Opinion issued October 13, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00062-CR
                           ———————————
                     JOHN DANIEL BROOKS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 263rd District Court
                           Harris County, Texas
                        Trial Court Case No. 330063


                         MEMORANDUM OPINION

      A jury convicted appellant John Daniel Brooks of attempted capital murder in

1981, and assessed punishment at 99 years’ confinement. Over thirty years after he

was convicted, Brooks filed a motion for post-conviction DNA testing in the trial

court, pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. arts. 64.01–64.05. The trial court denied Brooks’s motion.

Brooks appeals, contending that the trial court erred in denying his motion or, in the

alternative, alleging ineffective assistance of counsel related to his appointed

counsel’s representation in the post-conviction proceedings. We affirm.

                                    Background

      Brooks was convicted of attempted capital murder in 1981, and this Court

affirmed on direct appeal. Brooks v. State, No. 01-81-0891-CR (Tex. App.—

Houston [1st Dist.] Apr. 14, 1983) (not designated for publication).          Brooks

subsequently requested post-conviction DNA testing, alleging it would show that

neither his nor the complainant’s blood was on the knife used to secure the

conviction. The trial court appointed Kelly Ann Smith to represent Brooks in the

post-conviction proceeding.

      After some investigation, Smith filed a motion to withdraw. In her motion,

Smith asserted that Brooks was not entitled to post-conviction DNA testing because

identity was never an issue in his case and because exculpatory test results would

not establish that Brooks would not have been convicted. See TEX. CODE OF CRIM.

PROC. art. 64.01 et seq. Smith’s motion explained that Brooks initially sought to

have the knife tested for DNA evidence, but during her investigation, Smith learned

that all evidence remaining in the property room had been destroyed. On further




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investigation, however, Smith learned that the crime lab still possessed fingernail

scrapings from the complainant in Brooks’s case.

      Despite the existence of the fingernail scrapings, Smith nevertheless

concluded that Brooks was not entitled to DNA testing because the results of the

testing would not exculpate him given the other incriminating evidence. According

to Smith, her investigation revealed that the complainant in the case had been

stabbed seven times, severely beaten, restrained with a telephone cord, and sexually

assaulted in her home. Following the attack, the complainant identified Brooks as

the attacker and provided the police with his name and address. Smith’s motion

stated that the complainant later identified Brooks as her attacker from a

photographic lineup and the police recovered latent palm and fingerprints left in

blood in the complainant’s house that examiners matched to Brooks. Smith noted

that a mental health evaluation stated that Brooks claimed he acted in self-defense

when stabbing the complainant and that the two engaged in consensual sexual

intercourse.1 Smith noted that nothing suggested that the complainant scratched her

attacker; thus, the absence of Brooks’s DNA or the presence of another’s DNA in

the victim’s fingernail scrapings would not prove Brooks did not sexually assault




1
      The mental health evaluation, police offense report, and affidavits referred to in
      Smith’s motion were not attached to it and are not included in the clerk’s record on
      appeal, which also does not contain the reporter’s record from the jury trial.

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and stab the complainant. Id. Accordingly, Smith requested that the trial court grant

her leave to withdraw.

      The trial court granted Smith’s motion and denied Brooks’s request for post-

conviction DNA testing. In its order, the trial court took judicial notice of the clerk’s

file and found that Brooks was not entitled to DNA testing because (1) identity was

never an issue and (2) exculpatory test results from the victim’s fingernail scrapings

would not establish that Brooks would not have been convicted. Brooks appealed.

                                      Discussion

      In two issues, Brooks contends that (1) the trial court erred in denying his

motion or, in the alternative, (2) he received ineffective assistance of counsel in the

post-conviction proceeding.

A.    DNA Testing

      1.     Standard of Review

      We review the trial court’s decision with regard to DNA testing using a

bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.

2002). We afford almost total deference to the trial court’s determination of

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

demeanor, while we review de novo other application-of-law-to-fact issues. Id.




