                                                                                               ACCEPTED
                                                                                          06-14-00199-CR
                                                                                SIXTH COURT OF APPEALS
                                                                                     TEXARKANA, TEXAS
                                                                                     1/15/2015 6:48:18 PM
                          No. 06-14-00119-CR                                              DEBBIE AUTREY
                      Trial Court No. 10F-0084-005                                                 CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                  1/16/2015 2:52:00 PM
Steven Wayne Morgan,                                                 DEBBIE   AUTREY
                                                                            Appellant
                                                                          Clerk


v.

The State of Texas,                                                             State
                  Appealed from the 5th Judicial District Court
                             Bowie County, Texas




                      BRIEF FOR THE STATE
                  The State Does Not Request Oral Argument

                                            Respectfully submitted:

                                            Jerry D. Rochelle
                                            Criminal District Attorney
                                            Bowie County, Texas
                                            601 Main Street
                                            Texarkana, Texas 75501
                                    By:     Samantha J. Oglesby
                                            Assistant Criminal District Attorney
                                            Bowie County, Texas
                                            Texas Bar No. 24070362

                                            Attorneys for the State
                             In The Court of Appeals
                      For the Sixth Supreme Judicial District
                               At Texarkana, Texas

Steven Wayne Morgan,                        §
           Appellant                        §
                                            §                  No. 06-14-00199-CR
v.                                          §
                                            §
The State of Texas,                         §                BRIEF FOR THE STATE
              State                         §
                                            §


                                 Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment as

required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate Procedure:

     1. Defendant and Pro Se Appellant:

        Steven Wayne Morgan

     2. Attorney for Appellant at trial:

        Derric McFarland
        Texas Bar No. 24048646
        P.O. Box 1048
        Texarkana, Texas 75504

     3. Appellee

        State of Texas

     4. Attorney for the State of Texas on appeal:

        Samantha J. Oglesby
        Assistant Criminal District Attorney
        Bowie County District Attorney’s Office
        Texas Bar No. 24070362

                                                i
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas at trial:

   Kristian Young
   Texas Bar No. 24027635
   210 North Stateline Avenue, Suite 502
   Texarkana, Arkansas 71854

6. Presiding Judge at trial:

   The Honorable Ralph K. Burgess
   District Court Judge
   5th Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                          ii
                                                   Table of Contents

Identity of the Parties and Counsel ....................................................................................i-ii

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

Index of Authorities ......................................................................................................... iv-v

Statement of the Case .......................................................................................................... 1

Reply to Point of Error ........................................................................................................ 2

Summary of the Argument .................................................................................................. 3

Argument .......................................................................................................................... 4-8

                    Reply to Point of Error Number One ......................................................... 4-8
                    The trial court did not err by denying Appellant’s request for additional
                    DNA collection and analysis because Appellant failed to meet the statutory
                    requirements of Chapter 64 of the Code of Criminal Procedure.

Prayer for Relief .................................................................................................................. 9

Certificate of Compliance .................................................................................................. 10

Certificate of Service ......................................................................................................... 11




                                                                  iii
                                            Index of Authorities

Cases

Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) ..................................................... 5, 8
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) ............................................. 8
Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002) ................................................... 6
Holberg v. State, 425 S.W.3d 282 (Tex. Crim. App. 2014) ................................................ 7
Kutzner v. State, 75 S.W.3d 427 (Tex. Crim. App. 2002)................................................... 7
Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ....................................................... 4
State v. Swearingen, 424 S.w.3d 32 (Tex. Crim. App. 2014) ............................................. 6

Constitutions/Statutes/Rules

Tex. Code Crim. Pro. Art. 64.01 ..................................................................................... 5, 7
Tex. Code Crim. Pro. Art. 64.03 .................................................................................. 5, 7-8




                                                           iv
                                Statement of the Case

       Steven Wayne Morgan, hereinafter referred to as “Appellant,” was convicted by a

jury of the felony offense of Aggravated Sexual Assault of a Disabled Individual in the

5th Judicial District Court of Bowie County, Texas, the Honorable Ralph K. Burgess

presiding.

       The jury assessed Appellant’s punishment at confinement for seventy-five years in

the Institutional Division of the Texas Department of Criminal Justice, and the Judge

sentenced Appellant accordingly.

       Appellant then perfected appeal to this Honorable Court. This Court affirmed

Appellant’s conviction in Morgan v. State, 365 S.W.3d 706 (Tex. App. – Texarkana

2012, no pet.).   A Petition for Discretionary Review was not filed. On December 21,

2012, Appellant filed an Application for Writ of Habeas Corpus which was subsequently

denied without written order by this Court.

       Appellant has since filed two requests for post-conviction DNA testing in the 5th

Judicial District Court of Bowie County, Texas. He now appeals the order of the trial

court denying Appellant’s First and Second Motions for DNA Testing of Evidence

Containing Biological Material in a single point of error.




