518 S.W.3d 439
Tex. Crim. App.2017Background
- Joe Edward LaRue was convicted in a bench trial for the 1989 capital murder of Donna Pentecost; conviction rested on DNA (semen and fingernail evidence) and jailhouse informant testimony; he received life imprisonment.
- Evidence collected in 1989 included oral swabs, fingernail scrapings, clothing, cigarette butts, and a blood-stained cement block; earlier DNA testing was limited or inconclusive; later testing linked LaRue to semen on an oral swab and to material under the victim’s fingernails.
- Augustine (Jackie Ray Augustine) was an early suspect whose shirt tested positive for blood in 1989 but Augustine was never asked for a blood sample and was later not treated as a suspect; his shirt remained untested with modern methods.
- In 2014 LaRue filed a post-conviction motion under Tex. Code Crim. Proc. art. 64 seeking modern DNA re‑testing of items including Pentecost’s oral swabs, fingernail scrapings, and Augustine’s shirt; the trial court denied the motion; the Beaumont Court of Appeals affirmed.
- The statutory threshold (Art. 64.03) requires the convicting court to find that the movant "would not have been convicted if exculpatory results had been obtained"; Texas courts limit "exculpatory results" to tests that exclude the convicted person as the donor.
- The Court of Criminal Appeals affirmed the denial, holding that potential exculpatory test results here would at best "merely muddy the waters" and would not, more likely than not, have prevented conviction given the existing inculpatory evidence (admissions, fingernail DNA, and jailhouse testimony).
Issues
| Issue | Plaintiff's Argument (LaRue) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether modern DNA re‑testing of oral swabs/blood would require testing | New tests could exclude LaRue as donor of oral swab semen; prior testing was inconsistent and blood-typing errors undermine prior comparisons | Even assuming exclusion, LaRue admitted consensual oral sex with victim and his DNA was found under fingernails; exclusion of oral-swab DNA would not change outcome | Denied — exclusion of oral-swab DNA would not likely have prevented conviction given other strong inculpatory evidence |
| Whether modern DNA testing of Augustine’s shirt should be ordered | If Pentecost’s blood is on Augustine’s shirt, it would corroborate LaRue’s statements implicating Augustine and support alternative-perpetrator theory | Presence of victim’s blood on Augustine’s shirt would not exonerate LaRue; at best it shows another party was involved and would only “muddy the waters” | Denied — even a match to Pentecost would not, more likely than not, have prevented conviction |
| Proper legal standard under Article 64 for ordering testing | (Implicit) Court should assume hypothetical exculpatory results and order testing when identity is disputed | Movant must prove by a preponderance that exculpatory results (i.e., excluding movant) would have resulted in not being convicted | Applied existing standard: movant must show he would not have been convicted if testing had excluded him; LaRue failed to meet burden |
| Probative value of newer testing vs prior results | Newer techniques are more discriminating and may yield more accurate, probative results than older tests | Even if newer tests are more accurate, they must be shown by movant to likely change the verdict; here they would not | Held that potential improved accuracy does not satisfy Article 64 absent showing that exclusion would likely have avoided conviction |
Key Cases Cited
- State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) (defines "exculpatory results" as those excluding the convicted person and requires movant to show by preponderance that exclusion would have prevented conviction)
- Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) (limiting exculpatory DNA results to tests excluding the defendant)
- Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) (denial appropriate where exculpatory results would only "muddy the waters")
- Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) (movant must show newer techniques will likely produce more probative results than prior tests)
- Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006) (finding that proof of another perpetrator by DNA does not necessarily exonerate the convict)
- Maryland v. King, 569 U.S. 435 (U.S. 2013) (recognizing DNA's high accuracy compared to other identification methods)