Opinion
NO. 01-17-00354-CR
05-31-2018
RANDALL GLEN LAWS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas
Trial Court Case No. 993419
MEMORANDUM OPINION
Appellant, Randall Glen Laws, appeals the trial court's order on his post-conviction forensic DNA testing. In his sole issue, appellant contends that the trial court erred in finding that he did not establish a reasonable probability that, had the results of the DNA testing been available at the time of his trial, he would not have been convicted.
See TEX. CODE CRIM. PROC. ANN. arts. 64.04-.05 (West 2018).
We affirm.
Background
In 2004, a jury found appellant guilty of the offense of murder and assessed his punishment at 99 years' confinement. This court affirmed appellant's conviction. See Laws v. State, No. 01-04-00847-CR, 2006 WL 241313 (Tex. App.—Houston [1st Dist.] Feb. 2, 2006, pet. ref'd) (mem. op., not designated for publication). The record in the underlying case shows as follows:
See TEX. PENAL CODE ANN. § 19.02 (West 2011).
As the State has requested, we take judicial notice of the appellate record in the underlying case. See Asberry v. State, 507 S.W.3d 227, 229 (Tex. Crim. App. 2016).
In 2002, after an investigation by the Harris County Sheriff's Office ("HCSO") "Cold-Case Squad," appellant was charged with murder for the 1987 death of the complainant, Lyle Sacry. At trial, the State introduced the testimony of the complainant's friend and co-worker, Alfred Patrick. Patrick testified that, in August 1987, he had agreed to care for the complainant's dog while the complainant was out of town. The complainant planned to leave on August 31, and, several times during the week preceding, Patrick had tried unsuccessfully to reach the complainant by telephone. On Friday, August 28, Patrick and his wife went to the complainant's mobile home trailer to go ahead and pick up the dog. Patrick noticed that the complainant's van was parked only halfway in the driveway and the porch light was off. After knocking on doors and windows and getting no response, he attempted to open a door and found them all locked. Patrick left a note on the door and left. After Patrick's continued attempts to reach the complainant were unsuccessful, he, on the morning of Sunday, August 30, returned to the complainant's house, where he saw that, although his note was still on the door, the complainant's van had been moved and the porch light was on. After again receiving no response to knocking on doors and windows, Patrick again attempted to open a door and found a sliding glass door unlocked. When he opened the door, however, he was met with a foul odor, which he, as a firefighter, recognized as that of "someone dead." He did not go in, and instead notified law enforcement. When he later entered the trailer house with an officer, they found the complainant dead near the front door and a "bloody baseball bat" near his body. Patrick testified that it looked as though the complainant had been beaten to death with the bat and had a gunshot wound to his forehead.
HCSO Sergeant S. Pierson testified that, at approximately 7:30 a.m. on Sunday, August 30, 1987, he accompanied Patrick into the complainant's trailer. Pierson noted that the complainant was lying on the floor by the front door and there was blood "spattered everywhere" on the walls, ceiling, and floors in the living room, kitchen, and hallway.
HCSO Deputy R. Phillips testified that, when he investigated the scene on Sunday, August 30, 1987, the complainant's body was in an "advanced state of decomposition." He noted that the scene did not look like a robbery because the "valuable stuff" was still there. Rather, it looked like someone had been searching for something or had set up the scene. Phillips learned through his investigations that the complainant, a security guard, had not been to work since his shift beginning at midnight on Wednesday, August 26, and ending at 8:00 a.m. on Thursday, August 27. Phillips testified that, while he was investigating the scene, three men and a woman pulled up in a vehicle towing a "U-Haul" trailer. The woman identified herself as the complainant's step-daughter, Kathy Seefong. The three men identified themselves as the complainant's step-son, Tim Seefong; Tim's friend, Glenn Shaw; and appellant. Phillips spoke with appellant, who stated that he was Kathy's boyfriend and was there to check on the complainant. Appellant stated that he had last seen the complainant during the preceding weekend.
HCSO Detective M. Parinello testified that, on Monday, August 31, 1987, he interviewed and took witness statements from Kathy, Tim, Shaw, and appellant at the sheriff's office. Parinello also took "elimination prints," or fingerprints, from each of them. During his interview, appellant stated that he had last seen the complainant the preceding weekend, on August 22, when he was at the complainant's house for approximately three hours to visit and watch some movies. Appellant stated that he may have been at the complainant's house on Wednesday, August 26, but he could not remember. Appellant voluntarily submitted blood samples and his shoes to Parinello.
