                                                                                          ACCEPTED
                                                                                     12-14-00319-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                               3/16/2015 11:09:29 PM
                                                                                        CATHY LUSK
                                                                                              CLERK

                        Cause No. 12-14-00319-CR

                                                                    RECEIVED IN
                                                              12th COURT OF APPEALS
                                                                   TYLER, TEXAS
                     In the Court of Appeals for the
                                                              3/16/2015 11:09:29 PM
                  Twelfth Judicial District at Tyler, Texas        CATHY S. LUSK
                                                                       Clerk



                          Demetric Lewis Alfred,
                               Appellant
                                                                  3-16-2015
                                     v.

                              State of Texas,
                                 Appellee



           On Appeal from Cause No. CR-22090-AA in the 159th
             Judicial District Court of Angelina County, Texas



                               State’s Brief



                                          April Ayers-Perez
                                          Assistant District Attorney
                                          Angelina County D.A.’s Office
                                          P.O. Box 908
                                          Lufkin, Texas 75902
                                          (936) 632-5090 phone
                                          (936) 637-2818 fax
                                          State Bar No. 24090975
                                          aperez@angelinacounty.net

Oral Argument Not Requested
                         Identity of Parties and Counsel

Demetric Lewis Alfred, Appellant
TDCJ #01065183
Stiles Unit
3060 FM 3514
Beaumont, Texas 77705

Stephen C. Taylor
Attorney for Appellant (trial)
P.O. Box 293
Conroe, Texas 77305
SBN: 19723380

John Reeves
Attorney for Appellant (appeal)
1007 Grant Ave
Lufkin, Texas 75901
SBN: 16723000

Art Bauereiss
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 01921800

April Ayers-Perez
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975

                                       ii
                                                 Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Statement Regarding Oral Argument........................................................................ v

Issue Presented .......................................................................................................... v

Statement of Facts ..................................................................................................... 1

Summary of the Argument........................................................................................ 1

Argument .................................................................................................................. 1

         Reply Issue #1: The hammer and jacket do not show, by a
         preponderance of the evidence, exculpatory results exonerating the
         appellant.......................................................................................................... 1

                   Applicable law ...................................................................................... 2

                   No preponderance of the evidence ....................................................... 2

Prayer ........................................................................................................................ 5

Certificate of Compliance ......................................................................................... 6

Certificate of Service ................................................................................................ 6




                                                               iii
                                            Index of Authorities

Cases                                                                                                            Page

Dinkins v. State, 84 S.W. 3d 639 (Tex. Crim. App. 2002) ....................................... 3

Kutzner v. State 75 S.W. 3d 427 (Tex. Crim. App. 2002) ........................................ 3

Smith v. State, 165 S.W. 3d 361 (Tex. Crim. App. 2005) ......................................... 3

Thompson v. State, 95 S.W. 3d 469 (Tex. App. – Houston [1st Dist.] 2002) ............ 3

Rules

Tex. R. App. P. 9.4(i)(1) ........................................................................................... 6

Tex. R. App. P. 39.1................................................................................................. vi

Statutes

Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp. 2012) .............................. 2

Tex. Code Crim. Proc. Ann. art. 64.03(a-b) (Vernon Supp. 2012)........................... 2

Tex. Code Crim. Proc. Ann. art. 64.035 (Vernon Supp. 2012) ................................ 5




                                                          iv
                      Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                  Issue Presented

      Reply Issue #1: The hammer and jacket do not show, by a preponderance

of the evidence, exculpatory results exonerating the appellant.




                                         v
                                                                   Statement of Facts

               The appellee, State of Texas, agrees with the statement of facts presented in

the appellant’s brief and would defer to those.1

                                                                Summary of the Argument

                              The appellant, Demetric Lewis Alfred, has not proven by a

preponderance of the evidence that the jacket and hammer requesting to be tested

could show exculpatory results exonerating him. The appellant desires testing of

the jacket and hammer not because a preponderance of the evidence exists, but

because the appellant is hoping that he can create a preponderance of the evidence

based on the results of the DNA test. Further, there is an enormous amount of

evidence still in the Lufkin Police Department property room, including two other

hammers and a multitude of other clothing, and additionally the appellant pled

guilty (although this cannot be the sole reason for denying DNA testing it can be

considered with other evidence). The appellant has not proven by a prepondernace

of the evidence that the hammer and jacket in question show exculatory results that

would exonerate the appellant.

