing on two knives found at the

scene, a rape kit from Twila, a blood-like substance on a cup towel found at the scene, blood from

under Twila’s fingernails, and hair and blood from a jacket found in the house. The trial court

denied the motion, and we affirmed the trial court’s decision on appeal.4 In our fact recitation, we

pointed to the “bloody palm prints” matching appellant and to the fact that appellant’s clothing “was

covered in the blood of two of the victims.”5 In the analysis section of our opinion, we explained

that the mixture of appellant’s and Twila’s DNA in blood found on the hairs in Twila’s right hand

“demonstrates the intermingling of the victim’s and appellant’s DNA, probably during the time when

she was struggling for her life.”6 From this evidence, we concluded that “there is nothing about the

other items found at the crime scene that, if linked to a third person, would cast doubt on the

appellant’s presence at the scene of [Twila’s] death or the appellant’s involvement in the offense.

Given this evidence and the other evidence detailed above, the presence of a third party’s DNA at

the crime scene would not constitute affirmative evidence of innocence.”7 And, disagreeing with

appellant’s contention that GeneScreen’s reports were ambiguous, we upheld the trial court’s

decision to deny the production of benchnotes that were created by the company during the course


       3
           See art. 64.01, et seq.
       4
           Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003).
       5
           Id. at 810.
       6
           Id. at 811.
       7
           Id.
                                                                                      SKINNER — 6

of testing.8

        Appellant subsequently filed a habeas corpus petition in federal court. The federal district

court found against him on all claims, and he filed an appeal with the Fifth Circuit. While that

appeal was pending, he filed a second motion for DNA testing in state district court. In this second

motion, he requested testing for the same items requested in the first motion, but he claimed that

testing was now required due to a new legal development in this Court and new factual

developments in connection with the federal habeas proceedings. The trial court denied testing for

a number of different reasons, and appellant appealed. It is that appeal that is now before us.

                                           II. ANALYSIS

        The trial court agreed with appellant that the evidence he seeks to test still exists and is in

a condition making DNA testing possible, that the chain of custody is sufficient and the integrity of

the evidence has been maintained, that identity was an issue in appellant’s case, and that the second

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

administration of justice.9 Nevertheless, the trial court denied appellant’s second motion for DNA

testing for a number of reasons: (1) law of the case, as the issues decided in appellant’s first

application were virtually identical, (2) failure to show ineffective assistance of counsel with respect

to the first DNA motion, a showing the trial court believed was the only exception permitting a

subsequent DNA motion, (3) failure to meet the “no-fault-of-the-convicted-person” requirement of

article 64.01(b)(1)(B) because trial counsel declined to seek DNA testing as “a matter of sound trial

strategy,” (4) failure to meet the “no-fault-of-the-convicted-person” requirement of article


        8
            Id. at 812.
        9
            Order on Defendant’s Second Motion for DNA Testing, findings 1-4.
                                                                                     SKINNER — 7

64.01(b)(1)(B) because appellant failed to meet his burden of proof on the first DNA motion and has

not alleged that counsel on that motion was ineffective, and (5) failure to accompany appellant’s

second DNA motion with an affidavit or the unsworn declaration of an inmate.10 These reasons

present a number of interesting legal issues, but we choose to address only the third, and we conclude

that the trial court’s resolution on that rationale was correct.11

        Chapter 64 contains several requirements that must be met before a convicted person may

obtain DNA testing. One of these requirements is an “unavailability” showing, which can be

satisfied when the record shows one of several scenarios:

                  [The evidence in question . . .]

                  (1) was not previously subjected to DNA testing:

                      (A) because DNA testing was:

                          (i) not available; or

                         (ii) available, but not technologically capable of providing probative
                         results; or

                      (B) through no fault of the convicted person, for reasons that are of a
                       nature such that the interests of justice require DNA testing; or

                  (2) although previously subjected to DNA testing, can be subjected to testing
                  with newer testing techniques that provide a reasonable likelihood of results




