                                                                                          ACCEPTED
                                                                                     12-14-00319-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                                 2/2/2015 1:00:03 PM
                                                                                        CATHY LUSK
                                                                                              CLERK

                              JOHN D. REEVES
                             ATTORNEY AT LAW
                                                                     FILED IN
                                                              12th COURT OF APPEALS
                       1007 Grant Ave•Lufkin, Texas 75901          TYLER, TEXAS
              (936)   632-1609 telephone • (936) 632-1640 facsimile
                                                               2/2/2015 1:00:03 PM
                          Email: tessabellus@yahoo.com             CATHY S. LUSK
                                                                       Clerk



February 2, 2015

12 th Court of Appeals
Attn: Cathy S. Lusk, Clerk
1517 West Front Street, Suite 354
Tyler, Texas 75702


Re:   Case Number                        12-14-00319-CR
      Trial Court Case Number            CR 22090-AA

Style: Demetric Lewis Alfred
           v.
       The State of Texas

RE:   Appellant’s Brief –Post Conviction DNA Testing

Dear Madam,

      Following please find for filing Appellant’s Brief.

      Thank you for your courtesies.

Sincerely,

/S/ John D. Reeves

John D. Reeves
E file cc. April Ayers-Perez, Asst. DA, Angelina County, P.O. Box 908, Lufkin,
Texas 75901
_________________________________________________________________

                          12-14-00319-CR
 _______________________________________________________________

                   IN THE COURT OF APPEALS
             FOR THE TWELFTH JUDICIAL DISTRICT
                          TYLER, TEXAS
   ____________________________________________________________

                       Demetric Lewis Alfred
                                V.
                         The State of Texas
  ______________________________________________________________

            APPEAL FROM THE 159th DISTRICT COURT
                OF ANGELINA COUNTY, TEXAS
                    Cause No. CR-22090-AA

                      BRIEF OF APPELLANT
                    DEMETRIC LEWIS ALFRED
 ________________________________________________________________

                                  Respectfully, Submitted:
                                  /S/ John D. Reeves
                                  JOHN D. REEVES
                                  Attorney at Law
                                  1007 Grant Ave.
                                   Lufkin, Texas 75901
                                  Phone: (936) 632-1609
                                  Fax: (936) 632-1640
                                  Email: tessabellus@yahoo.com
                                  ATTORNEY FOR APPELLANT




ORAL ARGUMENT NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Parties:
Appellant in Trial Court:
Demetric Lewis Alfred
TDCJ# 01065183
Stiles Unit
3060 FM 3514
Beaumont, Texas 77705

Appellee in Trial Court:
The State of Texas

Trial and Appellate Counsel:
Appellant:
JOHN D. REEVES                              Trial Stephen C. Taylor
Attorney at Law                                   Attorney at Law
1007 Grant Ave                                    P.O. Box 293
Lufkin, Texas 75901                               Conroe, Texas 77305
Phone: (936) 632-1609                              Phone: 800 223-8308
Fax: (936) 632-1640                                SBOT: 19723380
SBOT # 16723000


Appellee:
April Ayers-Perez                           Trial Art Bauereiss
Asst. Angelina County District Atty.             Angelina County District Atty.
P.O. Box 908                                      P.O. Box 908
Lufkin, Texas 75901                               Lufkin, Texas 75901
Phone: 936-632-5090                               Phone: 936/ 632-5090
SBOT# 24090975                                    SBOT# 01921800




                                       ii
                                       TABLE OF CONTENTS
                                                                                                  Page:


IDENTITY OF PARTIES AND COUNSEL…………………………………….ii

TABLE OF CONTENTS……………………………………………………....... iii

INDEX OF AUTHORITIES……………………………………………..………iv

STATEMENT OF THE CASE…………………………………………….…..... 1

STATEMENT OF JURISDICTION…………………………………………..…3

ISSUE PRESENTED..............................................................................................3

STATEMENT OF FACTS ……………………………………………………….3

SUMMARY OF THE ARGUMENT …..…………………………………...........4

ARGUMENT……………………………………………………………………..5

CONCLUSION AND PRAYER……………………………………………….. 10

CERTIFICATE OF COMPLIANCE…………………………………………… 11

CERTIFICATE OF SERVICE…………………………………………………..11




                                                      iii.
                      INDEX OF AUTHORITIES


                                                                Page:




Texas Cases
Blacklock v. State, 235 S.W. 3d 231 (Tex. Crim. App. 2007) ………………….9

Routier v. State, 273 S.W 3d 241 (Tex. Crim. App. 2008) ………………….….8

Smith v. State 165 S.W.3d 361, 364 (Tex. Crim. App. 2005) ………………….10




RULES AND OTHER AUTHORITIES

Tex. Code. Crim. Pro. Ann. Chpt. 64 (2012) …………………….…5,6,7,8,10




                                  iv.
   _____________________________________________________________



                           12-14-00319-CR
  _______________________________________________________________


                        IN THE COURT OF APPEALS

                FOR THE TWELFTH JUDICIAL DISTRICT

                                TYLER, TEXAS

 ________________________________________________________________

                             Demetric Lewis Alfred

                                        v.