Detective Parinello also interviewed the manager of the trailer park where the complainant lived, Andy DeLewis, and a neighbor, Heather McKeever. Each of them stated that, on Thursday, August 27, or Friday, August 28, they had seen, at the trailer park, a gold Chevrolet Citation, with a certain license plate number, a dent in the driver's door, a tassel hanging from the rear-view mirror, and large speaker boxes in the back window. Later, while investigating at the scene, Detective Parinello also saw "the car," which he described as a gold Chevrolet Citation hooked to a U-Haul trailer, parked in front of the complainant's trailer. Parinello took photographs of the car, which were admitted into evidence at trial. Appellant, who, along with Kathy, Tim, and Shaw, was loading property from the complainant's trailer house into the U-Haul, identified the gold Citation as his, but he denied that the gold car that DeLewis and McKeever had seen was his car.
DeLewis testified that on Thursday, August 27, 1987, he received a telephone call from a resident, McKeever, complaining about a "strange car," and he went to investigate. He described the car as a gold-colored Chevrolet with a graduation-type tassel hanging from the mirror. He noted that the gold color of the car was "unique," and it appeared to be a young person's car. The car was parked "close to a quarter of a mile, four hundred yards" from the complainant's trailer. DeLewis testified that the next time he saw the car was on Monday, August 31. The car, which was towing a U-Haul trailer, pulled into the park office. A young man and woman requested access to the complainant's mobile home in order to retrieve their personal belongings, and DeLewis went down and opened the complainant's door. DeLewis noted that he was with a Harris County investigator at the time, who then took photographs of the gold car. DeLewis identified the gold car in the photographs admitted at trial as the same car that he had seen at the trailer park on August 27 and again on August 31.
Shaw testified that, at the time of the murder, he was 19 years old and living in Clarksberg, West Virginia. Kathy was living there with her mother, Rita Sacry, who was getting a divorce from the complainant and had moved back to West Virginia. On an unspecified date in August 1987, Shaw accompanied Kathy, whom he was dating, and her brother Tim, who was living in Ohio, from West Virginia to Houston to retrieve some furniture from the complainant's house for Rita. After driving straight-through, Kathy, Tim, and Shaw arrived at the complainant's house at approximately 3:00 a.m. Kathy and Shaw knocked on the complainant's door while Tim waited in the car. When no one answered, Shaw found an unlocked door, entered the house with Kathy, and discovered the complainant deceased on the living room floor, near the front door. Shaw testified that the complainant appeared to have been beaten. Shaw noted that he was "scared to death" and thought that the perpetrator might still be in the house, and Kathy was screaming hysterically. Together, they ran back to the car and left. They checked into a motel, where Tim called Rita. Shaw testified that they did not call law enforcement because they were young and scared.
The next morning, Kathy, Tim, and Shaw went to appellant's house. Shaw noted that he had never before met appellant. On the way over, Kathy and Tim told Shaw that Kathy was appellant's girlfriend and told him not to say that he was dating her. At appellant's house, Shaw saw pictures of appellant with Kathy. The group decided to return to the complainant's mobile home and call law enforcement from there. When they arrived, however, officers were already at the scene.
After law enforcement officers interviewed Kathy, Tim, Shaw, and appellant at the scene and at a police station, the group returned to appellant's house, where they began drinking and "partying." Shaw testified that appellant admitted that he had killed the complainant. Appellant said that he and the complainant were friends and were "hanging out" watching television. After the complainant fell asleep, appellant began beating him with a bat. When the complainant awoke, a fight ensued, and, after the complainant refused to give up, appellant shot him with a small gun. Appellant stated that he killed the complainant because the complainant had molested one of Kathy's sisters. Appellant had a black eye, which was not apparent while his eye was open, and said that he threw the gun into a pond or lake. That night, Tim and Shaw stayed at a motel room, but Kathy stayed with appellant. The next day, Tim and Shaw returned to the complainant's house, loaded furniture into the U-Haul trailer, and drove back to West Virginia.
Mary Anzalone, a pathologist with the Harris County Medical Examiner's Officer, testified that the complainant died from a gunshot wound to his head and one to his back. The complainant also suffered multiple "full-thickness lacerations" to his head, which Anzalone described as "injur[ies] that result from a blunt impact where the skin actually tears" through the "entire scalp," exposing the skull. She testified that the injuries were consistent with having been inflicted by a bat.