        10
             Id., findings 5-9.
        11
            With respect to (5), we observe that Chapter 64 requires that a DNA motion “be
accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in
support of the motion.” Art. 64.01(a). Appellant claims the affidavit from his first motion was
incorporated by reference into his second motion and that such incorporation was sufficient to satisfy
the statutory requirement. We do not address this issue.
                                                                                       SKINNER — 8

                  that are more accurate and probative than the results of the previous test.12

Another requirement is the “different outcome” showing, which is satisfied when “the convicted

person establishes by a preponderance of the evidence that . . . the person would not have been

convicted if exculpatory results had been obtained through DNA testing.”13

        With respect to the unavailability showing, appellant asserts only the “no fault . . . interests

of justice” scenario found in article 64.01(b)(1)(B). He claims that this unavailability scenario would

be satisfied if trial counsel were found to be constitutionally ineffective in failing to seek testing of

the items in question. He also claims, based on the unpublished opinion in Raby v. State,14 that the

interests of justice require testing if such testing could establish guilt or innocence, especially where

there exists substantial lingering doubt about whether the convicted person committed the crime.

His argument appears to equate the “no fault . . . interests of justice” scenario for showing

unavailability with the separate “different outcome” requirement. Our reading of appellant’s position

in this regard is further supported by his much more extensive reliance upon Raby in connection with

his argument regarding the “different outcome” showing and by his contention that “additional

evidence has come to light that further, and dramatically, casts doubt on Mr. Skinner’s guilt,”

creating circumstances under which “the interests of justice, which the legislature sought to protect

via Article 64.03(a)(2)(A), require the testing of the DNA evidence identified in [appellant’s] First




        12
             Art. 64.01(b).
        13
             Art. 64.03(a)(2)(A).
        14
           No. AP-74,930 (Tex. Crim. App. June 29, 2005)(plurality op.)(not designated for
publication).
                                                                                        SKINNER — 9

Motion.”15

        Under this Court’s approach to statutory construction, we interpret a statute in accordance

with the plain meaning of its language unless the language is ambiguous or the plain meaning would

lead to absurd results that the legislature could not have possibly intended.16 In determining the plain

meaning of the statutory language we read words and phrases in context and construe the text

according to the rules of grammar and usage, and we presume that “the entire statute is intended to

be effective.”17

        The “no fault . . . interests of justice” provision does not exist in a vacuum. That provision

is phrased in the alternative with other provisions that unambiguously address whether DNA testing

was available in some fashion to the defendant at trial. DNA testing was not conducted either

because it was unavailable, or because the particular technology available at the time would not yield

probative results, or testing was conducted but newer technology would yield more accurate and

probative results. In context, the “no fault . . . interests of justice” provision shares the character of

these other, alternative provisions as a method of ascertaining the availability of DNA testing. So

it is not enough under this provision to claim, as appellant does, that an exculpatory test result would

change the outcome of the case. The fact that testing would be outcome-determinative, if conducted,

does not mean that the testing was in some sense unavailable.

        Moreover, appellant’s position would render the article 64.01 availability provisions



        15
             Emphasis added.
        16
             Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
        17
         Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996); see also TEX . GOV ’T
CODE §§ 311.011(a), 311.021(2).
                                                                                   SKINNER — 10

meaningless. The “no fault . . . interests of justice” provision found in article 64.01(b)(1)(B) would

be redundant because a convicted person is already required to prove the outcome-determinative

nature of testing under article 64.03(a)(2)(A). And by swallowing the “no fault . . . interests of

justice” provision, an outcome-determinative test would render meaningless the other alternatively

phrased availability provisions. There would never be any need to determine whether DNA testing

was available, whether it could produce probative results, or whether newer techniques would

produce more accurate results. The inquiry under article 64.01(b)’s availability provisions would

always revolve around the “no fault . . . interests of justice” question because the answer would also

resolve the outcome-determinative requirement found elsewhere in the statute.               Such an

interpretation is simply untenable.

