GARY CURTIS FAISON, APPELLANT THE STATE OF TEXAS, APPELLEE

Transcription

1 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS GARY CURTIS FAISON, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from the 363rd Judicial District Court of Dallas County In Cause Number F W STATE S BRIEF Counsel of Record: CRAIG WATKINS JOHANNA H. KUBALAK CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. AMY SUE MELO MURPHY 133 N. INDUSTRIAL BLVD., LB-19 ASSISTANT DISTRICT ATTORNEY DALLAS, TEXAS (214) (214) fax ATTORNEYS FOR THE STATE OF TEXAS

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...ii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 8 ARGUMENT... 8 RESPONSE TO SOLE ISSUE: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT S MOTION FOR POST-CONVICTION DNA TESTING... 8 PRAYER CERTIFICATE OF SERVICE i

3 INDEX OF AUTHORITIES Cases Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) Eubanks v. State, 113 S.W.3d 562 (Tex. App. Dallas 2003, no pet.)... 9 Faison v. State, No CR, 1999 Tex. App. LEXIS 8876 (Tex. App. Dallas Nov. 30, 1999, no pet.) (not designated for publication)... 1 Jacobs v. State, No CR, 2009 Tex. App. LEXIS 6145 (Tex. App. Texarkana Aug. 7, 2009, no pet. h) Prible v. State, 245 S.W.3d 466 (Tex. Crim. App. 2008)... 9 Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002)... 9 Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008)... 9, 11, 12 Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005)... 9 Statutes TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009)... 1, 10 TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009)... 6 TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009)... 7, 8, 9 ii

4 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of appellant, Gary Curtis Faison. STATEMENT OF THE CASE On December 7, 1998, a jury convicted appellant of the offense of aggravated sexual assault and assessed punishment, enhanced by a prior felony conviction, at ninety years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. (CR: 2-4, 81). 1 This Court affirmed appellant s conviction on direct appeal. See Faison v. State, No CR, 1999 Tex. App. LEXIS 8876 (Tex. App. Dallas Nov. 30, 1999, no pet.) (not designated for publication). On April 12, 2007, appellant filed in the trial court a pro se request for postconviction DNA testing. (CR[DNA]: 2). The trial court appointed counsel to represent appellant, and a formal motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure was filed on his behalf on January 30, (CR[DNA]: 18-19). See TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009). On July 24, 2008, the State filed a response opposing appellant s motion. (CR[DNA]: 1 In an order issued March 10, 2009, this Court directed the Clerk to transfer to this appeal the clerk s and reporter s records from appellant s original direct appeal in cause number CR. Throughout this brief, the State will refer to the clerk s record and reporter s record from appellant s original direct appeal as CR and RR, respectively, and to the clerk s record from the post-conviction DNA proceedings as CR[DNA]. 2 This was appellant s second motion for post-conviction DNA testing under Chapter 64. Appellant filed his first motion in October 2002, and it was denied by the trial court in February (CR[DNA]: 23). 1

5 22). The trial court denied appellant s request for post-conviction DNA testing in an order dated August 29, (CR[DNA]: 58). STATEMENT OF FACTS On the evening of December 17, 1995, twenty-four-year-old A.P. returned home to her apartment after a week-long business trip. (RR 4: 16-18, 20). A.P. s apartment was located in The Lakes apartment complex, one of several complexes that together comprise an area of Dallas known as The Village. (RR 4: 16). Before leaving on her trip, A.P., who lived alone, had secured both the front door and the sliding glass door that led out onto the patio of her first-floor apartment. (RR 4: 17-18). The patio door was equipped with both a latch lock and a security bar. (RR 4: 18). When she returned home, A.P. found the front door still locked, but she did not check to see that the patio door was still secure. (RR 4: 21). After settling in and taking a shower, A.P. went to bed at around 10:00 p.m. (RR 4: 21-22). She awoke in the night to find a man standing next to her bed. (RR 4: 26). The man put a gloved hand over her face and threatened to kill her if she screamed. (RR 4: 26). A.P. never saw her attacker s face because he told her that if she opened her eyes, he would cut them out with a knife. (RR 4: 27). The man also put a pillowcase over A.P. s head. (RR 4: 27). He then led her into the hallway, where he made her lie face down. (RR 4: 28). A.P. heard the sound of the patio door being shut. (RR 4: 28-29). The man took A.P. back into the bedroom, where he ordered her to take off her clothes. (RR 4: 30-31). After asking A.P. if she had any pantyhose, the man took a new 2