                                              1
                              Reply to Point of Error

                       REPLY TO POINT OF ERROR NUMBER ONE:

The trial court did not err by denying Appellant’s requests for additional DNA collection
and analysis because Appellant failed to meet the statutory requirements of Chapter 64 of
the Code of Criminal Procedure.




                                           2
                            Summary of the Argument

                       REPLY TO POINT OF ERROR NUMBER ONE:

      The trial court did not err by denying Appellant’s requests for additional
      DNA collection and analysis because Appellant failed to meet the statutory
      requirements of Chapter 64 of the Code of Criminal Procedure.

      The trial court did not abuse its discretion by denying Appellant’s first and second

requests for post-conviction DNA collection and analysis. Appellant’s first request failed

to include a supporting affidavit as required by Chapter 64 of the Texas Code of Criminal

Procedure. The second request failed to specify the evidence to be tested and failed to

establish the presence of biological material on evidence that was not previously

subjected to DNA analysis. Additionally, Appellant’s request would require additional

evidence collection and consideration of new information not presented at trial in

violation of Chapter 64. Finally, the motions and supporting affidavits fail to show by a

preponderance of the evidence that exculpatory DNA results would have prevented

Appellant’s conviction.   Therefore, the trial court did not err by denying Appellant’s

First and Second Motions for DNA Testing of Evidence Containing Biological Material.




                                            3
                                                 Argument

                            Reply to Point of Error Number One

        The trial court did not err by denying Appellant’s requests for additional
        DNA collection and analysis because Appellant failed to meet the statutory
        requirements of Chapter 64 of the Code of Criminal Procedure.

                                       Argument and Authorities

A. Standard of Review

        When reviewing a trial court’s decision on a motion for forensic testing, an

appellate court employs a bifurcated standard of review.1                Almost total deference is

given to a trial court’s determination of historical fact issues and application-of-law-to-

fact issues that turn on credibility and demeanor.2 However, other application-of-law-to-

fact issues which do not turn on credibility and demeanor are reviewed de novo.3              The

ultimate question of whether a reasonable probability exists that exculpatory DNA tests

would prove innocence is an application-of-law-to-fact issue that does not turn on

credibility and demeanor and is therefore reviewed de novo.

B. Application of Law to Facts

        Appellant urges in a single issue that the trial court erred by denying his post-

conviction motions for DNA testing.                     However, Appellant has failed to meet the

requirements of Chapter 64 of the Texas Code of Criminal Procedure.

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

move for post-conviction forensic DNA testing of evidence containing biological

1
  Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
2
  Id.
3
  Id.

                                                         4
material.4     The convicting court may order forensic DNA testing only if the statutory

preconditions of Chapter 64 are met.5 An appellant must submit a motion requesting

testing of evidence that was secured in relation to the offense comprising the underlying

conviction and was in the possession of the state during the trial but either was not

previously tested or, although previously tested, can be tested with newer techniques

which can provide more accurate and probative results.6       A convicting court may order

testing if the evidence in question “(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 it has not

been substituted, tampered with, replaced, or altered in any material respect; and identity

was or is an issue in the case.”7 Furthermore, the appellant has the burden of showing 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…”8

        Appellant’s first request for post-conviction DNA testing did not include a

supporting affidavit as required by Chapter 64.9 (C.R. p. 84 – 88). Given that Appellant

did not meet the statutory requirements of Chapter 64 in his first motion for DNA testing,

the trial court did not err in denying Appellant’s request. On July 21, 2014, Appellant

filed his second motion for post-conviction DNA testing along with two supporting



4
  Tex. Code Crim. Pro. Art. 64.01(a-1).
5
  Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
6
  Tex. Code Crim. Pro. Art. 64.01(b).
7
  Id., art. 64.03(a)(1).
8
  Id., art. 64.03(a)(2).
9
  See Tex. Code Crim. Pro. Art. 64.01(a-1).

                                                         5
affidavits. (C.R. p. 98 – 100). However, Appellant’s second motion also fails to meet the

statutory requirements of Chapter 64.

           First, Appellant has not indicated which items of evidence he seeks to have tested

or that said items contain biological material. In order to meet the requirements of

Chapter 64, the appellant “must prove that biological material exists and not that it is

merely probable.”10 In Dinkins v. State, the Court of Criminal appeals considered an

appellant’s failure to specify the items to be tested in finding that the trial court did not err

by denying a request for post-conviction DNA testing.11 Here, Appellant’s motion seeks

retesting of “all” biological material collected in relation to this cause. (C.R. p. 92 – 93).

Appellant has failed specify the items to be tested or to prove the existence of biological

material collected in this case other than that which was previously subjected to DNA

analysis.

           Second, Appellant’s affidavit makes conclusory statements that he believes “to the

best of his knowledge” that “evidence” obtained in relation to this cause contains

biological material; is in the possession of the state; and that it was not subjected to

“adequate DNA testing.” (C.R. p. 98). The evidence collected from the victim’s sexual

assault examination was previously tested for the presence of biological material. (R.R.