       Nor are we persuaded by appellant’s reliance upon our unpublished, plurality opinion in

Raby. Under Rule 77.3 of the Rules of Appellate Procedure, unpublished opinions from this Court

“have no precedential value and must not be cited as authority by counsel or by a court.”18 Appellant

claims that he cites Raby only as persuasive authority, but the rule prohibits the use of an

unpublished opinion as authority of any sort, whether binding or persuasive.19 Appellant contends

that Rule 77.3 is functionally identical to Rule 47.7, which applies to the courts of appeals and

provides that unpublished opinions “have no precedential value but may be cited with the notation,

“(not designated for publication).”20 We disagree. Rule 47.7 used to contain the same language



       18
         T   EX . R. APP . P.   77.3.
       19
         The rule does not prohibit citation to an unpublished opinion for the purpose of
showing facts or the procedural history of the case.
       20
            See id., R. 47.7.
                                                                                      SKINNER — 11

found in Rule 77.3,21 but the language was changed to accomodate changes in civil practice.22 And

appellant’s contention that Raby encapsulates the Court’s thinking is undercut by its plurality status.

And even if an unpublished, plurality opinion could be considered, its persuasive value would be

minimal and would not override a statutory construction analysis based on the plain meaning of the

statutory text.23

        We do agree with appellant that evidence that counsel provided constitutionally ineffective

assistance in failing to seek DNA testing of certain items could be sufficient to show that the failure

to test was not appellant’s fault “for reasons that are of a nature such that the interests of justice

require DNA testing.” The reasoning behind permitting challenges to the effectiveness of a trial

attorney’s representation is that “[a]n accused is entitled to be assisted by an attorney . . . who plays

the role necessary to ensure that the trial is fair.”24 Conversely, if trial counsel declined to seek

testing as a matter of reasonable trial strategy, then post-trial testing would not usually be required

by the interests of justice. To hold otherwise would allow defendants to “lie behind the log” by

failing to seek testing because of a reasonable fear that the results would be incriminating at trial but

then seeking testing after conviction when there is no longer anything to lose.

        But no showing of ineffective assistance has been made here. Appellant acknowledges that



        21
             See TEX . R. APP . P. 47.7 (West 2002).
        22
             See TEX . R. APP . P. 47, Notes and Comments, 2nd para. (West 2008).
        23
          At any rate, we do not believe that the reasoning in the plurality opinion in Raby is
inconsistent with our holding today, and the facts in Raby are highly distinguishable because no
blood or physical evidence in that case connected the convicted person to the scene of the crime.
See Raby, No. AP-74,930, HTML op. at 7.
        24
             Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                                                                      SKINNER — 12

the federal district court decided this question adversely to his position.25 Trial counsel explained

that he did not ask for testing because he was afraid the DNA would turn out to be appellant’s.26 The

federal district court found that an incriminating DNA test result of biological material from some

of the items, such as from the knife handle, or under Twila’s fingernails, or found clutched in her

hand, would have been highly probative, incriminating evidence for the prosecution.27 The court also

concluded that conducting its own DNA test would also have deprived the defense of its primary

argument at trial that the government conducted a shoddy investigation.28 The court also found that

defense counsel reasonably feared that any testing he performed could not be kept secret because the

State would know what items he tested and could decide to test them as well.29 And the court

observed that defense counsel was relieved when the deadline had passed and the State had done no

further testing.30 Appellant makes no independent argument in this Court to demonstrate that

counsel was ineffective. Rather, he relies in his brief solely upon the possibility that the Fifth Circuit

might reverse the federal district court’s decision. Sometime after appellant’s brief was submitted,

the Fifth Circuit issued an opinion denying a certificate of appeal on that question.31 As we have

explained above, the state district court found that the failure to seek DNA testing was “a matter of



        25
             See Skinner v. Quarterman, 2007 WL 582808 at 29-33 (February 22, 2007).
        26
             Id. at 29.
        27
             Id. at 31.
        28
             Id. at 32.
        29
             Id. at 31.
        30
             Id.
        31
             Skinner v. Quarterman, 528 F.3d 336, 341-42 (5th Cir. 2008).
                                                                                    SKINNER — 13

sound trial strategy.” This conclusion is supported by the record.

       We next turn to appellant’s contention that evidence in addition to that presented at trial

supports the conclusion that DNA testing would be in the interests of justice. The evidence falls into

two categories: (1) evidence that buttresses a claim that appellant was too incapacitated by

intoxication to have committed the murders, and (2) the results of DNA testing conducted in 2000.

