Opinion
AP-77 102
03-30-2022
RUBEN GUTIERREZ, Appellant, v. THE STATE OF TEXAS
On Appeal from Order Dismissing Motion for DNA Testing In Cause No. 1998-CR-1391-A in the 107th District Court Cameron County
Yeary, J., delivered the opinion for a unanimous Court.
This is a direct appeal from Appellant's third motion for post-conviction DNA testing brought under Article 64.05 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 64.05. Because Appellant was convicted of capital murder and sentenced to death, his appeal is to this Court. See id. ("[I]f the convicted person was convicted in a capital case and was sentenced to death, the appeal is a direct appeal to the court of criminal appeals."); Gutierrez v. State, No. AP-73, 462 (Tex. Crim. App. Jan. 16, 2002) (not designated for publication). Appellant's current motion seeks to test the same biological materials he sought to have tested in his first two motions, both of which the convicting court denied, and both of which denials this Court subsequently affirmed. Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011); Gutierrez v. State, No. AP-77, 089, 2020 WL 918669 (Tex. Crim. App. Feb. 26, 2020) (not designated for publication).
I. Background
Appellant planned and, with two accomplices, committed the robbery and murder of eighty-five-year-old Escolastica Harrison, the owner of a mobile-home park in Brownsville. After his conviction was affirmed on direct appeal, he filed a motion for DNA testing, seeking to have various items of biological evidence tested. Appellant was attempting to show that Harrison's nephew, Avel Cuellar, was the true perpetrator of the offense. This Court denied his appeal, at least in part on the ground that favorable test results would not have established by a preponderance of the evidence that he would not have been convicted. Gutierrez, 337 S.W.3d at 900-02.
For a more detailed narrative of the case against Appellant, see this Court's published opinion rejecting his first motion for DNA testing. Gutierrez, 337 S.W.3d at 886-88. See also Ex parte Gutierrez, 307 S.W.3d 318 (Tex. Crim. App. 2010) (dismissing Appellant's appeal of the denial of appointed counsel for his first DNA motion as premature).
In 2019, Appellant filed a second motion for DNA testing in the convicting court, seeking to have the same biological evidence tested. Gutierrez, 2020 WL 918669, at *5. This Court affirmed the convicting court's denial of this second motion, once again on the basis that favorable results would not have established by a preponderance that Appellant would not have been convicted. Id. at *6-8. In both of his DNA appeals, Appellant argued that he should be able to have the biological evidence tested, not just to show he would not have been convicted, but also to show that he was "innocent of the death penalty"; and that to fail to recognize this as a valid basis for DNA testing under the statute would deprive him of due process. In both opinions, this Court rejected this argument as inconsistent with the language of our DNA testing statute. Gutierrez, 337 S.W.3d at 901; Gutierrez, 2020 WL 918669, at *8-9.
Since this Court affirmed the denial of Appellant's second motion for DNA testing, however, Appellant filed a civil rights action in a federal district court under 42 U.S.C. Section 1983. In that action, he argued that Texas' statutory criteria for determining when such testing is authorized is constitutionally deficient. For reasons we need not fully elaborate upon here, the federal district court agreed with Appellant that procedural due process requires that DNA testing be made available. Gutierrez v. Saenz, No. 1:19-CV-185, 2021 WL 5915452, at *14-15 (S.D. Tex. Mar. 23, 2021). That court opined that testing must be permitted not just for those for whom the results might demonstrate that they would not have been convicted of capital murder, but also for those for whom post-conviction DNA testing might establish that they were "innocent of the death penalty" as well, consistent with Article 11.071, Section 5(a)(3) of the Code of Criminal Procedure. See Gutierrez v. Saenz, 2021 WL 5915452, at *15 (explaining in its opinion that "giving a defendant the right to a successive habeas petition for innocence of the death penalty under Texas Code of Criminal Procedure Article 11.071 § 5(a)(3) but then denying him DNA testing under Texas Code of Criminal Procedure Article 64.03(a)(2)(A) unless he can demonstrate innocence of the crime is fundamentally unfair and offends procedural due process"); Tex. Code Crim. Proc. art. 11.071 § 5(a)(3) (providing that: "(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: . . . (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071, 37.0711, or 37.072").
The United States Supreme Court has held that inmates may vindicate their procedural due process rights, as they arise in the context of requests for post-conviction DNA testing under state statutes, by way of federal litigation under 42 U.S.C. § 1983. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011).
Only procedural due process claims are available to inmates contesting the validity of state post-conviction DNA testing statutes under 42 U.S.C. § 1983; they may not bring substantive due process claims. Skinner, 562 U.S. at 535 (citing District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72-74 (2009)).
In affirming the denial of Appellant's previous DNA-testing motions, this Court held that he was unable to show that he would not have been convicted even with favorable test results. Ex parte Gutierrez, 337 S.W.3d at 900-01; Gutierrez v. State, 2020 WL 918669, at *6-8. Appellant has now argued in his third motion for DNA-testing-based on the federal district court's opinion-that he must be allowed to test the biological materials because favorable test results would establish that he is innocent of the death penalty. Those test results, he contends, would permit him to pursue a subsequent post-conviction writ application under Article 11.071, Section 5(a)(3); and the failure to permit him to pursue such testing would violate procedural due process, just as the federal district court concluded.
