                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00149-CR


RANDALL EUGENE BROOKS                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 0386824D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Randall Eugene Brooks appeals the trial court’s order denying

his Chapter 64 motion for DNA testing related to his 1991 conviction for

aggravated sexual assault. In two points, Brooks argues that the trial court erred




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       See Tex. R. App. P. 47.4.
by not holding an evidentiary hearing related to his Chapter 64 motion and by

denying his request for DNA testing. We will affirm.

                                 II. BACKGROUND

      This court previously affirmed Brooks’s conviction in 1992.       Brooks v.

State, 833 S.W.2d 302, 303 (Tex. App.—Fort Worth 1992, pet. ref’d). In our

1992 opinion, we described how on September 24, 1989, Brooks subjected

“Jane” to a two-hour brutal sexual assault during which he beat, raped,

sodomized, and robbed her. Id. He then left her bound with torn sheets and her

hands behind her back. From there, Jane successfully rolled toward the phone,

knocked the receiver off the hook, and used her chin to get an operator, who, in

turn, connected her with a 9-1-1 operator. Id. at 304.

      After binding Jane with the torn sheets, Brooks stole Jane’s car, pistol,

black leather belt, and $94 in cash.      Id. at 303.    Brooks was later found in

Oklahoma City driving Jane’s car with her pistol found under the front seat. Id.

Brooks is currently serving a life sentence in prison. Id.

      In 2005, Brooks sent the Tarrant County Criminal District Attorney’s Office

an affidavit wherein he described himself as a “born again Christian” and

explained that he could no longer live “the lie that [he had] lived for 16 years.”

Brooks went on to explain that he and Jane had a pre-existing relationship that

began as workout partners but later evolved into sexual intimacy.          Brooks

averred that on the night Jane was allegedly raped, and after she had declined to

advance him $2500 as startup money for a “business venture”; declined to assist


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him in purchasing chemicals from Oklahoma City for the manufacturing of

methamphetamine; and declined his embrace, he “spontaneously” went into a

deranged rage and sexually assaulted her. Brooks described himself as “vile,”

“repulsive,” and a “sick savage.”

      In this affidavit, Brooks also stated that after tying Jane to her bed, he took

her a glass of water and her heart medication. He said from there, he took

Jane’s car and the glass of remaining water and finished off the water as he

drove to Oklahoma. Brooks explained that this was the only glass he touched in

Jane’s house that night and that evidence of his fingerprints found on a different

glass in Jane’s house, introduced at trial, could not have been his and must have

been manufactured by the police.      Brooks admitted to taking Jane’s pistol and

car but alleged in his affidavit that he intended to return these items once he

finished his methamphetamine-related business in Oklahoma.

      On January 8, 2014, Brooks filed his Chapter 64 motion. In his motion,

Brooks sought DNA testing of semen found during Jane’s sexual-assault exam.

According to Brooks, testing of this DNA would prove that he was not Jane’s

assailant.   In his motion, Brooks stated that in 2007, the Innocence Project

accepted him as a client and filed a previous motion for DNA testing but later

withdrew representation and the motion because of the affidavit he sent to the

district attorney in 2005. Brooks stated that at the time he had contacted the

Innocence Project, “he was not [being] truthful” and that he was operating under




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an orchestrated “pact” between himself and Jane, ostensibly to keep their “affair”

from being discovered.

      In its response to Brooks’s motion, the State illuminated record evidence

from Brooks’s sexual-assault trial.    Specifically, the State pointed out that

evidence adduced at trial showed that Brooks broke into Jane’s house,

threatened to kill her, and forced her to remove her clothing. From there, Brooks

raped and beat Jane. He then tied Jane’s hands and feet, and he tied her to her

bedframe using torn sheets. Shortly thereafter, Brooks took her gun, $94 in

cash, “a silver Concho belt worth five thousand dollars,” and her vehicle and

drove to Oklahoma.

      Later that day, Oklahoma law enforcement apprehended Brooks. He was

found driving Jane’s car, her gun was in his possession, and police discovered

evidence that he had sold her “Concho belt” earlier that day. Other evidence the

State pointed to included Brooks’s attempts to discard the gun during Oklahoma

police officers’ pursuit of him and evidence of Brooks’s fingerprints found on a

glass in Jane’s home from the night of the assault. The State then filed its

proposed findings of facts and conclusions of law.