Appellant points to three types of evidence relating to his alleged incapacitation: (1) recantations by

Andrea Reed, (2) evidence that appellant had previously reported an allergy to codeine, and (3) blood

spatter evidence suggesting that Elwin was in the room when Twila was being beaten.

       At the federal habeas hearing, Andrea testified that she lied when she indicated that appellant

entered her house on his own, removed his shirt, heated needles, and used the bathroom.32 She

claimed that she actually had to assist him in entering the house and using the bathroom and that she

heated the needles and removed his shirt because appellant was unable to perfom even simple tasks

on his own.33 She also claimed that she lied when she said that he threatened her and that he merely

asked her not to tell anyone. Finally, she claimed she gave false statements during the police

investigation and at trial because the police had threatened to arrest her for harboring appellant when

she knew that he had warrants against him.34

       Defense counsel could not have anticipated that Andrea would recant her trial testimony.

Assuming, without deciding, that in an appropriate case, new, unforeseeable evidence could cast a

new light on what was at the time a reasonable trial strategy so as to require DNA testing in the


       32
            Skinner, 2007 WL 582808 at 8
       33
            Id.
       34
            Id. at 9.
                                                                                    SKINNER — 14

interests of justice, Andrea’s testimony does not do so here. Appellant concedes that the federal

district court did not credit her recantation testimony. The federal district court found Andrea’s

recantation testimony to be not credible or truthful.35

       In arriving at this conclusion, the district court cited a great deal of rebuttal evidence that

contradicted the recantations. Gerry Douglas, a neighbor, testified that Andrea told him appellant

had come barging into her house, had run into the back bedroom, and had threatened to kill her and

her kids if she told anyone where he was hiding.36 Appellant’s ex-wife Connie Neighbors testified

that Andrea told her that appellant had been to her house, had told her that he thought he had killed

the victims, and had threatened her if she called anyone.37 Both of these statements were made

shortly after the incident and the witnesses respectively characterized Andrea as “hysterical” and

“shaking and crying.”38 In a police statement, Jessica Reed, Andrea’s daughter, recalled that

applicant banged loudly on the door, identified himself, and entered the house before Andrea reached

the living room.39 At some point Jessica heard applicant ask where the bathroom was and then say

that he knew where it was. She also heard Andrea tell him to go back to the living room after he left

the bathroom.40 Jessica no longer remembered the events in question, but she maintained that what




       35
            Skinner, 2007 WL 582808 at 16.
       36
            Id. at 9.
       37
            Id.
       38
            Id.
       39
            Id.
       40
            Id.
                                                                                     SKINNER — 15

she said in her statement was what happened.41 Testimony from law enforcement witnesses

contradicted Andrea’s claim that the police threatened her.42

       The state district court adopted the federal district court’s rejection of Andrea’s recantation.43

We review deferentially the state district court’s determination of the credibility of a recantation,44

and the state district court’s finding in this case is supported by the record.

       With respect to the codeine and blood spatter evidence, appellant’s claim in the federal

habeas proceedings was that counsel was ineffective. Assuming, without deciding, that ineffective

assistance with respect to non-DNA evidence could, in an appropriate case, impact the

reasonableness of a trial strategy to forgo DNA testing, we nevertheless reject appellant’s

contentions. In the federal habeas proceedings, appellant presented evidence that he had informed

defense counsel in a letter that he was allergic to codeine and that he had self-reported a codeine

allergy in various hospital visits.45 Counsel did not recall seeing the information, and he did not

discuss it with Dr. Lowry.46 Dr. Lowry testified that this information would have bolstered his trial

testimony regarding appellant’s incapacity argument because a codeine allergy would have enhanced

appellant’s disability after taking codeine that night, or if appellant incorrectly believed that he was




       41
             Id.
       42
             Id. at 9-10.
        43
             See Order, finding 15.
       44
             Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
       45
             Skinner, 2007 WL 582808 at 23.
       46
             Id. at 24.
                                                                                    SKINNER — 16

allergic to codeine, he would have avoided it and thus not developed a tolerance to the drug.47

       The federal district court assumed, for the purposes of argument, that trial counsel performed

deficiently in failing to inform Dr. Lowry that appellant might be allergic to codeine, but the court

held that appellant was not prejudiced.48 We find the following facts cited by the federal district

court to be significant with respect to that conclusion and with respect to the case at hand: Appellant

did not appear to have an allergic reaction to the codeine in his system on the night of the offense.49

Appellant’s ex-wife testified that appellant was not allergic to codeine, but he did not like to use it

because it was not strong enough.50 Dr. Michael Chamales, an emergency room medical director

who was an emergency room doctor who treated appellant in October 1993, testified that appellant

self-reported having a codeine allergy, but appellant was also caught trying to steal syringes.51 Dr.