James Peetz testified as part of an agreement with the State that a pending misdemeanor theft charge against him would be dismissed. Peetz testified that, while he was seventeen, he moved in with Kathy, Tim, and Rita. Rita was married to the complainant, but he only came around on weekends. Peetz noted that the complainant was generous with Rita and the family, and he "would do anything for them." However, Rita "didn't care about him" and used him for his money. In 1985, while Peetz was 18, he married Kathy, who was 15. They divorced in May 1987. Peetz testified that, during his two-year marriage to Kathy, she and Rita asked him 60 or 70 times to kill the complainant. Rita offered to pay Peetz $10,000 and, later, $20,000. Kathy said that Rita wanted the complainant dead in order to collect on insurance policies valued at over $200,000. They asked Peetz to shoot the complainant or to "mess up the car" so that he would "get in an accident or it would blow up." Although Peetz initially refused their requests, he later agreed. He drained the radiator of appellant's car, but the car "just broke down." Rita then asked Peetz to go to The Galleria, where the complainant was working as a security guard, and to kill him there because she would get more money from the insurance company. She gave Peetz gas money to get there. Peetz drove to The Galleria with a knife, intending to kill the complainant, but changed his mind. Kathy also told Peetz that the complainant had molested her and her sister, but Peetz believed that she was just trying to manipulate him into killing the complainant. Peetz was aware that Rita and Kathy had also asked other men to kill the complainant for them.
Robert Hales, a friend of Peetz, testified that, in 1987, Kathy had asked if he knew where she could get a firearm because she wanted to kill the complainant for insurance proceeds. Kathy told Hales that she would help him get $20,000 to finance a moving company if he would help her. Hales noted that Kathy, during a separation from Peetz, lived with appellant in Houston. During Hales's visits with them, Kathy twice asked Hales to help her obtain a firearm so that she could kill the complainant. Hales noted that appellant was present both times.
Coy Reaves also testified as part of an agreement with the State that a pending motor-vehicle theft charge against him would be dismissed. Reaves testified that, in September 2002, he shared a cell at the Harris County jail with appellant, who was in custody awaiting trial for the complainant's murder. Appellant spoke endlessly to Reaves, telling "the same story over and over and over again three or four times" over the course of several days. Appellant told Reaves that, in 1987, he killed the complainant at the request of Kathy, his then girlfriend, and her mother, Rita, in exchange for their promises to give him a portion of the insurance proceeds they received from policies valued at over $250,000. Appellant said that Kathy had told him that the complainant had molested her and her sister, but she was just trying to manipulate him into killing the complainant.
Reaves further testified that appellant obtained a nine-millimeter handgun from Kathy's brother in Ohio and an aluminum baseball bat. Appellant noted that, because they were in a trailer park, he thought the bat would be quieter than using the gun. Although Kathy had asked appellant what his plan was, he did not really have a plan. Rather, he was going to go over to the complainant's house and talk with him first. Appellant then drank some beer, took some acid, and drove to the complainant's trailer in his gold 1988 Chevrolet Citation. He parked the car around the corner from the complainant's trailer, so that nobody would see his car "in case he had to use the gun and it got loud."
Reaves further testified that appellant said that, after he had a couple of beers with the complainant, appellant asked the complainant whether he had molested Kathy's younger sister. This angered the complainant and resulted in his telling appellant to leave the trailer. Appellant left the trailer, went to his car, put on gloves, and got the aluminum bat. He reentered the trailer with the bat and beat the complainant. The complainant struggled and wrestled with appellant and ultimately took the bat from him. Appellant then shot the complainant twice, in the head and in the back. The complainant died, lying on his back, near the front door. After trying to clean up the trailer, appellant left the bat and went home. Reaves testified that he told appellant that his leaving the bat behind was "how they were going to convict him." According to Reaves, appellant replied, "No, because I had gloves on and ain't no fingerprints on the bat."
Appellant told Reaves that Kathy, Tim, and Shaw later appeared at his house and said that they knew that the complainant was dead because they had already been to his trailer. Appellant noted that he had a U-Haul trailer and that the group planned to return to the complainant's trailer the next day to clean it, but the police were already there. After giving a statement to the police, appellant moved to Florida. He complained that Kathy's mother had refused to pay him for killing the complainant, claiming that she had received only $50,000 because the complainant had switched the beneficiaries to his parents on the larger policy.