Vol. II, p. 56, 58). Once biological material was located on the victim’s penile swab, it

was compared to the DNA samples given by both Appellant and the victim. (R.R. Vol. II,

p. 62-64).        Appellant has not adequately shown that the “evidence” was either not


10
     State v. Swearingen, 424 S.w.3d 32, 38 (Tex. Crim. App. 2014) (emphasis in original).
11
     Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002).

                                                           6
previously tested or that new testing techniques are now available that would provide a

reasonable likelihood of more accurate and probative results that the previous tests.12 As

such, the trial court did not err.

        Next, a reviewing court may not consider post-trial evidence when deciding

whether or not an appellant has met his burden of showing by a preponderance of the

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

through DNA testing.13          Appellant submitted an affidavit of Joyce Hall with his second

motion for DNA testing. (C.R. p. 99-100). In his brief and motions for DNA testing,

Appellant argues that all biological material related to this cause should be retested based

on new information provided in the affidavit of Joyce Hall. (C.R. p. 94-95). Because the

information contained in Hall’s affidavit was not presented at trial, neither the convicting

court nor this Court may consider it in deciding whether Appellant has made an adequate

showing that exculpatory DNA results would have prevented his conviction.

Additionally, new evidence may not be collected and tested pursuant to Chapter 64. Only

evidence “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” may be tested.14

Appellant’s request would require the collection of new evidence, a DNA sample from

Joyce Hall. The trial court was correct in denying Appellant’s request.




12
   See Tex. Code Crim. Pro. Art. 64.01(b).
13
   Holberg v. State, 425 S.W.3d 282, 285 (Tex. Crim. App. 2014)(citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex.
Crim. App. 2002) (“The language of Article 64.03(a)(2) and its legislative history…do not contemplate
consideration of appellant’s ‘new’ post-trial information.”))
14
   Tex. Code Crim. Pro. Art. 64.01(b).

                                                        7
           Finally, Appellant has failed to meet his burden of showing by a preponderance of

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

obtained through DNA testing.”15 A convicted person must show that he, more likely than

not, would not have been convicted with exculpatory results – results “excluding [the

convicted person] as the donor of this material…”16 Appellant asserts in his motion and

supporting affidavits that previous testing revealed an unknown individual’s DNA on the

penile swab from the victim. (C.R. p. 94-95, 98-99). However, the record reveals that

Appellant’s DNA cannot be excluded as a contributor to the DNA found on the swab.

(R.R. Vol. II, p. 64; State’s Exhibit 3). Contrary to Appellant’s argument, a comparison of

the DNA from the penile swab to the DNA of Joyce Hall would not exonerate Appellant.

“The presence of another person’s DNA at the crime scene will not, without more,

constitute affirmative evidence of [A]pellant’s innocence.”17 Because Appellant has failed

prove by a preponderance of the evidence that exculpatory results would have prevented

his conviction, the trial court did not error in denying his request for post-conviction DNA

testing.

           For these reasons, Appellant’s sole point of error should be overruled.




15
   Tex. Code Crim. Pro. Art. 64.03(a)(2)(A).
16
   Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App. 2007).
17
   Bell, 90 S.W.3d at 306.

                                                        8
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and competent

evidence sufficient to justify the conviction and punishment assessed in this case and no

reversible error appearing in the record of the trial of the case, the State of Texas

respectfully prays that this Honorable Court affirm the judgment and sentence of the trial

court below.



                                                Respectfully Submitted:

                                                Jerry D. Rochelle
                                                Criminal District Attorney
                                                Bowie County, Texas
                                                601 Main Street
                                                Texarkana, Texas 75501
                                                Phone: (903) 735-4800
                                                Fax: (903) 735-4819



                                                /s/ Samantha J. Oglesby
                                         By:    Samantha J. Oglesby
                                                Assistant Criminal District Attorney
                                                Bowie County, Texas
                                                601 Main Street
                                                Texarkana, Texas 75501
                                                Phone: (903) 735-4800
                                                Fax: (903) 735-4819

                                                Attorneys for the State




                                            9
                              Certificate of Compliance

       I, Samantha J. Oglesby, hereby certify that, pursuant to Rule 9.4 of the Texas

Rules of Appellate Procedure, the State’s Brief contains 1,598 words. This excludes the

caption, identity of parties and counsel, table of contents, index of authorities, statement

of the case, certificate of compliance, proof of service, and signature.




                                                  /s/ Samantha J. Oglesby
                                                  Samantha J. Oglesby




                                             10
                              Certificate of Service

      I, Samantha J. Oglesby, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Steven Wayne Morgan, Pro Se Appellant, on this the

16th day of January, 2015.



                                               /s/ Samantha J. Oglesby
                                               Samantha J. Oglesby




                                          11
