No. 10-05-00098-CR
Opinion delivered and filed August 30, 2006. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 1993-511-C. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs only in the Court's judgment affirming the trial court's denial of post-conviction DNA testing)
FELIPE REYNA, Justice.
James Pitts, Jr. contends in this appeal that the court erred by denying his motion for post-conviction DNA testing and by making a determination not based on the totality of the circumstances. We affirm.
BACKGROUND
In March 1992, Pitts and Richard Kussmaul met Leslie Murphy and Steve Neighbors at a store. The four stopped to pick up James Long, after which they met Mike Shelton at Kendra Dryden's house. Dryden was not home. While at the home, Kussmaul began harassing Murphy, who refused his advances. Kussmaul responded by assaulting and raping Murphy. He then shot and killed both Murphy and Neighbors. The State prosecuted Kussmaul for capital murder and prosecuted Pitts, Long, and Shelton for sexual assault. After providing several differing statements, Pitts pleaded guilty to sexual assault. As part of his agreement with the State, Pitts testified at Kussmaul's trial. Pitts testified that Long, Shelton, and he also sexually assaulted Murphy and aided in discarding the bodies. Pitts admitted that portions of his prior statements were untrue and that Kussmaul both frightened and intimidated him. The State recommended ten years probation, but the court sentenced Pitts to twenty years in the Texas Department of Criminal Justice, Institutional Division. Pitts accepted the sentence and waived appeal, but subsequently contacted the court to complain about the enhanced sentence. Pitts alleged that he suffers from mental disorders, participated in the offense only because held at gunpoint by Kussmaul, was promised ten years probation, and his plea and testimony resulted from police coercion and mistreatment. Pitts filed a motion for DNA testing and supporting affidavit in which he claimed coercion and innocence, denied participating in the sexual assault, and said he was not present during either the sexual assault or the murders. Nevertheless, the court found that Pitts: (1) stipulated to the evidence, judicially confessed, pleaded guilty, refused to withdraw his guilty plea, accepted the enhanced sentence, and waived appeal; (2) testified to participating in the sexual assault; and (3) failed to meet his burden of proof. The court further found that identity was and is not at issue, Pitts would have been convicted regardless of DNA results, and testing would not prove Pitts' innocence. When the court denied his motion without a hearing, Pitts appealed. ISSUES
In two issues, Pitts argues that the court erred by (1) failing to make proper findings according to articles 64.02 and 64.03; and (2) making a determination not based on the totality of the circumstances. The State responds that an appeal from article 64.02 is not available, not supported by the record and not preserved. Jurisdiction
When a defendant files a motion and affidavit for DNA testing, the court must provide the State with a copy of the motion and require the State to either "deliver the evidence" or provide a written explanation for its inability to do so. TEX. CODE CRIM. PROC. ANN. arts. 64.01(a), 64.02 (Vernon Supp. 2005). Unlike the current version, which applies to motions filed after September 1, 2003, the Code in affect at the time Pitts filed his motion for DNA testing allowed appeals only from "a finding under Article 64.03 or 64.04." See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.05 (Vernon Supp. 2005)); see also Wolfe v. State, 120 S.W.3d 368, 371 (Tex.Crim.App. 2003). Under the former law, a party could not appeal noncompliance with article 64.02. See Wolfe, 120 S.W.3d at 371. In his first issue, Pitts states that the court erred by denying the motion without making findings in accordance with article 64.02. Pitts argues that this issue addresses whether the court's failure to comply with article 64.02 hindered its ability to make a determination in accordance with article 64.03. However, we are not persuaded that Pitts's argument falls within the jurisdictional limitations of the former Code. Rather, the right to appeal a " determination to order testing" stems from articles 64.03 and 64.04, not article 64.02. Kutzner v. State, 75 S.W.3d 427, 434 (Tex.Crim.App. 2002) (emphasis added). Therefore, we do not have jurisdiction to consider whether the court failed to render proper findings under article 64.02. We will review only that portion of Pitts's argument addressing whether the court made proper findings under article 64.03. See Wolfe, 120 S.W.3d at 371. Because we so hold, we do not address the State's remaining arguments. Standard of Review
The ruling on a motion for DNA testing is reviewed under a bifurcated standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004). We give almost total deference to the court's "determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues." Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Analysis
A court may grant DNA testing only if it finds that: (1) the evidence "still exists" in a "condition making DNA testing possible;" (2) the "chain of custody" establishes that the evidence has not been "substituted, tampered with, replaced, or altered in any material respect;" and (3) "identity was or is in issue." TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1) (Vernon Supp. 2005). The defendant must prove, by a preponderance of the evidence, that: (1) he would not have been convicted had testing revealed "exculpatory results;" and (2) his request is "not made to unreasonably delay the execution of sentence or administration of justice." TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2) (Vernon Supp. 2005). In his first issue, Pitts argues that the court failed to make proper findings by neglecting to determine the existence, non-existence, or availability of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i). However, a court must make the findings listed in article 64.03 only when ordering forensic DNA testing, not when denying a motion for DNA testing. See Whitaker, 160 S.W.3d at 9; see also TEX. CODE CRIM. PROC. ANN. art. 64.03(a). Having denied Pitts's motion, the court did not err by failing to make the findings listed in article 64.03. We overrule Pitts's first issue. In his second issue, Pitts contends the court failed to consider the totality of the circumstances when denying his motion. In so arguing, Pitts claims that exculpatory evidence, coupled with the facts and circumstances surrounding his testimony, guilty plea, multiple differing statements and the unfulfilled promises of probation, would call his identity into question and prove that he would not have been convicted had exculpatory results been obtained. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B), (a)(2)(A). However, Pitts judicially confessed to sexual assault and testified under oath to his participation in the offense, his presence during the offense, his sexual assault of Murphy and his assistance in disposing of the bodies. Pitts further described the location where the bodies were discarded, stated that the bodies were wrapped in sheets and testified that Kussmaul both cut a hole in Murphy's pants and placed a gag in her mouth. This testimony was corroborated by additional evidence, including photographs and other exhibits. In light of this evidence, Pitts's guilt was established and would have resulted in a conviction, regardless of whose DNA was either present, or not present, on the items sought to be tested. See Whitaker, 160 S.W.3d at 9. Had DNA results revealed the presence of Pitts's DNA at the scene, this could indicate guilt. See Rivera, 89 S.W.3d at 60. If DNA results revealed the absence of Pitts's DNA at the scene, this neither negates his participation nor disproves his culpability as a party to the offense. See id. Even if DNA testing could prove that someone other than Pitts left DNA at the scene, this does not prove Pitts's innocence, but merely confirms that multiple parties participated in the offense. See Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002); see also Whitaker, 160 S.W.3d at 9. Either way, the facts and circumstances upon which Pitts relies neither negate his participation in the offense nor disprove his culpability as a party to the offense. See id. Pitts's argument amounts to nothing more than an attempt to make identity an issue in the future. See Bell, 90 S.W.3d at 308. The question is not whether "future DNA testing could raise the issue," but whether identity was or is an issue without the granting of DNA testing. Id. Pitts confessed to sexual assault. His identity was not and is not at issue. See id. At most, Pitts can merely show an inference that DNA may provide exculpatory results. See Rivera, 89 S.W.3d at 60. Any exculpatory inference that might be revealed by DNA testing is insufficient to outweigh the evidence of Pitts's guilt, raise the issue of identity, or assert sufficient grounds for DNA testing. See Rivera, 89 S.W.3d at 60; see also Thompson, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet ref'd). Thus, exculpatory DNA results would merely "muddy the waters." Rivera, 89 S.W.3d at 59. The court neither erred by finding that identity was not and is not in issue nor by finding that Pitts failed to meet his burden of proof. See Bell, 90 S.W.3d at 308; Rivera, 89 S.W.3d at 60; Thompson, 95 S.W.3d at 472. Finally, Pitts contends that the court ignored the great weight and preponderance of the evidence by failing to review his affidavit in light of the evidence concerning whether DNA results might exonerate him. According to Pitts, the court ignored his allegations of coercion, his admission to testifying in return for ten years probation, his multiple differing statements and his statement that he told police "anything they wanted to hear." Pitts argues the above facts and circumstances disprove his participation in the offense, that additional DNA evidence would not inculpate him and that the preponderance of the evidence proves that he would not have been convicted had testing revealed "exculpatory results." We disagree. First, these facts and circumstances, coupled with exculpatory DNA results, would neither call Pitts's identity into question nor prove his innocence. Rather, DNA results would merely "muddy the waters" and create an exculpatory inference of innocence in the face of conclusive evidence of guilt. See Rivera, 89 S.W.3d at 60; see also Thompson, 95 S.W.3d at 472. Pitts is simply incorrect that the preponderance of the evidence proves that he would have been convicted had exculpatory results been obtained. Second, the record contains no evidence indicating that the court ignored any facts and circumstances by denying Pitts's motion. When deciding whether to order DNA testing, a trial court may consider the "motion, accompanying affidavits, and the State's written response." Russell v. State, 170 S.W.3d 732, 733 (Tex.App.-Waco 2005, no pet). In the instant case, the court's findings indicate that it considered the trial, post-conviction and appellate proceedings from the Pitts, Kussmaul, Long, and Shelton cases, including affidavits, records, and testimony, and the State's response to Pitts's motion. As shown by the record, the court considered more evidence than required. See id. Furthermore, when a witness later changes his testimony, a trial court may "disbelieve that later statement and accept the earlier statement as true." Moreno v. State, 1 S.W.3d 846, 853 (Tex.App.-Corpus Christi 1999, pet ref'd); see Williams v. State, 375 S.W.2d 449, 452 (Tex.Crim.App. 1964). Thus, the court was entitled to accept Pitts's earlier testimony as true and could reasonably do so. See id. In light of all the evidence, the record does not reflect that the court ignored any facts and circumstances, but rather reflects that the court considered the totality of the circumstances when denying Pitts's motion. The court was not required to grant Pitts's motion and did not err in denying it. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim.App. 2002). We overrule Pitts's second issue. Having overruled both of Pitts's issues, we affirm the judgment.