HCSO Detective H. Fikaris testified that his investigation into the proceeds of the insurance policies held by the complainant revealed that Rita had collected $50,728 on one policy and the complainant's father had collected $200,000 on another policy. Fikaris further testified that, as part of his procedures on the Cold-Case Squad, he sent the evidence in the case to a laboratory for DNA analysis, to apply newer technology to examining the evidence. He explained that, although none of the results of that analysis had linked appellant to the murder, it was not unusual for there not to be blood left at a scene by a perpetrator who was not injured during the commission of the offense.
HCSO Investigator P. Schroedter, an Automated Fingerprint Identification System administrator, testified that there were thirty items of evidence tagged from the scene, including the bat, two jewelry boxes found on the floor in the master bedroom, beer cans, and several items with red stains that appeared to be blood, including a mop, playing cards, a tennis shoe, a cardboard box, and a television set "connector." Schroedter testified that none of the fingerprints recovered from the scene matched those of appellant. He explained to the jury that although there was no physical evidence that he was aware of connecting appellant to the murder, this did not mean that appellant was not there.
After his conviction, appellant filed a motion for post-conviction DNA testing, pursuant to Texas Code of Criminal Procedure article 64.01. The trial court granted appellant's application and ordered the Texas Department of Public Safety Crime Laboratory ("DPS Crime Lab") to perform a forensic DNA analysis of the baseball bat, a mop head, a vacuum handle, two jewelry boxes, a pair of brown shoes, a single tennis shoe, a screwdriver, playing cards, pieces of cardboard boxes, two beer cans, a "connector" from a television set, a desktop, scrapings from a bathroom floor, forensic evidence taken from the complainant, and buccal swabs from appellant.
See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West 2018).
According to the trial court's findings of fact, the DPS Crime Lab analyzed thirty samples taken from the evidence. In nine of those samples, appellant was "excluded as a contributor" to the full or partial DNA profiles obtained. Specifically, appellant was excluded from the one sample taken from the mop head, two of the four samples taken from the bat, five of the seven samples taken from the single shoe, and one of the seven samples taken from the pieces of cardboard box. Nineteen samples yielded "no DNA profile" or "no interpretable DNA profile." Two of the samples showed mixtures of at least two contributors, with "insufficient data" for comparison. The trial court found that appellant did not establish a reasonable probability that, had the results of this forensic DNA testing been available during his trial, he would not have been convicted.
See id. art. 64.04.
DNA Testing Results
In his sole issue, appellant argues that the trial court erred in finding that he did not did not establish a reasonable probability that, had the results of the current forensic DNA testing been available during his trial, he would not have been convicted because "the fact that he is excluded as a contributor from all evidence from which a result could be obtained affirmatively casts doubt on the validity of his conviction." He asserts that he was convicted largely on the testimony of a co-defendant, Shaw, and a "jailhouse snitch," Reaves, both of whom "could not be truthful in their testimony as there was no physical evidence to support their claims." He asserts that "had the jury heard that he could not be included as a contributor to the usable forensic evidence," their determination of the credibility of Shaw and Reaves would have been affected.
A convicted person may move for forensic DNA testing of evidence containing biological material that was either not previously subjected to DNA testing or, if previously tested, could be subjected to newer testing techniques that "provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." TEX. CODE CRIM. PROC. ANN. art. 64.01(b) (West 2018). If such DNA testing is conducted, the convicting court, after examining the results, "shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted." Id. art. 64.04. The movant must establish by a preponderance of the evidence that, had the current post-conviction DNA test results been available at the time of trial, he would not have been convicted. See Asberry v. State, 507 S.W.3d 228, 228 (Tex. Crim. App. 2016); Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). Rather, Chapter 64 is simply a procedural vehicle for obtaining certain evidence "which might then be used in a state or federal habeas proceeding." Id.
We note that although it does not appear that the trial court held a hearing on the DNA testing results in this case, the record does not reflect that appellant complained in the trial court, and he does not raise an issue on appeal. Thus, error, if any, is waived. See TEX. R. APP. P. 33.1; see also Jones v. State, 161 S.W.3d 685, 690 (Tex. App.—Fort Worth 2005, pet. ref'd) (error in not holding article 64.04 hearing does not constitute constitutional error); Cravin v. State, 95 S.W.3d 506, 509-11 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (holding that post-conviction DNA testing proceedings are analogous to habeas corpus proceedings and constitute independent and collateral inquiry into validity of conviction).