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      2.     Applicable Law

      Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted

person may file a motion for DNA testing in the convicting court. TEX. CODE OF

CRIM. PROC. art. 64.01(a-1). The motion must be accompanied by a sworn affidavit

containing supporting facts. Id. The convicting court may order DNA testing if it

finds that: (1) evidence still exists, is in a condition making DNA testing possible,

and is subject to a chain of custody sufficient to establish that it has not been altered;

(2) identity was or is an issue in the movant’s case; and (3) the movant established

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

exculpatory results had been obtained through DNA testing and the request is not

made to unreasonably delay the sentence. TEX. CODE OF CRIM. PROC. art. 64.03(a);

Prible v. State, 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008); Thompson v. State,

95 S.W.3d 469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

      Under article 64.03, a convicted person is not entitled to DNA testing unless

he first shows that there is “greater than a 50% chance that he would not have been

convicted if DNA testing provided exculpatory results.” Ex parte Gutierrez, 337

S.W.3d 883, 889 (Tex. Crim. App. 2011) (quoting Prible, 245 S.W.3d at 467–68);

see also Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). This burden

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,



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that the defendant would not have been convicted. Gutierrez, 337 S.W.3d at 889.

“A ‘favorable’ DNA test result must be the sort of evidence that would affirmatively

cast doubt upon the validity of the inmate’s conviction; otherwise, DNA testing

would simply ‘muddy the waters.’”         Gutierrez, 337 S.W.3d at 892 (citations

omitted).

      3.     Analysis

      Brooks argues that he would not have been convicted if exculpatory DNA test

results were obtained from the complainant’s fingernail scrapings. He asserts that

such results would contradict the complainant’s testimony that Brooks was her

attacker and create a reasonable doubt about the attacker’s identity.

      However, Brooks does not articulate how the absence of his own DNA in the

complainant’s fingernail scrapings would be exculpatory in light of the strong

evidence that implicates him, including the evidence that the complainant was

restrained with a telephone cord during the attack. There is no evidence that the

complainant scratched her attacker such that DNA testing of her fingernail scrapings

would provide evidence indicative of her attacker’s identity. Additionally, it is

undisputed that the complainant identified Brooks as her attacker and provided the

police with Brooks’s name and address. It is also undisputed that Brooks’s palm

and fingerprints were found in blood in the complainant’s residence following the

attack.



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      In Ex parte Gutierrez, the Court of Criminal Appeals affirmed the denial of a

motion for post-conviction DNA testing and held that the appellant had failed to

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

if exculpatory test results were obtained from the victim’s fingernail scrapings. 337

S.W.3d at 900–01. The Gutierrez court reasoned that there was no evidence that the

victim was able to hit or scratch her murderers with her fingernails; so, even if DNA

was found under her fingernails, there was no way of knowing whether it came from

her murderers. Id. at 901. Ultimately, the Court found that DNA testing would

“merely muddy the waters” because a third-party match to the requested biological

evidence would not overcome the “overwhelming evidence” of appellant’s

involvement in the murder. Id. at 901–02.

      Here, as in Gutierrez, there is no evidence that any DNA found in the

complainant’s fingernail scrapings belonged to her attacker. Thus, even if the

complainant’s fingernail scrapings were tested and produced evidence of a third

person’s DNA, excluding Brooks as the donor of the material, such results would

“merely muddy the waters.” See Gutierrez, 337 S.W.3d at 901; cf. Blacklock v.

State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007) (reversing denial of motion

for DNA testing where appellant showed by a preponderance of evidence that

victim’s lone attacker would be donor of material for which appellant sought testing

and thus, exculpatory test results would establish appellant’s innocence).



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          Given the other incriminating evidence—namely, the complainant’s

identification of Brooks as her attacker and Brooks’s palm and fingerprints in blood

at the crime scene—we cannot conclude by a preponderance of the evidence that

Brooks would not have been convicted if exculpatory test results from the

complainant’s fingernail scrapings were obtained and presented at trial.         See

Gutierrez, 337 S.W.3d at 902. Thus, we do not find that the trial court erred in

denying Brooks’s motion for post-conviction DNA testing. See Rivera, 89 S.W.3d

at 60–61 (affirming denial of motion for DNA testing and finding evidence

insufficient to establish that absence of DNA under murder victim’s fingernails and

negative result from rape kit would have changed outcome of trial); Thompson, 95

S.W.3d at 471 (affirming denial of motion for post-conviction DNA testing and

holding that even if negative test results were to supply an exculpatory inference,

such an inference would not conclusively outweigh other evidence of appellant’s

guilt).