                                The State of Texas

                 APPEAL FROM THE 159th DISTRICT COURT

                       OF ANGELINA COUNTY, TEXAS

                            Cause No. CR-22090-AA

                           BRIEF OF APPELLANT

                        DEMETRIC LEWIS ALFRED



TO THE HONORABLE COURT OF APPEALS;

                         STATEMENT OF THE CASE

      Appellant originally pled guilty to the offense of Capital Murder on October

15, 2001. Appellant was sentenced to life in the Texas Department of Criminal

Justice- Institution Division. (Supp. CR Vol. 1, p. 6, 14-15) On March 27, 2013 the
appellant requested the appointment of Counsel to assist in obtaining an Order for

Post-Conviction DNA testing pursuant to Tex. Code. Crim. App. Ann., art. 64

(Vernon Supp. 2012)       (Supp. CR p. 12)        After a review of Appellants

“Memorandum Regarding Applicant’s Request for Post-Conviction DNA Testing”

filed on September 9th, 2014 the trial court on September 12, 2014, denied granting

appellant’s request. (Supp. CR. Vol. 1, p. 21-33) Appellant filed a pro se notice of

appeal on October 23, 2014 and claimed indigency. (Supp. CR Vol. 1, p. 34-42)

Subsequently, this court entered an Order on December 14, 2011, ordering the trial

court to conduct a hearing and to determine whether: (1) Appellant is indigent and

entitled to the appointment of counsel on appeal ; (2) Appellant has sufficient

funds to retain counsel; or (3) Appellant desires to represent himself on appeal.

(Supp. CR p.13-14) The trial court conducted a hearing on December 12th, 2014

and determined the appellant wished to pursue an appeal, was indigent, and wished

to have appointed counsel on appeal. (RR Vol. 1 p. 1-4) On December 12th, 2014

the trial court made “Findings of Fact Regarding Docketing Statement” and

appointed John D. Reeves to represent appellant. (Supp. CR p. 15-17) A Docketing

Statement was filed by the appellant Pro Se and received by this court on

December 8th, 2014.



                                            2.
                           STATEMENT OF JURISDICTION


Pursuant to this Court’s order and the trial court findings this court has jurisdiction.

Trial Court certification was performed by a hearing, finding of facts and an order

signed by the trial court on December 12th, 2014 which gave the appellant the right

to appeal the trial court’s denial of his request for Post-Conviction DNA testing.

(Supp. CR Vol. 1, p. 15-17)

                                ISSUE PRESENTED

   1. The trial court erred in denying appellants motion for post-conviction
      DNA testing.



                             STATEMENT OF FACTS

      Appellant originally pled guilty to the offense of Capital Murder on October

15, 2001. Appellant was sentenced to life in the Texas Department of Criminal

Justice- Institution Division. (Supp. CR Vol. 1, p. 6, 14-15) On March 27, 2013 the

appellant requested the appointment of Counsel to assist in obtaining an Order for

Post-Conviction DNA testing pursuant to Tex. Code. Crim. App. Ann., art. 64

(Vernon Supp. 2012)         (Supp. CR p. 12)         After a review of Appellants

“Memorandum Regarding Applicant’s Request for Post-Conviction DNA Testing”

filed on September 9th, 2014 the trial court on September 12, 2014, denied granting


                                              3.
appellant’s request. (Supp. CR. Vol. 1, p. 21-33) Trial counsel’s memorandum is

incorporates the history of the items of evidence seized by law enforcement which

were available at trial. (Supp. CR. Vol. 1. p. 24-27) This listing includes a hammer

and a jacket. (Supp. CR. Vol. 1 p. 24) In addition, the memorandum lists the items

which were submitted to the Southwestern Institute of Forensic Sciences and the

results. (Supp. CR. Vol. 1, p. 26,-30) This includes the hammer and the jacket.

The testing results show item 10 which is the hammer found a “presumptive test

for blood as positive. The blood detected upon item 14, the jacket, was not

conclusive for being human blood. (Supp. CR Vol. 1 p. 30)            Trial counsels

memorandum to the trial court concluded that appellant did not have a right to post

conviction DNA testing because appellant cannot show “by a preponderance of the

evidence that he would not have been convicted had any exculpatory results

generated by the proposed testing been available at the time of his trial. “ (Supp.

