Ex Parte Danny Lee HOLLOWAY, II, Applicant.
No. WR-78955-01.
Court of Criminal Appeals of Texas.
Oct. 30, 2013.
95
of appeals and the majority specifically reject Appellee‘s argument that his pretrial motion to suppress challenged the scientific reliability of the breath-test results. The majority states that the Appellee argued that the evidence should be excluded as illegally obtained but did not argue that it should be excluded as scientifically unreliable and inadmissible. If Appellee had so argued, then the burden of production would have been on the State. The majority says that the absence of evidence could be a reason for a trial judge to deny a motion to suppress but it is not a valid reason to grant the motion. I disagree. The defendant‘s motion to suppress asked the judge to review the lawfulness of the detention and the breath-test evidence. Appellee was not required to cite rules of evidence, which do not apply at suppression hearings, in order for the judge to review the requested breath-test results. See Granados v. State, 85 S.W.3d 217, 227 (Tex.Crim.App.2002).2 It is clear from the record that the trial judge understood the defendant‘s request to review the reliability and admissibility of the breath-test evidence, but the fact is that the State did not present any evidence at all related to the breath test. After the arresting officer testified at the hearing, the judge asked the State to call its next witness and the State said it was “pretty much done.” The judge asked the State two more times to call a witness. At that point it was clear that the State had nothing to show the court concerning the reliability of the breath test. Because nothing was provided for the judge to review, he was certainly within his discretion to suppress this evidence.
Copeland, 399 S.W.3d 159 (Tex.Crim.App. 2013). Apparently the courts of appeals are no longer supposed to try to affirm cases on some other grounds.
In its findings and conclusions, the trial court determined that Appellee was lawfully detained, but because the State failed to present evidence regarding the breath test, the trial judge granted the defendant‘s motion to suppress. The trial judge did not abuse his discretion in suppressing evidence that the State failed to produce at the hearing and therefore I would reverse the court of appeals and affirm the ruling of the trial court.
Gary D. Young, District Attorney Lamar County, Paris, TX, Lisa C. McMinn, State‘s Attorney, Austin, TX, for the State.
OPINION
PER CURIAM.
Pursuant to the provisions of Article
In 2006, Applicant moved for post-conviction DNA testing under
The results of the DNA testing performed on two stains from the knife indicated that Ashley Lee was excluded as a possible source of, or contributor to, the DNA profile obtained from the knife. A hearing was conducted on the post-conviction DNA testing results, at which Applicant argued that he was entitled to a new trial because the State had referred to the
On December 3, 2012, Applicant filed this application for writ of habeas corpus in the trial court. This Court received the application on January 14, 2013. Applicant originally raised five grounds for review in his application, including prosecutorial misconduct in failing to disclose exculpatory evidence to the defense, ineffective assistance of trial counsel, and actual innocence. On February 13, 2013, this Court remanded the matter to the trial court to obtain findings and affidavits addressing Applicant‘s claims.
On April 10, 2013, the trial court conducted a habeas hearing, at which Applicant indicated that he intended to pursue only the actual-innocence claim. After the habeas hearing, the trial court entered findings of fact and conclusions of law, recommending that relief be granted on the basis of actual innocence.
However, this Court has reviewed the transcripts of the trial, the post-conviction DNA hearing and the habeas hearing, and concludes that the trial court‘s findings of fact, conclusions of law, and recommendation to grant relief are not supported by the record.
An applicant for habeas relief based on a claim of actual innocence must demonstrate that the newly discovered evidence, if true, creates a doubt as to the correctness of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different on retrial. Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex.Crim.App.1996). In the context of a free-standing claim of actual innocence, an applicant can establish that it is “probable” that the verdict would be different on retrial only if he can “show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Id., at 209. In this case, the trial court finds that the exclusion of the victim, Ashley Lee, as a possible source of, or contributor to, the DNA profile found on the knife taken from Applicant‘s car proves that the knife was not the murder weapon. The trial court finds that there is a reasonable probability that the knife was the piece of tangible evidence relied upon by the jury to convict Applicant, and concludes that there is a reasonable probability that no reasonable juror would have convicted Applicant had the DNA evidence been available at trial.
The evidence presented at trial in this case included testimony from several witnesses who were present during the fight at a Paris, Texas nightclub that led to the death of Ashley Lee, a bystander to the fight. The State presented testimony from at least six witnesses who saw Applicant with a knife or saw Applicant stab someone during the melee. Two of the State‘s witnesses, Courtney Gray and Mike Lipscomb, were themselves stabbed by Applicant during the fight, and two other witnesses testified that they saw Applicant stab Ashley Lee while he was wildly swinging the knife around in the crowd.
The defense presented testimony from Applicant‘s common-law wife, whose hand was cut with a serrated knife when she was trying to extricate Applicant from the fight. She testified that she did not see anyone with a knife at the scene, and that Applicant did not own a knife like the one that had been taken from his car while they were at the hospital getting her hand treated. The defense presented testimony from three other witnesses who testified that they did not see anyone with a knife on the night of the offense, one witness who saw Applicant with a small pocket knife, not the large survival knife taken from Applicant‘s car, and one witness who
The knife recovered from Applicant‘s car was tested for fingerprints, and the knife and a rag in which it was wrapped were tested for the presence of blood. No fingerprints were found, and the rag tested negative for blood. However, the two stains on the knife tested presumptively positive for blood. No additional evidence regarding the source of the blood or DNA was presented at trial.
The State now argues that the trial prosecutor never represented to the jury that the knife found in Applicant‘s car was the knife used by Applicant to stab Ashley Lee. However, the State‘s witnesses testified that the knife used by Applicant looked like the knife recovered from Applicant‘s car, and a police officer testified that the knife recovered from Applicant‘s car qualified as a deadly weapon, in support of the affirmative deadly-weapon allegation. Clearly, the implication at trial was that the knife recovered from Applicant‘s car was the knife he used to stab three people during the fight.
However, the absence of Ashley Lee‘s DNA from the stains on the knife is not clearly exculpatory, as argued by Applicant. The testimony at trial indicated that Applicant stabbed at least two other people during the fight and suggested that he may also have cut his wife‘s hand while she was trying to extricate him from the fight. The absence of fingerprints on the knife was explained at trial by the possibility that the knife had been wiped off prior to its discovery. Such cleaning could also have removed some or all of Ashley Lee‘s DNA from the knife.
Furthermore, even if, as Applicant argues, the knife was “the piece of tangible evidence” upon which the jury relied to convict him, there was ample “intangible” evidence that Applicant stabbed several people with a knife on the night of the offense, including the testimony of people who saw Applicant stab people, and people who were themselves stabbed.
The results of the
Relief is denied. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.
PER CURIAM