6 package of pantyhose out of the dresser drawer, opened it, and used it to tie A.P. s hands in front of her. (RR 4: 32-33). The man then made A.P. lie down on her bed. (RR 4: 32, 34). With his gloves now off, the man began fondling A.P. s breasts and licking her vagina. (RR 4: 34). The man asked A.P. if she had ever fucked a black man or had an Alabama black man. (RR 4: 34-35). Calling her a little white bitch, the man also asked A.P. for her name, where she worked, and what her body measurements were. (RR 4: 35). A.P. was able to see the man s stomach while he was on top of her and confirmed that he was, indeed, black. (RR 4: 40-41). She also observed that he had a big belly. (RR 4: 41). A.P. later told police that the man had a strong southern accent. (RR 5: 51). Realizing that she was about to be raped, A.P. asked the man to wear a condom. (RR 4: 35-36). He told her that he had already put one on. (RR 4: 36). The man then penetrated A.P. s vagina with his penis. (RR 4: 36). As he raped her, the man repeatedly threatened to cut A.P. s face if she screamed. (RR 4: 36-37). He also ordered her to fuck him like he was [her] boyfriend. (RR 4: 37). The man then rolled A.P. over and penetrated her anally. (RR 4: 37). When A.P. screamed from the pain, the man became more forceful and ordered her to be quiet. (RR 4: 37). He also put his hand over her mouth, and A.P. thought she was going to suffocate. (RR 4: 37-38). When he was finished, the man forced A.P. into the bathroom with the pillowcase still over her head and ordered her to take a shower. (RR 4: 38). The man took a washcloth and scrubbed A.P. s vaginal area. (RR 4: 38). He then instructed A.P. to stay in the shower and continue washing herself off while he left the apartment. (RR 4: 38-39). A.P. remained in the shower for a couple more minutes before getting out, wrapping 3

7 a towel around herself, and calling the police. (RR 4: 39, 97, 107). A.P. later noticed that her American Express card and approximately five dollars in cash were missing from her wallet. (RR 4: 52). When the police arrived, the front door was unlocked, although A.P. remembered locking it before she went to bed that night. (RR 4: 39). Officers also discovered that the security bar on the patio door had been duct-taped back and jimmied in with a card so that it was no longer securing the door. (RR 4: 42-43). A.P. did not know how the door had come to be in that condition since she always kept the security bar down. (RR 4: 43, 108). The police developed a total of six comparable latent fingerprints from inside the apartment. (RR 4: 169). These prints were developed from the right and left sides of the unlocked deadbolt latch, from the plastic pantyhose package, from the piece of tape used to rig open the patio door, and from the top and middle dresser drawers. (RR 4: , 139). The police also collected the washcloth used to clean the victim s vaginal area, the bath towel that the victim used after showering, the victim s nightshirt and panties, the pillowcase placed over the victim s head, the pantyhose used to bind her hands, the fitted sheet from her bed, and several hairs from the bathtub. (RR 4: , ). A.P. was taken to Parkland Hospital, where a rape examination was performed. (RR 4: 44, ). The examining physician observed strap bruises on A.P. s wrists consistent with her having been tied up. (RR 4: 146). The physician also found evidence of trauma to A.P. s vaginal opening and rectum consistent with forcible intercourse. (RR 4: 147, 161). The physician did not observe any spermatozoa in a sample of A.P. s 4