Chamales further testified that, in his experience, drug seekers will report false allergies so that

doctors will be directed to prescribe more desirable medications.52 Appellant also reported an allergy

for Toradol but had a prescription for it filled in June of 1993.53 Appellant did supply the testimony

of Lori Brim, a friend of his, who suggested that she saw appellant have an allergic reaction to

codeine many years ago, but this was based on a suggestion made over the telephone by a nurse, not



       47
            Id. at 23.
       48
            Id. at 24.
       49
            Id.
       50
            Id.
       51
            Id. at 23.
       52
            Id.
       53
            Id. at 24.
                                                                                    SKINNER — 17

the diagnosis of a medical professional.54

       Appellant also claims that blood spatter evidence shows that Elwin must have been in the

room when Twila was killed and that appellant, in his intoxicated state, was not likely to have

overcome both victims at the same time, especially since Elwin was six feet six inches tall and

weighed 225 pounds. In the federal habeas proceedings, appellant claimed that trial counsel was

ineffective for failing to use this evidence at trial and show it to his expert, Dr. Lowry.55 Dr. Lowry

testified that this evidence would have bolstered his testimony because he would have testified that

appellant did not have the capacity to kill Twila while fending off her son.56 The federal district

court assumed that counsel’s performance was deficient but found no prejudice.57 The Fifth Circuit

said that a finding of prejudice on this issue would require “considerable speculation,” but it held

that the issue was arguable and granted a certificate of appeal.58 In a later appeal, the Fifth Circuit

rejected appellant’s contention and affirmed the district court.59

       We find persuasive several facts cited by the federal district court on this matter. The

medical examiner had testified that Twila would have been unconscious from strangulation before

she was beaten, so she could have been unconscious or dead before Elwin entered the room.60 And



       54
            Id.
       55
            Id. at 21.
       56
            Id.
       57
            Id. at 22.
       58
            Skinner, 528 F.3d at 344.
       59
            Skinner v. Quarterman, 2009 U.S. App. LEXIS 15570 at 4-10 (5th Cir., July 14).
       60
            Skinner, 2007 WL 582808 at 22.
                                                                                 SKINNER — 18

Elwin suffered from disabilities: He was “slow” and had muscular dystrophy and diabetes, and these

disabilities prevented him from working.61 Given these conditions, he might not have been able to

mount an effective defense.62

       Moreover, a number of other facts indicate that appellant did possess the capacity to commit

the murders. Appellant walked three-and-a-half to four blocks from his home to Andrea’s house.63

This was inconsistent with what Dr. Lowry thought a person with the amount of codeine and alcohol

in appellant’s system could do.64 Further, Dr. Lowry acknowledged that it was possible that

appellant took the codeine after the murders, possibly to soothe the pain in his injured hand.65 In

addition, appellant told authorities that they would be amazed what he did “mind-wise” when he was

drunk, as he can read and do math, and he even defended himself successfully in traffic court once,

although he does not remember things afterwards.66 And appellant’s long history of alcohol and drug

abuse does suggest that he would be more drug tolerant than the average individual.67

       In addition, other evidence circumstantially linking appellant to the crime suggests that he

must have had the capacity to commit it. A substantial amount of incriminating physical evidence



       61
          Id.; see also Skinner, 956 S.W.2d at 535, 535 n.2 (Elwin and Randy were referred to as
“mentally-retarded” at trial, but their levels of functioning were not elaborated upon).
       62
          See Skinner, 2007 WL 582808 at 22 (“Thus, even given his size . . . Elwin’s ability to
fight back or escape might have been lower than persons his size without disabilities”).
       63
            Id. at 15; see also Skinner, 528 F.3d at 343, 343 n.8, 344 n.10.
       64
            See Skinner, 2007 WL 582808 at 25; Skinner, 528 F.3d at 344 n.10.
       65
            Skinner, 2007 WL 582808 at 23, 25; Skinner, 528 F.3d at 343.
       66
            Skinner, 2007 WL 582808 at 17.
       67
            See Skinner, 528 F.3d at 340.
                                                                                     SKINNER — 19

connected appellant to the crime: DNA testing of blood stains on his clothing showing a match with