          We overrule Brooks’s first issue.

B.        Ineffective Assistance of Counsel

          1.    Applicable Law

          To prevail on an ineffective assistance of counsel claim, an appellant must

first prove by a preponderance of the evidence that his counsel’s representation fell

below the objective standard of professional norms. Strickland v. Washington, 466



                                              8
U.S. 668, 687–88, 104 S. Ct. 2052, 2064–65 (1984); Bell v. State, 90 S.W.3d 301,

307 (Tex. Crim. App. 2002) (en banc). He must then show that this deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

      Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance. See Bell, 90 S.W.3d at 307. The record on a direct appeal

will often be inadequate to determine whether counsel’s representation was so

deficient and so lacking in tactical or strategic decision-making as to overcome the

presumption that her conduct was reasonable and professional. Id.

      The Court of Criminal Appeals has not yet decided whether an appellant may

raise a claim of ineffective assistance of counsel in a direct appeal from a denial of

a motion under Chapter 64. See id. However, in Bell, the Court concluded that

assuming, arguendo, that such a claim may be raised, it would be analyzed under

the Strickland test. Id.

      2.     Analysis

      Brooks asserts that if his motion for post-conviction DNA testing is

unsupported by sufficient evidence, his court-appointed counsel Smith was

ineffective because she failed to file supporting affidavits and other documents she

reviewed in the course of her investigation. He argues that Smith should have put




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“into the record all evidence that would support the client’s motion for DNA testing,

even though she concluded that it was insufficient to entitle him to relief.”

      We have previously stated that “a convicted person is, by statute, entitled to

counsel during a proceeding under Chapter 64 of the Code of Criminal Procedure,”

but “a legislative decision to provide appointed counsel for a prisoner mounting a

post-conviction collateral attack does not trigger a constitutional right to effective

representation in that proceeding.” Kitt v. State, No. 01-04-00633-CR, 2005 WL

2385619, at *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2005, pet. ref’d).

However, assuming, arguendo, that we were to recognize an ineffective assistance

claim in connection with representation in a Chapter 64 proceeding, Brooks would

then be required to establish by a preponderance of the evidence that Smith’s

representation fell below the objective standard of professional norms and

prejudiced his defense. See Bell, 90 S.W.3d at 307.

      Brooks fails to explain how Smith’s alleged error—failing to enter the

affidavits and documents she reviewed during her investigation into the record—

impacted the trial court’s ruling on his motion for post-conviction DNA testing. The

trial court denied Brooks’s motion because it determined that identity was not an

issue and exculpatory DNA test results would not establish that Brooks would not

have been convicted. Brooks fails to articulate what information, if any, the alleged

missing documents contain that would have altered the trial court’s conclusion.



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Specifically, he does not assert how the documents would establish (1) that identity

is or was an issue in the case and (2) that exculpatory DNA test results from the

complainant’s fingernail scrapings would exonerate him. Thus, Brooks does not

explain how he was prejudiced by Smith’s performance.

      Because Brooks has not shown that Smith’s actions prejudiced the outcome

of his motion for DNA testing, he fails to satisfy the second prong of Strickland.

Accordingly, we hold that even if Brooks could raise an ineffective assistance claim

in his post-conviction proceeding, he has failed to establish that he received

ineffective assistance. See Bell, 90 S.W.3d at 307 (finding no ineffective assistance

of counsel in Chapter 64 proceeding, noting that “the record does not show that the

alleged errors had any impact on the court’s ruling, nor does it show that the claimed

‘missing’ evidence existed or even what evidence appellant wished counsel to

introduce”); see also Williams v. State, No. 01-04-00772-CR, 2005 WL 678873, at

*5 (Tex. App.—Houston [1st Dist.] March 24, 2005, pet. ref’d) (not designated for

publication) (finding insufficient evidence to establish by a preponderance of

evidence that counsel’s representation in post-conviction Chapter 64 proceeding was

deficient); Eubanks v. State, 113 S.W.3d 562, 566–67 (Tex. App.—Dallas 2003, no

pet.) (concluding that even if defendant could bring an ineffective assistance of

counsel claim related to his post-conviction motion for DNA testing and assuming

counsel performed deficiently, evidence did not establish defendant was prejudiced).



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      Accordingly, we overrule Brooks’s second issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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