8 vaginal discharge but did note one possible non-motile sperm present in the sample taken from her rectum. (RR 4: 149, 159, 165; SX-3). The washcloth, towel, nightshirt, panties, pantyhose, pillowcase, and sheet recovered from A.P. s apartment were subsequently analyzed at the Southwestern Institute of Forensic Sciences (SWIFS) for the presence of seminal fluid. (RR 4: 204). Application of a forensic light source did not reveal stains suggestive of seminal fluid on the nightshirt, pillowcase, towel, or fitted sheet. (RR 4: 204; SX-6). Acid phosphatase, suggestive of seminal fluid, was not detected on the washcloth, pantyhose, or panties. (RR 4: ; SX-6). Samples collected during the victim s rape examination were also analyzed at SWIFS. (RR 4: 202). Acid phosphatase, suggestive of seminal fluid, was not detected on the vaginal swab or anal swab. (RR 4: 202; SX-5). Both the vaginal smear and anal smear were negative for the presence of spermatozoa. (RR 4: 202; SX-5). SWIFS also analyzed the hairs recovered from the bathtub, as well as hairs found on the washcloth, pillowcase, towel, and sheet. (RR 4: ; SX-7). SWIFS determined that the hairs, which were both head and pubic, exhibited Caucasian racial characteristics. (RR 4: ; SX-7). No foreign hairs were found in the pubic hair combings taken from the victim during the rape examination. (RR 4: 218; SX-7). The case remained unsolved until July 1998, when appellant, a disc jockey at a local radio station, became a suspect. (RR 5: 31, 48). Detectives compared appellant s fingerprints to the fingerprints found inside A.P. s apartment. (RR 4: , ; RR 5: 49-50). Appellant s fingerprints matched the fingerprints found on the right side of the deadbolt lock and on the tape that had been used to disable the security bar. (RR 4: 5

9 135-36, 138). Testimony at trial revealed that appellant s fingerprints were compared to the fingerprints on the lock and on the tape no fewer than seven times by two different detectives. (RR 4: , 234). Each time, they were determined to be a match. (RR 4: 138, ). These findings were subsequently confirmed by a fingerprint expert hired by the defense. (RR 4: ). Of the four remaining latent fingerprints lifted from the crime scene, one from the top dresser drawer was matched to A.P., and three from the middle dresser drawer, the left side of the deadbolt, and the plastic pantyhose packaging were never identified. (RR 4: 139, 141, 172). Because she never saw her attacker s face, A.P. could not positively identify appellant as the man who assaulted her. (RR 4: 54-56). At trial, the defense presented evidence that appellant was approximately one hundred pounds heavier than the estimate given by A.P. of the weight of her attacker. (RR 4: 66, 258; RR 5: 28-29). The defense also presented evidence that appellant was born and raised in Garland, Texas; that he had never lived in Alabama and did not have any relatives living in Alabama; and that he did not have a strong southern accent. (RR 5: 30-31). After appellant filed his pro se request for post-conviction DNA testing in April 2007, the State contacted SWIFS, the Dallas Police Department (DPD), and the Dallas County District Clerk s Office in an effort to locate any evidence containing biological material that was secured in relation to this case. (CR[DNA]: 28). See TEX. CODE CRIM. PROC. ANN. art (Vernon Supp. 2009). SWIFS informed the State that the following items of evidence had been located in the laboratory s storage areas: the 6