                                                                       Argument

               Reply Issue #1: The hammer and jacket do not show, by a preponderance

of the evidence, exculpatory results exonerating the appellant.
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1
    Brief of the Appellant at 3-4.
                                                                           1
                                                                 Applicable law

               Post-conviction DNA testing is limited to the evidence that was secured in

relation to the offense that is the basis of the challenged conviction and was in the

possession of the state during the trial of the offense, but was not previously

subjected to DNA test; or, although previously subjected to DNA testing, can be

subjected to testing with newer testing techniques that provide a reasonable

likelihood of results that are more accurate and probative than the results of the

previous test.2 A convicting court may order forensic DNA testing only if the

court finds that the evidence still exists and is in a condition making DNA testing

possible, has been subjected to a chain of custody sufficient to establish that it has

not been substituted, tampered with, replaced, or altered in any material respect;

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, and the request for the proposed DNA testing is not made to

unreasonably delay the execution of sentence or administration of justice.3

                                                         No preponderance of the evidence

               The only element at issue is whether a preponderance of the evidence (51%

or greater) exists that a reasonable probability exists that the convicted person


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2
    TEX. CODE CRIM. PROC. ANN., art. 64.01(b) (Vernon Supp. 2012).
3
    TEX. CODE CRIM. PROC. ANN., art. 64.03(a-b) (Vernon Supp. 2012).
                                                                        2
would not have been prosecuted or convicted if exculpatory results had been

obtained through DNA testing. In Dinkins v. State the appellant wanted a pair of

jeans tested to show that exculpatory evidence could exist.4 More specifically, the

appellant “wanted testing first, and then, if the results were favorable, he would

show that he would not have been prosecuted or convicted if the testing had been

done prior to trial.”5 Further, in Thompson v. State the appellant was convicted of

aggravated assault with a deadly weapon, the deadly weapon being a box cutter.6

Although the box cutter was deemed to have blood on it by the State, because the

box cutter was not the only piece of evidence the State had it was not enough to

conclude that there was a preponderance of the evidence that the exculpatory DNA

would prove appellant’s innocence.7 “At best, exculpatory DNA tests on the bux

cutter would ‘merely muddy the waters’.”8

               The appellant, Alfred, wants the jacket and hammer tested because, “the two

items [the jacket and hammer] be subjected to testing with newer techniques and

believes that he will receive more accurate and probative results than the previous

testing.”9 This is analogous to the argument made in Dinkins, that was rejected by

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4
  Dinkins v. State, 84 S.W.3d 639, 642-43 (Tex. Crim. App. 2002).
5
  Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005) citing Dinkins, 84 S.W.3d
at 639.
6
  Thompson v. State, 95 S.W.3d 469, 471-72 (Tex. App. – Houston [1st Dist.] 2002).
7
  Id. at 472.
8
  Id. citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002).
9
  Brief of Appellant at 8.
                                                                3
the Court of Criminal Appeals, because the appellant wanted to test the items first

in order to then prove the preponderance of the evidence standard.10 Likewise,

Alfred wants to test the jacket and hammer in order to prove that exculpatory

evidence might exist and therefore a preponderance of the evidence might exist.

Appellant also contends that, “if his DNA is not on the hammer or the jacket then

the results would be exculpatory…”.11 However, the standard is that the appellant

must prove that a preponderance of the evidence exists that a reasonable

probability exists that the convicted person would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA testing. This

standard must be met prior to the DNA testing, not as a result of the DNA testing.

               In Thompson despite there being blood found on the box cutter which was

the purported deadly weapon used, the Court of Appeals found that there was other

evidence in which the appellant was convicted, thus blood on the box cutter did not

satisfy the preponderance of the evidence that a reasonable probability exists that

the convicted person would not have been prosecuted or convicted in exculpatory

results had been obtained through DNA testing.12 Likewise, in the present case




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10
   Dinkins, 84 S.W.3d at 643.
11
   Brief of Appellant at 10.
12
   Thompson, 95 S.W.3d at 472.
                                                                4
there was an abundance of evidence in addition to the jacket and hammer.13 There

were also two other hammers, in addition to the one appellant is requesting to have

tested, still in evidence in the Lufkin Police Department property room.14 There is

certainly more evidence than a jacket and hammer to tie the appellant to the

murder that he pled guilty to.

                                                                Prayer

               The State of Texas prays that this Court of Appeals affirm the ruling of the

trial court denying the motion of the appellant for post-conviction DNA testing of

the hammer and jacket pursuant to TEX. CODE. CRIM. PROC. ANN. Art. 64.035.




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13
   I C.R. at 24-27 (indicating there were up to 54 items in evidence, including tennis
shoes, towels, victims clothing, ball cap, and at least two other hammers in addition to
the one appellant is requesting to have tested).
14
   I C.R. at 25.
                                                                  5
                                               Respectfully Submitted,

                                                /s/ April Ayers-Perez
                                               Assistant District Attorney
                                               Angelina County D.A.’s Office
                                               P.O. Box 908
                                               Lufkin, Texas 75902
                                               (936) 632-5090 phone
                                               (936) 637-2818 fax
                                               State Bar No. 24090975
                                               ATTORNEY FOR THE
                                               STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 2,431 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                               /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on March 16, 2015, a true and correct copy of the above

document has been forwarded to John Reeves, 1007 Grant Street, Lufkin, TX

75901, by electronic service through efile.txcourts.gov.


                                               /s/ April Ayers-Perez



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