CR Vol. 1 p. 31) The trial court agreed with the finding suggested in trial counsels

memorandum and denied post conviction DNA testing. (Supp. CR Vol. 1 p. 33)


                      SUMMARY OF THE ARGUMENT

      Appellant argues that the trial erred in denying his motion for post

conviction DNA testing pursuant to Tex. Code. Crim. Pro. Ann. Art. 64. He

specifically requests testing for a jacket and a hammer. He argues these two items


                                            4.
by a preponderance of the evidence could show exculpatory results exonerating

him. The victim died as a result of blows to the head having occurred due to an

object that “was perfectly round half- circle.” The description of the fracture to the

victim’s skull is consistent with the use of a hammer. (Supp. CR Vol. 1 p. 23) The

item is in existence, was tested and had a presumptive test for blood. (Supp. CR

Vol. 1 p. 23-30) Secondly, the jacket is preserved was tested and was inconclusive

for the presence of human blood. (Supp. CR. Vol. 1, p. 30) Each of these items

could exculpate the appellant.


                                      ARGUMENT

        Appellant argues that the evidence he requests to be tested is a jacket and

hammer identified as submission items 10 (hammer) and 14 ( jacket) which was

denied by the trial court.

Tex. Code. Crim. Pro. Ann. (2012) CHPT. 64

        Art. 64.01. MOTION. (a) In this section, "biological material":
              (1) means an item that is in possession of the state and that contains
blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily
fluids, or other identifiable biological evidence that may be suitable for forensic
DNA testing;
        (a-1) A convicted person may submit to the convicting court a motion for
forensic DNA testing of evidence containing biological material. The motion must
be accompanied by an affidavit, sworn to by the convicted person, containing
statements of fact in support of the motion.

                                             5.
         (b) The motion may request forensic DNA testing only of evidence
described by Subsection (a-1) 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:

               (2) 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.

         Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court may
order forensic DNA testing under this chapter only if:
         (1) the court finds that:
         (A) the evidence:
         (i) still exists and is in a condition making DNA testing possible; and
         (ii) 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; and
         (B) identity was or is an issue in the case; and
         (2) the convicted person establishes by a preponderance of the evidence
that:
         (A) the person would not have been convicted if exculpatory results had
been obtained through DNA testing; and
         (B) the request for the proposed DNA testing is not made to unreasonably
delay the execution of sentence or administration of justice.
         (b) A convicted person who pleaded guilty or nolo contendere or, whether
before or after conviction, made a confession or similar admission in the case may
submit a motion under this chapter, and the convicting court is prohibited from
finding that identity was not an issue in the case solely on the basis of that plea,
confession, or admission, as applicable.
         (c) If the convicting court finds in the affirmative the issues listed in
Subsection (a)(1) and the convicted person meets the requirements of Subsection
(a)(2), the court shall order that the requested forensic DNA testing be conducted.


     Appellant is complaining of two items which are a jacket and a hammer. A

search of Appellants residence yielded a pair of “tennis shoes” and a “jacket with

                                             6.
dried blood spots.” The stains on the tennis shoes and jacket tested positive for

blood. A search of the vacant lot behind Appellant’s residence yielded a “silver in

color hammer with black rubber grip.” (Supp. CR Vol. 1, p. 24)

       The jacket was submission item14 and the hammer submission item10

which were presented to the Southwestern Institute of Forensic Sciences

Laboratory. (Supp. Vol. 1, CR p. 26) As of September 8th, 2014 the two items are

still in the custody of the Lufkin Police Department as submission items 10 and 14.

The two items that the appellant desires testing are as shown evidence which was

secured in relation the offense. The indictment alleges that appellant “caused the

death of Theory Green, by striking Theory Green in the head with an object

unknown to the Grand Jury, while in the course of committing or attempting to

commit Robbery. (Supp. CR Vol. 1, p. 23) The autopsy of Theory Green indicated

that Green received at least fourteen (14) blows to the head; that the blows were on

the left side of the head; and, that there was a fracture at the base of the skull that

was “perfectly round half-circle fracture.” (Supp. CR Vol. 1 p. 23) Appellant

asserts he has met the statute (Tex. Code. Crim. Proc. Ann., art. 64.01 (b) wherein

the two items were secured in relation to the offense and are the basis of the

challenged conviction and were in possession of the State during the trial of the

offense, although the items were sent for testing appellant asks that the two items