Twila and Elwin, the serious cut in appellant’s right hand, the matching handprints found in the

house, and the mixed profile containing appellant’s and Twila’s DNA. Appellant linked himself to

the crime in a statement to the police in which he said that he thought Twila gave him the cut on the

hand that night and they may have gotten into a fight, but he claimed not to remember plainly.68 And

because the district court found Andrea’s recantation to be not credible, we also take into account

her original story that appellant came into her house on his own power and used threats to prevent

her from calling the police or anyone else. Moreover, other incriminating information related by

Andrea was not recanted: the multiple stories about what happened that night and appellant’s

instructions to Andrea to stitch up his hand and not to call anyone.69 Given these circumstances and

all of the other evidence discussed, we conclude that appellant’s proferred evidence on the issue of

incapacity does not call into question defense counsel’s strategy to forgo DNA testing.

       Finally, we address appellant’s reliance on the DNA testing conducted in 2000. Assuming,

without deciding, that in an appropriate case post-trial DNA testing could cast a new light on what

was at the time a reasonable trial strategy not to seek testing, so as to require further DNA testing

in the interests of justice, we decide that such is not the case here. Appellant contends that

mitochondrial testing of the first hair in the victim’s right hand revealed that it came from one of the

victims or a maternal relative of the victims, which would include the defense’s alternate suspect,

Robert Donnell. Appellant claims that mitochondrial testing of the second hair shows that it did not

come from the victims or appellant. He contends that these results “raise the very real possibility


       68
            See Skinner, 528 F.3d at 340, 340 n.1.
       69
            See Skinner, 2007 WL 582808 at 11-12, 17.
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that Donnell or another outsider to the household was the real murderer.” He suggests that raising

such a “very real possibility” is sufficient grounds for obtaining DNA testing. We are not persuaded.

        By itself, a mitochondrial test result linking the first hair to one of the victims or a maternal

relative of the victims means nothing. Portions of the federal habeas hearing are included in the

record before us. Dr. William Shields, the defense DNA expert at the federal habeas hearing,

explained that, usually, all maternal relatives have the same mitochondrial DNA signature. So any

hair from Twila would also match her two sons, her mother, and any uncles and aunts that are

children of her maternal grandmother. Dr. Shields acknowledged that, under most circumstances,

mitochondrial DNA testing was not a useful method of distinguishing between maternal relatives.

He testified that paternal leakage can occur, but it does so in less than one in a million instances. So,

if Robert Donnell is a maternal relative of the victims, as appellant suggests, then a mitochondrial

testing result that matches the victims’ maternal line does not, by itself, convey any meaningful

information about his potential involvement in the offense. And appellant does not proffer any other

information to suggest that the first hair came from someone other than the victims.

        Appellant’s claim that the second hair did not come from him or the victims is based upon

testimony from Dr. Shields at the federal habeas hearing. Though the GeneScreen report says that

the test result was “inconclusive,” Dr. Shields disagreed, based upon underlying data obtained during

federal discovery proceedings. Dr. Shields concluded that Twila (and presumably her sons) were

absolutely excluded as contributors of the mitochondrial DNA due to differences on many of the

reference points. Based upon one absolute difference and two other differences “on the face, ” he

concluded that appellant was more likely than not excluded as a contributor. He acknowledged that

a difference in one base pair might not be enough to exclude a person. Dr. Shields further testified
                                                                                     SKINNER — 21

that “based on today’s standards it would be rational, though I think wrong, based on what I saw, to

say that you couldn’t make a decision to exclude or include” appellant. “In other words, I would not

exclude him from attributing that hair myself, not in that sort of sense, but I believe it’s more likely

to exclude than include.” In an affidavit submitted before his testimony, Dr. Shields related that he

had been provided a report of a December 2000 telephone conversation between GeneScreen and

the District Attorney, which included a statement that the second hair likely came from appellant,

but the written report changed this conclusion to “inconclusive.” Dr Shields found both of these

conclusions to be inexplicable.