10 victim s blood sample; the victim s pubic hair standard; envelopes containing hairs from the washcloth, pillowcase, towel, and sheet; and an empty envelope labeled pubic hair combings. (CR[DNA]: 28, 46). DPD informed the State that a search of its former computer system revealed that items related to this case had been retained by the trial court. (CR[DNA]: 28, 49). DPD s current computer system did not contain a listing for this case. (CR[DNA]: 28, 49). The District Clerk s Office provided the State with printouts from its evidence-tracking database, showing that approximately fifty items of evidence were still being stored in connection with this case. (CR[DNA]: 28-29, 51-55). Most of these items were paper exhibits: diagrams, reports, photographs, fingerprint cards, and medical records. (CR[DNA]: 51-55). The only potential sources of biological material possessed by the District Clerk were the washcloth, nightshirt, pillowcase, panties, sheet, and towel collected from the victim s apartment, and the hair samples collected from the victim s bathtub. (CR[DNA]: 29, 51-55). In its response to appellant s motion, the State argued that appellant had not met the requirements of Chapter 64 of the Texas Code of Criminal Procedure and, therefore, was not entitled to post-conviction DNA testing. (CR[DNA]: 30-31). Specifically, the State argued that appellant had failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. (CR[DNA]: 31). See TEX. CODE CRIM. PROC. ANN. art (a)(2)(A) (Vernon Supp. 2009). With respect to the hair evidence, the State argued that there was no proof that the hairs had been deposited by the person who sexually assaulted A.P. (CR[DNA]: 30). Indeed, the State argued, the fact that the hairs exhibited Caucasian characteristics 7

11 made it even more unlikely that they were deposited by the rapist, who was black. (CR[DNA]: 30). Accordingly, the State opposed DNA testing of the hairs on the grounds that such testing would never serve to exonerate appellant. (CR[DNA]: 30). In its order denying appellant s motion for post-conviction DNA testing, the trial court found that appellant had failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. art (a)(2)(A). SUMMARY OF ARGUMENT The trial court properly denied appellant s request for post-conviction DNA testing of the hairs recovered from the victim s bed linens, towels, and bathtub. Even if DNA testing revealed that the hairs did not belong to the victim, this would not serve to exonerate appellant because the record does not indicate when the hairs were deposited, and the fact that the hairs appear to be Caucasian indicates that they were not deposited by the rapist. ARGUMENT RESPONSE TO SOLE ISSUE: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT S MOTION FOR POST-CONVICTION DNA TESTING In his sole issue, appellant contends that the trial court erred in denying his request for DNA testing of the head and pubic hairs recovered from the washcloth, pillowcase, towel, sheet, and bathtub. He argues that DNA test results excluding the victim as the source of the hairs would have created a reasonable doubt as to his presence in the victim s apartment at the time of the offense. 8

12 A convicting court may order forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure only if the movant establishes by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. TEX. CODE CRIM. PROC. ANN. art (a)(2)(A) (Vernon Supp. 2009). In other words, the movant must prove that had the (presumptively favorable) results of the requested DNA test been available at trial, there is at least a 51% chance that he would not have been convicted. Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008); Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). The Court of Criminal Appeals has held that if DNA testing would not identify the person who committed the offense or would not exculpate the accused, then the requirement of article 64.03(a)(2)(A) has not been met. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008). A trial court s ruling on a motion for post-conviction DNA testing is reviewed under a bifurcated standard of review. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). The appellate court affords almost total deference to the trial court s determination of historical-fact and application-of-law-to-fact issues that turn on an evaluation of credibility and demeanor, while reviewing de novo other application-oflaw-to-fact issues that do not turn on credibility and demeanor. Id.; Eubanks v. State, 113 S.W.3d 562, 565 (Tex. App. Dallas 2003, no pet.). It was undisputed at trial that the hairs recovered from the victim s apartment did not belong to appellant. Robert Poole, chief of the Physical Evidence Section at SWIFS, testified that the hairs were examined prior to trial and found to exhibit Caucasian racial 9