                                             7.
be subjected to testing with newer testing techniques and believes that he will

receive more accurate and probative results than the previous testing.             A

presumptive test for blood was positive on submission items 10 and 14. However,

it could not be determined whether the blood on Evidence Submission Item 14 was

of human origin. (Supp. CR Vol. 1, p. 23) Appellant argues that a determination

of item ten (the hammer) would be conclusive and not probative as to whether the

hammer was used in causing the death of Mr. Green. Additionally, appellant

asserts the submission of the jacket which was last tested over 10 years ago would

conclusively show whether the victim’s blood was placed on the jacket as a result

of his head being struck repeatedly by what corresponds to the hammer and the

autopsy report. The appellant alternatively as least requests that the jacket be

retested to determine the origin of the blood which was inconclusive. In the

instance of the jacket appellant argues he has met Tex. Code. Crim. Ann. 64.03 (1)

the prior testing shows there was the “existence of biological material” in regard to

the jacket and the hammer. (Routier v. State, 273 S.W 3d 241 (Tex. Crim. App.

2008) Appellants argument is that the blood results on the hammer did not show a

match to his blood nor the jacket. He believes the identification of the DNA could

lead to a different suspect or provide exculpatory results had the two items been

further tested for matching pursuant to Art. 64.035.


                                            8.
                 UNIDENTIFIED DNA PROFILES. If an analyzed
         sample meets the applicable requirements of state or federal
         submission policies, on completion of the testing under Article
         64.03, the convicting court shall order any unidentified DNA
         profile to be compared with the DNA profiles in:
                        (1) the DNA database established by the Federal
         Bureau of Investigation; and
                        (2)    the DNA database maintained by the
         Department of Public Safety under Subchapter G, Chapter 411,
         Government Code.

As such appellant argues he has met the statutory requirements pursuant to

Blacklock v. State, 235 S.W. 3d 231, 232 (Tex. Crim. App. 2007)

      Trial counsel states in his memorandum “the mere assertion or a general

claim that the existence of biological material is probable fails to satisfy

Applicant’s burden. The Court of Criminal Appeals has explicitly {said} that

Applicant must prove biological material exists and that it is not merely probable.

“(Supp. CR Vol. 1 p. 30) However, counsel also states a presumptive test for blood

was positive on Evidence items (10) hammer, and (14) jacket. The appellant

argues that if testing is ordered pursuant to article 63.03 the results could exclude

him of using the hammer to bash the victims head and show someone else’s

presence in regard to the jacket. Blacklock v. State, supra. Additionally, appellant

argues, that pursuant to 64.03 (b) A convicted person who pleaded guilty or nolo

contendere or, whether before or after conviction, made a confession or similar

                                            9.
admission in the case may submit a motion under this chapter, and the convicting

court is prohibited from finding that identity was not an issue in the case solely on

the basis of that plea, confession, or admission, as applicable.

        Lastly, appellant argues this matter should be as the court held in Smith v.

State 165 S.W.3d 361, 364-65 (Tex. Crim. App. 2005). In Smith, the court held

Smith was entitled to DNA testing because he showed that a reasonable probability

exists--at least a 51% chance--that such testing would establish his innocence if the

results proved to be favorable. On discretionary review, the court determined that

the court of appeals erred, reversed its decision, and remanded the case to the trial

court to order DNA testing. Smith, supra, at 364. Appellant argues if his DNA is

not on the hammer or the jacket then the results would be exculpatory just as in

Smith where if the seminal fluid was tested and not found to be Smith’s it would

be exculpatory.

                                         PRAYER

      Appellant, Demetric Lewis Alfred asks that the trial court’s denial of his

motion for post-conviction testing be overruled and the ruling be reversed and the

trial court ordered to have the hammer and jacket tested pursuant to Tex. Code


Crim. Proc. Ann. Art. 64.035. Further, appellant requests this Honorable Court to

                                             10.
grant such other and further relief to which Appellant is justly and equitably

entitled.

                                               Respectfully considered,

                                               /S/ John D. Reeves
                                               JOHN D. REEVES
                                               Attorney at law
                                               1007 Grant
                                               Lufkin, Texas 75901
                                               Phone: (936) 632-1609
                                               Fax: (936) 632-1640
                                               SBOT # 16723000
                                               Email: tessabellus@yahoo.com
                                               ATTORNEY FOR APPELLANT

                      CERTIFICATE OF COMPLIANCE

I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of

the rule provisions that do not provide counting contains     words.

                                               /S/ John D. Reeves
                                               JOHN D. REEVES

                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Appellant’s

Brief on this 2nd, day of February, 2015 has been forwarded to the State’s

Counsel, April Ayers-Perez, Assistant District Attorney of Angelina County, by E

filing service at aperez@angelinacounty.net.

                                            /S/ John D. Reeves
                                            JOHN D. REEVES
                                           11.