We review a trial court's findings under article 64.04 under a bifurcated standard. See id.; Flores v. State, 491 S.W.3d 6, 10 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). We afford almost total deference to the trial court's determination of issues of historical fact and issues of application of law to fact that turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo other issues of application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses. Id. The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have caused the appellant to not be convicted "is an application-of-the-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo." See id. at 59. We review the entire record, that is, all of the evidence that was available to, and considered by, the trial court in making its ruling, including the testimony from the original trial. Asberry, 507 S.W.3d at 229; Frank v. State, 190 S.W.3d 136, 138 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) ("In reviewing the trial court's article 64.04 ruling de novo, we review the entire record to determine whether appellant established . . . that he would not have been convicted . . . .").
Here, as this Court previously noted in its opinion in the underlying case, "[t]he State's case did not rest exclusively on the testimony" of Shaw and Reaves. Laws, 2006 WL 241313, at *7. For example, DeLewis and McKeever each saw a gold Chevrolet Citation, with a certain license plate number, a dent in the driver's door, a tassel hanging from the rear-view mirror, and large speaker boxes in the back window, near the complainant's mobile home on August 27, the day that the complainant was last seen at work. On the morning of August 28, although the complainant's van was in his driveway, he did not respond when Patrick knocked on his doors and windows. On August 31, a young man and woman, driving the same gold car, returned with a U-Haul trailer and asked DeLewis for access to the complainant's house. Appellant admitted to Detective Parinello that the gold Citation was his. Appellant first represented that he had not seen the complainant since the weekend preceding the murder, then admitted that he might have been at the complainant's house on August 26, then denied that the gold car that DeLewis and McKeever saw on August 27 was his car. Further, Hales testified that, while Kathy was living with appellant, she and appellant had asked Hales to help them kill the complainant.
The record also shows that the jury heard Detective Fikaris testify that he previously sent the evidence in the case to a laboratory for DNA analysis and that none of the results of that analysis had linked appellant to the murder. Further, Investigator Schroedter testified that none of the fingerprints recovered from the scene matched those of appellant and that there was no physical evidence that he was aware of connecting appellant to the murder. Thus, the jury previously considered the credibility of Shaw and Reaves in light of there being no DNA evidence, or any other physical evidence at the scene, linking appellant to the murder. Moreover, the "absence of DNA or fingerprint evidence at trial does not render the other evidence insufficient to support the conviction." Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). "Texas law does not require such evidence to support a criminal conviction." Id.; see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (holding that circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt).
Again, of the thirty samples taken from the evidence, appellant was "excluded as a contributor" to the full or partial DNA profiles obtained in only nine of the samples. Specifically, appellant was excluded in two of the four samples taken from the bat, five of the seven samples taken from the white shoe, one of the seven samples taken from the cardboard box, and the sample from the mop. Nineteen samples yielded "no DNA profile" or "no interpretable DNA profile." Two of the samples showed mixtures of at least two contributors, and there was "insufficient data" for comparison. Because the test results do not establish whether appellant was or was not involved in the commission of the offense, the results do not "affirmatively cast doubt" on his conviction. See Ex parte Gutierrez, 337 S.W.3d at 892; see also Pegues v. State, 518 S.W.3d 529, 535 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (noting that when physical evidence is collected from common area and could have been left by anyone, DNA test results excluding movant as the source would not also exclude the movant as the assailant); Flores v. State, 491 S.W.3d 6, 10 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (concluding that DNA analysis results that merely excluded certain individuals from one part of pillowcase did not factually exclude defendant from having killed complainant); Baggett v. State, 110 S.W.3d 704, 708 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (holding that even if "inconclusive" DNA results had been found to supply exculpatory inference, such inference would not have outweighed other evidence of appellant's guilt).
After reviewing the trial court's findings and the record of appellant's trial, and after considering the probable impact that the current forensic DNA test results might have had, when combined with the incriminating evidence presented at trial, we hold that the trial court did not err in concluding that appellant did not establish by a preponderance of the evidence a reasonable probability that, had the results of the current forensic DNA testing been available during his trial, he would not have been convicted. See TEX. CODE CRIM. PROC. ANN. art. 64.04.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court. We deny appellant's pro se "Motion to Dismiss/Withdraw Counsel" and "Motion for Stay/Extension of Time to File Brief."
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown. Do not publish. TEX. R. APP. P. 47.2(b).