13 characteristics. (RR 4: 216, ; SX-7). Charles Lynch, a trace evidence specialist at SWIFS, described how examiners assign racial origin to hair evidence. (RR 5: 33-36). Lynch testified that hairs from persons of predominantly European descent are oval on cross-section, while hairs from persons of African descent are flat. (RR 5: 35-36). Lynch opined that it would be pointless to compare hairs identified as having Caucasian characteristics to hairs belonging to appellant, who is black. (RR 5: 43). Even though the jury convicted him despite evidence showing that he could not have been the source of the hairs recovered from the victim s apartment, appellant now seeks DNA testing in the hopes that it will prove that the hairs did not belong to the victim. He argues that DNA evidence eliminating the victim as the source of the hairs would have caused the jury to harbor a reasonable doubt as to his guilt. 3 This argument fails because its premise that the hairs must belong to either the victim or the assailant is faulty. Indeed, the evidence at trial showed that the hairs, which were Caucasian in origin, could not have been deposited by the assailant, whom the victim described as black. Accordingly, DNA testing showing that the hairs did not come from the victim but from some unknown Caucasian individual would do nothing to prove appellant s innocence. 3 Appellant also suggests that DNA testing could identify a particular person as the source of the hairs. (Appellant s Brief, p. 19). Because the only comparison sample available in this case is the victim s blood sample, DNA testing could only include or exclude the victim as the source of the hairs. (CR[DNA]: 46). See TEX. CODE CRIM. PROC. ANN. art (b) (Vernon Supp. 2009) ( The motion may request forensic DNA testing only of [biological evidence] that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense.... ). 10

14 Furthermore, there is no way to know when the hairs were deposited. See Routier, 273 S.W.3d at 257. Appellant argues that because the victim had been living in the apartment for a year prior to the offense, because she had not dated anyone in the month preceding the assault, and because she had just returned from a week-long business trip, it can be presumed that the hairs did not belong to any previous occupants of the apartment or invited guests. Appellant also argues that there was no evidence indicating that the victim had any overnight guests prior to her business trip. But the victim testified that she did, indeed, have overnight guests [o]nce in awhile. (RR 4: 63). Any of those individuals may have deposited hairs on the victim s bed linens and towels or in or around her bathtub. Moreover, even if the bed linens and towels had been laundered, the hairs might not have been completely washed away, or additional hairs may have been deposited, especially if the victim used a communal laundry facility. In order to meet his burden under article 64.03(a)(2)(A), appellant must show by a preponderance of the evidence that the victim s lone attacker is the donor of the material for which he seeks DNA testing. See Blacklock v. State, 235 S.W.3d 231, 232 (Tex. Crim. App. 2007). Even if DNA testing excluded the victim as the source of the hairs, this does not leave the assailant as the only possible source. The hairs could have been spontaneously and unwittingly shed at any time and by any person who had been inside the victim s apartment or who had otherwise come into contact with the victim s bed linens or towels. Because the donor of the material sought to be tested in this case is not necessarily and, given the racial origin of the hairs, is almost certainly not the person who 11

15 sexually assaulted A.P., appellant cannot show that it is more likely than not that the jury would have harbored a reasonable doubt and declined to convict him had DNA testing revealed that the hairs belonged to one or more unidentified third parties. See Routier, 273 S.W.3d at 259; see also Jacobs v. State, No CR, 2009 Tex. App. LEXIS 6145, at *10-11 (Tex. App. Texarkana Aug. 7, 2009, no pet. h) (holding that Jacobs was not entitled to post-conviction DNA testing of hairs recovered from the scene of the sexual assault because even if testing revealed that the hairs belonged to neither Jacobs nor the victim, this would not exonerate Jacobs). Appellant s sole issue should be overruled. PRAYER The State prays that this Honorable Court affirm the trial court s order denying appellant s motion for post-conviction DNA testing. Respectfully submitted, CRAIG WATKINS JOHANNA H. KUBALAK CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. INDUSTRIAL BLVD., LB-19 DALLAS, TEXAS (214) (214) fax 12

16 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing State s brief has been served on Kathleen A. Walsh, attorney for appellant, Dallas County Public Defender s Office, 133 N. Industrial Blvd., LB 2, Dallas, Texas 75207, via hand-delivery on October 8, JOHANNA H. KUBALAK 13