Opinion
NUMBER 13-16-00609-CR
05-17-2018
EX PARTE MARK ANTHONY MONCADA ESTRADA
On appeal from the 139th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
In this appeal, pro se appellant Mark Anthony Moncada Estrada challenges the trial court's denial of his second motion for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. ch. 64 (West, Westlaw through 2017 1st C.S.). We affirm.
I. BACKGROUND
Appellant was convicted in 2009 of the murder of Imelda De Leon, and he was sentenced to life imprisonment. See Estrada v. State, No. 13-09-00493-CR, 2011 WL 3370407, at *1 (Tex. App.—Corpus Christi Aug. 4, 2011, pet. ref'd) (mem. op., not designated for publication) (affirming conviction).
In 2012, appellant filed a motion with the convicting court for forensic DNA testing of various items purportedly recovered by investigators from the crime scene. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1). Appellant's motion also asked the court to appoint counsel to represent him in the proceeding. See id. art. 64.01(c). Finding no reasonable grounds for a motion to be filed, the trial court denied appellant's request to appoint counsel. See id. The trial court also denied the motion for DNA testing itself, concluding that: (1) appellant "has not shown that biological material exists which could be subjected to forensic DNA testing"; and (2) "[i]n light of the significant evidence of [appellant]'s guilt, [appellant] has not shown that he would not have been convicted based upon the results of additional forensic DNA testing." See id. art. 64.03(a)(1)(A)(i), (a)(2)(A). We affirmed the trial court's rulings. Estrada v. State, No. 13-13-00283-CR, 2015 WL 1869574, at *1 (Tex. App.—Corpus Christi Apr. 23, 2015, pet. ref'd) (mem. op., not designated for publication).
The items which appellant sought to have tested in his first motion were:
two swabs from the bathroom floor railing; dentures from the bathroom floor; toilet brush handle; cross pendent from the bathroom floor; bra from blue trash can in bathroom; broken necklace on shower floor; broken jewelry from bathroom; knife found unwiped on shower floor; sponge on kitchen floor; tissue at kitchen bar; swab from master bedroom; damaged quarter of earring; tape lift; tissue paper [found near] living room left outlet; and two swabs from lifting handle on green trash can.Estrada v. State, No. 13-13-00283-CR, 2015 WL 1869574, at *1 (Tex. App.—Corpus Christi Apr. 23, 2015, pet. ref'd) (mem. op., not designated for publication).
Appellant filed his second motion for post-conviction DNA testing on September 21, 2016, seeking testing on the following items purportedly obtained at the crime scene: "blood stain on plastic di[]ning[ ]room table"; "blood stain on a tissue paper found on kitchen bar"; "blood stain on a tissue paper found in living[ ]room"; "blood stain on a bra found in a blue trashcan"; "blood stain from a swab off of DVD player"; "blood stain from a swab off of master bedroom wall"; and "blood stain from a swab off of master bedroom floor tile." Appellant further requested that two other items be re-tested using newer techniques: "swab from lifting handles to green trash can" and "sponge from kitchen sink." Appellant attached to the motion an affidavit by a forensic pathologist stating in part:
Appellant's second motion did not include a request for appointment of counsel.
Based on my education, training and experience, and my review of [the entire trial transcript as well as DNA reports], it is my opinion to a reasonable degree of medical certainty that:
• The injuries suffered by the victim were not immediately incapacitating but would have bled profusely immediately following infliction.
• Because of this, any individual droplets or areas of minimal blood would not be expected to originate from the victim; they would belong to the attacker if the victim attempted to defend herself.
• Great strides in DNA analysis have been made since 2008 when the original testing was done and previously non-interpretable results may be able to be interpreted.
• DNA analysis of the small droplets and samples from the areas of minimal blood would identify the attacker.
The State filed a response in which it argued that only three of the items addressed in the second motion were not already mentioned in the first motion. The State further argued that appellant failed to meet his burden to obtain post-conviction testing as to the remaining items.
Without holding a hearing, the trial court denied the motion in an order which included findings of fact and conclusions of law. This appeal followed.
The court reporter filed an affidavit stating that there was no hearing in open court on appellant's motion. See Ex parte Gutierrez, 337 S.W.3d 883, 893 (Tex. Crim. App. 2011) ("Article 64.03 does not require any evidentiary hearing before the trial judge decides whether a convicted person is entitled to DNA testing.").
