      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00681-CR



                                      In re Robert Lee Brown


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NO. D-1-DC-00-002368, HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING



                              MEMORANDUM OPINION


                  Robert Lee Brown appeals the trial court’s denial of his request to conduct DNA

testing under Texas Code of Criminal Procedure chapter 64.1 We will affirm trial the court’s order.


                                         BACKGROUND

                  This Court previously affirmed Brown’s conviction for aggravated robbery. Brown

v. State, 64 S.W.3d 94 (Tex. App.—Austin 2001, no pet.). This Court stated in its opinion that

Brown and others agreed to rob a man and that, during the robbery, they beat the victim with guns.

The physical evidence admitted included blood-spattered pistol grips, a shotgun with blood on it, and

shotgun shells.


       1
          This appeal was triggered by Brown filing a notice of appeal challenging the denial of his
request for post-conviction DNA testing. He uses some language consistent with an application
for habeas corpus relief. We have no jurisdiction over the original post-conviction habeas process
because such jurisdiction is vested in the Court of Criminal Appeals. See Padieu v. Court of Appeals
of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013); see also Tex. Code Crim.
Proc. art. 11.07. To the extent that this is an application for post-felony conviction habeas corpus
relief, we dismiss it for want of jurisdiction. We will concern ourselves only with arguments that
are directed at any error in the trial court’s denial of the request for post-conviction DNA testing.
               In his direct appeal, this Court overruled Brown’s challenge to the trial court’s denial

of his motion to suppress the victim’s in-court identification of Brown. The identification process

began with the arrest of a woman involved in the attack. Brown, 64 S.W.3d at 98. The victim knew

the woman because she had provided him sexual favors weekly for four years in exchange for money

and crack cocaine. Id. at 97. The victim allowed the woman into his home, and three men followed

and shortly thereafter attacked him. Id. The attack occurred over several minutes in close quarters

in a well-lit room. Id. at 101. Based on the victim’s call, police arrested the woman who said

she knew one of the men was named Robert because they had been “seeing each other for a few

months.” Id. at 98. Though she did not know Robert’s last name, she gave police Robert’s brother’s

name, and with that information the police found Brown. She positively identified Brown when

police showed her a picture of him. Id. Police then put that photo into an array that they showed to

the victim, who positively identified Brown. Id.

               This Court found that the photo array used out of court was not impermissibly

suggestive. Id. at 101. The victim testified that he stood face-to-face with the assailants as he

repeatedly defended himself and that he focused on Brown’s uncovered face during part of the

attack. Id. This Court acknowledged that the victim’s description of Brown was general but noted

that the victim reportedly promptly identified Brown as one of his assailants and consistently

identified him both inside and outside of court. Id.

               A jury found Brown guilty of aggravated robbery, and the trial court assessed

punishment of thirty-two years in prison.




                                                  2
                In denying this request for DNA testing, the trial court found that evidence at trial

supported the conviction, including two witnesses testifying that Brown was the perpetrator. The

trial court found that DNA test results would not provide affirmative evidence of Brown’s innocence

even if the sample tested contained the profile of an additional person or did not contain Brown’s

DNA. The trial court held that Brown failed to prove by a preponderance of the evidence that he

would not have been convicted if DNA testing produced exculpatory results. The trial court also

declined to appoint counsel for him, concluding that he had failed to satisfy the requirements of

Texas Code of Criminal Procedure article 64.01(c).


                                    STANDARD OF REVIEW

                A convicted person may request that the convicting court order forensic DNA testing

of evidence containing biological material that was in the State’s possession during the trial if it was

not previously tested or, although it was previously tested, newer techniques provide a reasonable

likelihood of yielding more accurate or probative results. Tex. Code Crim. Proc. art. 64.01(b). The

court may order testing of such material if the convicted person shows by a preponderance of the

evidence that he would not have been convicted if DNA testing had produced exculpatory evidence.

Id. art. 64.03(a)(2); see also Ex parte Gutierrez, 337 S.W.3d 883, 889-92 (Tex. Crim. App. 2011).

The convicting court shall appoint counsel for the convicted person if the person informs the court

that the person wishes to submit a motion under this chapter, the court finds reasonable grounds

for a motion to be filed, and the court determines that the person is indigent. Tex. Code Crim. Proc.

art. 64.01(c); see also Gutierrez, 337 S.W.3d at 892.




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               In reviewing the trial court’s ruling, this Court defers almost totally to the trial court’s

resolution of questions of historical fact and questions of mixed fact and law that turn on witness

credibility and demeanor, but we consider de novo decisions on pure questions of law. Routier

v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008).


                                            DISCUSSION

               Brown asserted that identity was an issue in the trial and that previous tests of the

blood on those items were “not absolutely conclusive.” He contends that new tests could definitely

exclude him. But he does not provide persuasive argument or evidence supporting that position.

               Brown has not demonstrated error in the trial court’s reasoning that he has not shown

how DNA test results would exonerate him or tend to affect a jury’s view of the evidence. He was

identified as being present by two eyewitnesses, one of whom testified she had a sexual relationship

with Brown before the attack and one of whom was the victim of the attack and said he focused

his attention on Brown. Testimony placed at least two other assailants at the scene. Brown has not

explained why the DNA of any person involved in the attack would necessarily be part of the

samples he wishes to have tested. The In re Morton opinion from this Court shows how an applicant

can successfully explain the role that DNA testing of evidence could play in exculpating the

applicant or potentially affecting the jury’s view of the evidence. See 326 S.W.3d 634, 643 (Tex.

App.—Austin 2010, no pet.); see also Gutierrez, 337 S.W.3d at 892. Brown has failed to explain

how the absence of his DNA or the presence of others’ DNA on the items would prove exculpatory.

               We also find no error in the trial court’s denial of the motion for appointment of

counsel. Implicit in the court’s denial is a finding that Brown failed to show reasonable grounds for

                                                   4
his motion for DNA testing. See Tex. Code Crim. Proc. art. 64.01(c). Even assuming that the results

of the test favored Brown, he has not shown how that would change the probability of his conviction

in light of the record as a whole. See Gutierrez, 337 S.W.3d at 891-82.

               We affirm the trial court’s denial of Brown’s request for DNA testing.




                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: July 10, 2015

Do Not Publish




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