In response to Appellant's third motion for DNA-testing, the State filed a motion styled a "Plea to the Jurisdiction," in which it asked the convicting court to dismiss Appellant's third DNA motion on the ground that the convicting court lacked jurisdiction to adjudicate it. Because the federal district court declared Article 64.03 to be unconstitutional, the State contended, there was no longer any legitimate statutory authority for DNA testing at all, and so there was no legal basis for Appellant to claim entitlement to such testing, and no "special" jurisdiction in the convicting court to permit it. See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (plurality opinion) ("When a conviction has been affirmed on appeal and the mandate has issued, general jurisdiction is not restored in the trial court. The trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out and to perform other functions specified by statute, such as finding facts in a habeas corpus setting, or as in this case determining entitlement to DNA testing."). The convicting court granted the State's motion and dismissed Appellant's motion for DNA testing "for want of jurisdiction." This appeal followed.
II. Analysis
Whatever jurisdiction the convicting court has to entertain Appellant's motion for post-conviction DNA testing must be derived from Chapter 64 of the Texas Code of Criminal Procedure. Id. Under Article 64.03(a)(2)(A), specifically, a convicting court may only order DNA testing for a defendant who "would not have been convicted if exculpatory results had been obtained through DNA testing[.]" Tex. Code Crim. Proc. art. 64.03(a)(2)(A) (emphasis added); see Gutierrez, 337 S.W.3d at 901 ("The statute does not authorize testing when exculpatory testing results might affect only the punishment or sentence that [the defendant] received."). A federal district court judge has now opined, however, that Article 64.03(a)(2)(A) is constitutionally deficient because it fails to also authorize a convicting court to order DNA testing for a defendant for whom testing might establish that they were "innocent of the death penalty" as well. Gutierrez v. Saenz, 2021 WL 5915452, at *15. And on the basis of that opinion, the state trial court in this case dismissed for want of jurisdiction Appellant's motion for DNA testing. But we do not believe the federal district court's opinion with respect to the constitutionality of Article 64.03(a)(2)(A) divests the convicting court in this case of its statutory jurisdiction to determine whether Appellant is entitled to the DNA testing he seeks.
It is worth noting that nothing about the federal district court's opinion in Gutierrez v. Saenz purported, in any way, to invalidate what the statute already legitimately authorizes. It is also worth observing that the federal district court's decision in that case is not final, and that it is currently pending on appeal to the United States Court of Appeals for the Fifth Circuit. Gutierrez v. Saenz, No. 21-70009 (5th Cir. Dec. 13, 2021). But our resolution of this case turns first and foremost on the principle that state courts are not bound by decisions of the lower federal courts. See Johnson v. Williams, 568 U.S. 289, 305 (2013) ("[T]he views of the federal courts of appeals do not bind [a state court] when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law."); Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) ("While [state] courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court."); Bryan A. Garner et al., The Law of Judicial Precedent 691 (2016) ("[L]ower federal courts don't have appellate jurisdiction over state courts.").
It is said that "[a] statute is rendered completely inoperative if it is declared to be facially unconstitutional." 16A Am. Jur. 2d Constitutional Law § 194 (2020), at 71. Not so with a statute that is declared merely unconstitutional "as applied." See id. § 180, at 48 ("Unlike a statute that is held unconstitutional on its face, which cannot be enforced in any future circumstances, a statute that is held unconstitutional as applied can be enforced in those future circumstances where it is not unconstitutional."). Here, no provision of Chapter 64 was held to operate unconstitutionally, except to the extent that Section 64.03(a)(2)(A) would limit post-conviction DNA testing to persons who "would not have been convicted" with favorable testing results, to the exclusion of those who, though convicted, would not have been assessed a death sentence.
The Supremacy Clause of the United States Constitution explains that the constitution, laws, and treaties of the United States are the “supreme law of the land, ” and state court judges are bound by them notwithstanding anything to the contrary that may be found in the constitution or laws of any state. U.S. CONST. ART. VI, Cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). But that does not mean that state courts are bound by lower federal court decisions. This Court has described “both state and federal courts” as being “of parallel importance, ” even in when addressing questions involving the interpretation of federal constitutional law. Pruett v. State, 463 S.W.2d 191, 194 (Tex. Crim. App. 1970). “[Our state courts] are not required to follow [even] Fifth Circuit federal constitutional interpretations.” Reynolds v. State, 4 S.W.3d 19, 20 n.17 (Tex. Crim. App. 1999) (citing to Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”)); see also DeFreece v. State, 848 S.W.2d 150, 155 (Tex. Crim. App. 1993) (in which this Court refused to follow the Fifth Circuit's holding with respect to a federal constitutional issue not yet resolved by the United States Supreme Court). However, both state and federal courts “answer to the Supreme Court on direct review.” Pruett, 463 S.W.2d at 194.
The trial court in this case was not divested of its jurisdiction to entertain and resolve Appellant's third motion for post-conviction DNA testing by the federal district court's opinion. For that reason, the trial court erred to dismiss Appellant's motion "for want of jurisdiction." We express no opinion at this juncture with respect to an appropriate disposition of the merits of Appellant's motion. We conclude only that the convicting court erred to grant the State's "Plea to the Jurisdiction" (of Appellant's motion filed under Chapter 64 of the Texas Code of Criminal Procedure) outright.
III. Conclusion
Accordingly, we vacate the convicting court's order and remand the cause to that court for further proceedings not inconsistent with this opinion.
Appellant urges this Court to simply render judgment in his favor on the merits of his motion for post-conviction DNA testing, in light of the federal district court's ruling in the 42 U.S.C. § 1983 lawsuit in Gutierrez v. Saenz, Appellant's Brief at 10, 47. But, of course, in our capacity as a direct appeals court under Article 64.05, we ourselves lack jurisdiction to do anything other than to review the actions of the convicting court. See Varga v. State, 309 S.W.3d 92, 93 (Tex. Crim. App. 2010) ("[W]e have held appellate jurisdiction to review a trial court's order relating to postconviction DNA testing is limited to the appellate jurisdiction conferred by the DNA testing statute."). The convicting court has yet to rule on the merits.