II. DISCUSSION
A. Applicable Law and Standard of Review
Under chapter 64, a convicted person may file a motion with the convicting court for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material, was in the possession of the State during trial, and was not previously subjected to DNA testing. TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1), (b). The court must order testing if and only if it finds that: (1) the evidence still exists, is in a condition making DNA testing possible, and 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; (2) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; (3) identity was or is an issue in the underlying case; (4) the convicted person established by a preponderance of the evidence that he or she would not have been convicted if exculpatory results had been obtained through DNA testing; and (5) the convicted person established by a preponderance of the evidence that the request for testing is not made to unreasonably delay the execution of sentence or administration of justice. Id. art. 64.03(a)(1)(A)-(C), (a)(2)(A)-(B); Ex parte Gutierrez, 337 S.W.3d 883, 889-90 (Tex. Crim. App. 2011).
In reviewing a trial court's rulings under chapter 64, we afford "almost total deference" to the trial judge's findings of historical fact and application-of-law-to-fact issues that turn on witness credibility and demeanor, and consider de novo all other application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d at 890.
B. Analysis
The State notes, as it did in the trial court, that several of the items requested to be tested in appellant's second motion were already addressed in the first motion. In particular, appellant requested testing of at least the following items in both motions: bra found in blue trash can, tissue found on kitchen bar, tissue found in living room, and swabs from lifting handles on green trash can. See Estrada, 2015 WL 1869574, at *1. We concluded in the earlier appeal that appellant failed to show by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been obtained from these items. Id. at *4; see TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). The State contends that, under the law of the case doctrine, we are bound by our previous ruling, at least to the extent that appellant's second motion addressed the same items as the first motion. See State v. Swearingen, 478 S.W.3d 716, 720 (Tex. Crim. App. 2015) (noting that the law of the case doctrine, which provides that "an appellate court's resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue," applies to post-conviction motions for DNA testing under chapter 64).
We note that, even though there is substantial overlap in the lists of items in the first and second motions, the second motion also contains the forensic pathologist's affidavit which was not included in the first motion. Arguably, then, the trial court had more "evidence" to consider in evaluating whether appellant's second motion established by a preponderance of the evidence that he would not have been convicted had there been exculpatory DNA results. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A). In any event, regardless of whether the law of the case doctrine applies here, we nevertheless reach the same conclusion as to all of items listed in the second motion.
As in the first motion, appellant argues in his second motion that identity was an issue in the case, that testing of the various items may reveal DNA belonging to a person other than himself or the victim, and that such evidence would cast doubt on his identity as the person that committed the murder. But as the Texas Court of Criminal Appeals has held, the requirement that identity be an issue in the case is not satisfied merely because appellant pled not guilty and claimed throughout the trial that someone else committed the murders. Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(C).
Moreover, as we recognized in the earlier appeal, there was substantial evidence of appellant's guilt adduced at trial:
The evidence showed that appellant met the victim; invited her to his friend's home where he was staying at the time; engaged in intercourse with her; and had been alone with her when she suffered multiple fatal stab wounds. The evidence also showed that the stab wounds were not consistent with the victim suffering a convulsion or committing suicide, as appellant later claimed. Further, there was evidence that appellant put the victim's body in a trash can; left the scene on his friend's ATV; and later called his friend to warn him to clean up the blood that was left in the bathroom.Estrada, 2015 WL 1869574, at *3. Here, again, appellant sets forth only a bare assertion that the items sought to be tested might contain DNA that belongs to a third party. Even if those items did contain such DNA, that is not enough to show by a preponderance of the evidence that he would not have been convicted, in light of the other evidence adduced at trial. See Prible, 245 S.W.3d at 470 (citing Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (holding that "[t]he presence of another person's DNA at the crime scene will not, without more, constitute affirmative evidence of appellant's innocence" and therefore denial of DNA testing did not violate appellant's due process rights)); see also TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A).
The inclusion of the forensic pathologist's affidavit in the second motion does not change this result. The pathologist averred that the stab wounds suffered by the victim "would have bled profusely immediately following infliction" and, therefore, "any individual droplets or areas of minimal blood would not be expected to originate from the victim." But there is no indication that any of the items sought to be tested in the second motion actually contained "droplets or areas of minimal blood." Further, even if the pathologist was correct in his statement that "areas of minimal blood would not be expected to originate from the victim," the mere potential presence of a third party's DNA at the crime scene does not, by itself, establish by a preponderance of the evidence that appellant would not have been convicted. See Prible, 245 S.W.3d at 470; see also TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A).
For the foregoing reasons, we conclude that the trial court did not err in denying appellant's second motion for post-conviction DNA testing under chapter 64.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of May, 2018.