       Dr. Shields acknowledged that he was working from incomplete data. He testified that a

review of the electronic data was necessary to confirm the hard copy data, but, though he possessed

a compact disc purporting to contain electronic data, the data was not in usable form. He also

testified that the hard copy data was incomplete.

       William Watson, a senior forensic scientist at GeneScreen, testified that he gave an

“inconclusive” result because he determined that he was dealing with a mixed sample, and it would

not have been appropriate to interpret a mixed sample.70 According to a mitochondrial testing

protocol that Dr. Shields acknowledged was used in the industry, “interpretations regarding the

sources of mixtures should be made very cautiously, if at all.” Dr. Shields nevertheless maintained,

“I’ve reviewed many protocols. And all of them allow for interpretation of mixed samples,

especially exclusions.” But Dr. Shields also admitted that DNA samples could be contaminated

much more easily for mitochondrial DNA testing purposes than for genomic DNA testing purposes.

       Dr. Shields also maintained that the sample was not a mixture but was not asked to

       70
            See Order, finding 13; Skinner, 2007 WL 582808 at 30.
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specifically elaborate on that conclusion. He later read the following passage from the submitted

protocol: “The possibility of a mixture should be considered when more than one peak occurs in a

particular based position, that is not presumed to be due to background noise, messy data, irregular

spacing, heteroplasmy, et cetera. A mixture of mtDNA from two people will show two different

peaks in all the base positions where one person’s sequence differs from the other.” Then, after

reading the sentence urging caution in evaluating mixed samples, Dr. Shields concluded, “So all I’m

saying about this particular thing is that it, like most other interpretation guidelines, recognizes that

there are things that may look a little bit like mixtures, but they are (inaudible) interpretation.”

         Appellant’s evidence regarding the second hair is simply too tenuous and speculative to

warrant consideration. Even if we accept Dr. Shields’s opinion that the victims were excluded as

contributors, that would also mean that Robert Donnell was excluded, if, as appellant claims, he was

a maternal relative. Dr. Shields’s conclusion that appellant was excluded was far more shaky. In

saying that appellant was more likely than not excluded, Dr. Shields was in essence acknowledging

up to a 49 percent chance that appellant was in fact the contributor. Dr. Shields expressed

understanding that a lab would be reasonable in refusing to make an exclusion determination.

Although he claimed that the sample was not mixed, his testimony was brief and ambiguous on that

matter, and he seemed to disagree with the only protocol presented on whether it was advisable to

interpret a mixed sample.

        In contrast, Watson unambiguously testified that he was dealing with a mixed sample, and

interpreting a mixed sample was not appropriate. The state district court credited this testimony.71

Unlike Dr. Shields, Watson had access to the samples themselves and, presumably, the complete

        71
             Order, finding 13.
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data generated during testing. Genomic testing revealed a mixed sample of appellant’s and Twila’s

DNA on those very hairs, and it may well be that it was that mixture that contaminated the second

hair, rendering a mitochondrial DNA test unreliable.72

       In conclusion, the record does not show the unavailability of DNA testing under the “no fault

. . . interests of justice” provision because defense counsel’s decision to forgo testing was a

reasonable trial strategy. And assuming, without deciding, that post-trial evidence could in an

appropriate case require us to retrospectively second-guess a trial strategy that was reasonable at the

time, the evidence presented here does not require us to do so.

       The judgment of the trial court is affirmed.

Delivered: September 23, 2009
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       72
           The state district court also found, based upon findings in the federal district court, that
the DNA result on the second hair was not significant because the home was an area of high traffic,
and even if the hair were Robert Donnell’s, he had been in the home on many occasions. Order,
finding 13. We do not decide whether those findings can be reconciled with the position of the
district court in finding 12 and our holding in the appeal from appellant’s first motion for DNA
testing that the presence of a mixed sample on hairs contained in Twila’s right hand was highly
incriminating evidence that showed that appellant’s DNA was deposited during Twila’s struggle for
her life.
