No. 05-09-00747-CR
Opinion Filed April 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 380th Judicial District Court Collin County, Texas, Trial Court Cause No. 296-80438-99.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
William Sheckells appeals the trial court's order denying his motions for post-conviction DNA testing under chapter 64 of the code of criminal procedure. We affirm the trial court's order.
Sheckells's original appellate counsel filed an Anders brief and concluded this appeal was frivolous. See Anders v. California, 386 U.S. 738 (1967). Our review of the record, however, revealed arguable error, and we remanded the case to the trial court for appointment of new counsel. Sheckells v. State, No. 05-09-00747-CR, 2010 WL 2978421 (Tex. App.-Dallas July 30, 2010, no pet.) (not designated for publication); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) ("If grounds are deemed arguable, the Court of Appeals then must abate the appeal and remand the case to the trial court with orders to appoint other counsel to present those and any other grounds that might support the appeal."). Sheckells's new counsel filed the brief now before this Court.
Background
On March, 2, 2000, Sheckells was convicted of aggravated sexual assault of a child and sentenced to thirty-five years in prison. We affirmed his conviction on appeal. Sheckells v. State, No. 05-00-00660-CR, 2001 WL 1178828 (Tex. App.-Dallas Oct. 8, 2001, no pet.) (not designated for publication). The evidence at trial included the testimony of S.R., who was twelve-years old when she lived at the Manor House Apartments in 1999. Sheckells performed maintenance services at the apartment complex. On February 8, 1999, S.R. was home from school and noticed a water leak. She called the manager's office and requested that maintenance personnel repair the leak. Just after noon, S.R. heard a knock at the door, allowed Sheckells into her apartment, and went into her mother's bedroom to watch television while Sheckells fixed the leak. According to S.R., a few minutes after he arrived, Sheckells hit her in the face with a pillow and smothered her while she lay on the bed. She testified she was asthmatic, could not breathe, and feared for her life. S.R. testified Sheckells pulled down her pants and panties, undid his pants, and "stuck his private part into her private part." Next, Sheckells held S.R. by her hair and put his penis in her mouth until "white stuff" came out. S.R. testified Sheckells then cleaned himself with some tissue, disposed of the tissue in the toilet, pulled up his pants, and told her he was leaving to retrieve his camera. After he left, S.R. locked the door and immediately called her mentor. S.R.'s mentor called the police. Officer Neil Knowlton responded to the call and testified he found S.R. crying, upset, and scared. He further stated S.R. identified the perpetrator as the maintenance man named "Bill" and described him as having grey hair and wearing a blue jacket. When he was apprehended, Sheckells matched this description given by S.R. Melissa Fowler, a paramedic, testified S.R. was complaining that her "privates" were hurting. Dr. Donna Persaud examined S.R. and testified S.R. had swollen, red vaginal tissue and submucosal hemorrhages which were consistent with trauma and "indicates penetration." Additionally, the State presented John Donahue, a criminalist with the Texas Department of Public Safety Lab, who testified he completed a STR DNA analysis of evidence retrieved from the crime scene and could not exclude either S.R. or Sheckells from the stain sample tested. The State also introduced testimony from Dr. M. Al Salih, who discussed the mitochondrial DNA test he performed on evidence recovered from S.R.'s apartment. Like the STR DNA results, Dr. Salih's test results could not exclude Sheckells or S.R. as contributors of DNA to evidence recovered at the scene. Sheckells presented two experts, Dr. John Planz and Dr. Robert Benjamin. Dr. Planz stated the mitochondrial DNA testing procedures of Dr. Salih were "unreliable and sloppily prepared," and Dr. Benjamin felt Dr. Salih was "incompetent." In 2005, Sheckells filed a motion for post-conviction DNA testing that was denied by the trial court. In 2008, Sheckells filed the motion for post-conviction DNA testing and the motion for retesting of DNA that are at issue in this case. Without conducting a hearing, the trial court denied the motions. Analysis
We must first consider the specific relief Sheckells sought in the two motions he filed in 2008. In the motion for post-conviction DNA testing, Sheckells requested the trial court "order that the inconclusive biological material in this cause be subjected to updated DNA testing," but did not identify the specific "inconclusive biological material" that was the subject of the motion. However, Sheckells acknowledged in the motion that the material "had previously been subjected to testing in 1999." In the motion for retesting of DNA, Sheckells sought retesting of "inconclusive biological material, in which [Sheckells] was not excluded as a possible contributor nor was the alleged victim excluded." Although Sheckells referenced several pieces of evidence in the motion for retesting of DNA, the only referenced sample which contained a mixture of DNA from more than one person and from which neither Sheckells nor S.R. were excluded as a contributor was a semen stain from Sheckells's jeans. Further, in the "Conclusion" to the motion for retesting of DNA, Sheckells states, "Newer and updated technologies and equipment will show that the DNA mixture from the suspect's jean[s] does not match either the suspect nor the victim." Accordingly, we conclude Sheckells sought in both motions only to have the semen stain from his jeans retested for DNA. When, as here, the trial court denies a motion for post-conviction DNA testing without conducting a hearing, we review the ruling de novo. Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). A convicted person who moves for post-conviction DNA testing under chapter 64 of the code of criminal procedure bears the burden of satisfying chapter 64's requirements. See Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006); see also Swearingen v. State, 303 S.W.3d 728, 731 (Tex. Crim. App. 2010) (Chapter 64 of the code of criminal procedure "requires multiple threshold criteria to be met before a convicted person is entitled to DNA testing."). Under article 64.01(b)(2), evidence that was previously subjected to DNA testing qualifies to be tested again only if it can be "subjected to testing with 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)(2) (West Supp. 2010). Sheckells requested in his motion for post-conviction DNA testing that the trial court order "testing of the evidence with existing technology and techniques that provide a reasonable likelihood of results that are accurate and probative and would demonstrate [Sheckells's] innocence." He similarly requested in his motion for retesting of DNA that the trial court order retesting of "the inconclusive DNA with existing technology and techniques that provide a reasonable likelihood of results that are accurate and probative and would demonstrate the innocence of [Sheckells]." Sheckells made no allegation, and offered no evidence, in either motion that a newer testing technique existed or that any newer testing technique was reasonably likely to provide more accurate and probative results than the first test. See Swearingen, 303 S.W.3d at 735 ("However, on the facts of this case, appellant has not shown a reasonable likelihood that results [from a newer testing technique] would be more accurate or probative."); see also Routier v. State, 273 S.W.3d 241, 251, 254-55 (Tex. Crim. App. 2008) (defendant met burden of showing reasonable likelihood of obtaining more accurate and probative results from retesting of certain blood stains and hair samples through expert affidavit establishing availability of newer STR testing technique and improved "clean up" technology); Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (appellant failed to meet requirements of article 64.01 because he did not provide facts in motion regarding what evidence he wanted tested and whether, for evidence that was not previously subjected to DNA testing, type of DNA testing available at time of trial was incapable of providing probative results). Sheckells, therefore, failed to meet his burden to demonstrate that the semen stain from his jeans qualified to be retested for DNA under article 64.01(b)(2) of the code of criminal procedure. See Routier, 273 S.W.3d at 250 (defendant not entitled to have blood stains from socks retested because she failed to establish that new testing results would be more probative than results of previous testing). Further, the trial court could order the requested testing only if Sheckells also established by a preponderance of the evidence that he met the requirements of section 64.03(a) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2010); Leal v. State, 303 S.W.3d 292, 295-96 (Tex. Crim. App. 2009). Under article 64.03(a), Sheckells was not entitled to post-conviction DNA testing unless he showed "that unaltered evidence is available for testing; that identity was an issue in the case; that there is greater than a 50% chance that he would not have been convicted if DNA testing provided exculpatory results; and that the request is not to delay the execution of the sentence." Leal, 303 S.W.3d at 296 (citing Prible v. State, 245 S.W.3d 466, 467-68 (Tex. Crim. App. 2008)); see also Tex. Code Crim. Proc. Ann. art. 64.03(a). Regardless of the defendant's plea and the strength of the identification evidence adduced at trial, the defendant can make identity an issue in the case by showing that DNA tests would prove his innocence. Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009); Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007). However, chapter 64's identity requirement "relates to the issue of identity as it pertains to the DNA evidence." Prible, 246 S.W.3d at 470. If DNA testing would not determine the identity of the person who committed the offense or would not exculpate the person convicted, then the statutory requirements are not met. Id. Relying on Blacklock, Sheckells contends that if the semen stain from his jeans is retested, the test results will establish neither he nor S.R. contributed DNA to the stain and that, therefore, Sheckells is innocent. In Blacklock, the victim had been sexually assaulted by a lone attacker, and the State had collected semen samples from the victim's vaginal smears, pants, and panties. The appellant alleged that it was reasonably probable that he would not have been prosecuted or convicted if the biological evidence had been subjected to proper DNA testing and the results of the tests excluded him as the donor. This allegation met the statutory requirement that exculpatory DNA test results would establish the appellant's innocence because the semen was from the lone attacker and no one else. Id. at 232. This case is distinguishable from Blacklock because if the semen stain from Sheckells's jeans was retested and the test results excluded either Sheckells or S.R. as a contributor of the DNA in the stain, this result would not establish Sheckells's innocence. The jeans belonged to Sheckells, not S.R. The donor of the DNA material on Sheckells's jeans was not necessarily the attacker. Rather, the donor of the material could be any person under circumstances completely unrelated to this case and about which we decline to speculate. The requested DNA testing would not, therefore, determine the identity of the person who committed the offense and would not establish Sheckells's innocence. See id. (defendant requesting DNA testing makes identity an issue by showing that exculpatory DNA tests would prove his innocence). Sheckells was also required to show there is greater than a 50% chance that he would not have been convicted if DNA testing provided exculpatory results. See Leal, 303 S.W.3d at 296. The jury heard substantial evidence of Sheckells's guilt independent of the disputed DNA testing results. Further, as set out above, results of the requested DNA testing of the semen stain that excluded either Sheckells or S.R. as a donor would not establish that Sheckells did not commit the offense. Accordingly, Sheckells failed to show, by a preponderance of the evidence, that a jury would not have convicted him if the jury had before it results of the requested testing excluding either Sheckells or S.R. as a donor of DNA to the semen stain. See Swearingen, 303 S.W.3d at 736 ("Texas courts have consistently held that a movant does not satisfy his burden under Article 64.03 if the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing."); Prible, 245 S.W.3d at 470 (presence of another person's DNA at crime scene not necessarily exculpatory); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (considering appellant's due process claim and reasoning that, without more, the presence of another person's DNA at crime scene will not constitute affirmative evidence of appellant's innocence). Because Sheckells failed to meet his burden under chapter 64 of the code of criminal procedure, the trial court did not err by denying his motions for post-conviction DNA testing and for retesting of DNA. We affirm the trial court's order denying Sheckells's requests for post-conviction DNA testing.