      Without holding a hearing, the trial court denied Brooks’s motion and

adopted the State’s findings of fact and conclusions of law. Later, having found

Brooks indigent, the trial court appointed appellate counsel.        This appeal

followed.




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                                   III. DISCUSSION

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

may submit to the convicting court a motion for forensic DNA testing of evidence

containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a-1). A trial

court must order DNA testing only if the statutory requirements of article 64.03

are met, that is, only if (1) the evidence still exists and identity was or is an issue

in the case and (2) 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. Id. at 64.03; Bell v. State, 90 S.W.3d

301, 306 (Tex. Crim. App. 2002). A preponderance of the evidence is measured

by whether there is a reasonable probability of a different outcome had the DNA

test results been available at the time of trial. Whitfield v. State, 430 S.W.3d 405,

422 (Tex. Crim. App. 2014). Furthermore, if identity was not or is not still an

issue in the case, then the trial court cannot order DNA testing. Reger v. State,

222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 552

U.S. 1117 (2008). Identity must be in question without considering the possible

results of DNA testing. Bell, 90 S.W.3d at 308.

      Generally, in reviewing Chapter 64 rulings, this court gives almost total

deference to the court’s findings of historical fact and application-of-law-to-fact

issues that turn on witness credibility and demeanor, but we consider de novo all

other application-of-law-to-fact questions. Routier v. State, 273 S.W.3d 241, 246

(Tex. Crim. App. 2008). But when the trial court bases its determination only on


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the trial record and affidavit of the appellant, as in this case, the trial court is in no

better position than we are and we will review all issues de novo. Smith v. State,

165 S.W.3d 361, 363 (Tex. Crim. App. 2005).

      A.     No Chapter 64 Hearing

      In his first point, Brooks argues that the trial court erred by not holding an

evidentiary hearing on his Chapter 64 motion. The State counters that Brooks

was not entitled to a hearing. We agree with the State.

      The court of criminal appeals and this court have both held that a trial court

is not required to conduct a hearing to resolve whether a defendant is entitled to

DNA testing under article 64.03. See Ex parte Gutierrez, 337 S.W.3d 883, 893

(Tex. Crim. App. 2011) (“Article 64.03 does not require any evidentiary hearing

before the trial judge decides whether a convicted person is entitled to DNA

testing.”); see also Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App.), cert.

denied, 543 U.S. 864 (2004); Jones v. State, 161 S.W.3d 685, 689–90 (Tex.

App.—Fort Worth 2005, pet. ref’d). Brooks does not present an argument as to

why this court should diverge from this precedent, and we see no reason to do

so. We overrule his first point.

      B.     The Trial Court’s Denial of Chapter 64 Motion

      In his second point, Brooks argues that he and Jane “did not have sex” on

the night she was assaulted, that therefore identity is still an issue in this case,

and that the trial court erred by not ordering DNA testing. Specifically, it seems

that Brooks is arguing that results of Jane’s sexual assault exam would reveal


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that someone other than himself had intercourse with Jane the night she was

assaulted. We conclude that Brooks has failed to establish by a preponderance

of the evidence that he would not have been convicted if exculpatory results had

been obtained through the DNA testing he requested. See Bell, 90 S.W.3d at

308 (“Chapter 64 requires that identity ‘was or is’ an issue, not that future DNA

testing could raise the issue [that a third party was present]. Appellant confessed

to the murder. His identity was not at issue.”).

      Brooks’s 2005 admission, by way of affidavit, acknowledged that he was in

Jane’s house the night of the sexual assault. In his affidavit he also admitted to

acting out in a deranged rage and sexually assaulting Jane. He further admitted

that he tied Jane to her bed, took her car and gun, and drove to Oklahoma City.

These admissions are consistent with the evidence the State introduced at

Brooks’s initial trial and that it detailed in its response to Brooks’s Chapter 64

DNA motion.

      We hold that Brooks failed to establish in the trial court that there is a

reasonable probability of a different outcome of his initial trial had the DNA

testing he requested in his Chapter 64 motion been available at the time of trial.

See Ex parte Gutierrez, 337 S.W.3d at 902 (holding that trial court did not err by

denying request for DNA testing when the requested biological evidence would

not overcome the overwhelming evidence of defendant’s direct involvement in

murder). We overrule Brooks’s second point.




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                                IV. CONCLUSION

      Having overruled both of Brooks’s points on appeal, we affirm the trial

court’s order denying his request for DNA testing.



                                                     /s/ Bill Meier

                                                     BILL MEIER
                                                     JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 4, 2015




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