*1 Interme- settings appropriate. restrictive RIVERA, Appellant, Alfredo facilities, Jose only purpose care whose is
diate lives, make the young to restore do not fairly cannot be made policy State’s The of Texas. STATE hopes. for its unattained responsible 74,359. No. hold that concurring opinion of Texas. Appeals of Criminal duty Dixon’s miscon- Court report THM had question and that a fact duct to the State 6, 2002. Nov. opinion it remains whether did so. everything
seems to notice almost preced- Dixon’s misconduct
we know about murder,
ing recited both Court’s concurring opinion, reports
contained in detailed to the THM’s It is not clear what else THM
State. Furthermore, reported. have
should out that the
opinion points State undertook review of progress its own Dixon’s make
every days. nothing There is before suggest
us to that the State did not know
full well made progress what Dixon had problems persisted.
and what record, reasonably
On should THM
have foreseen Dixon would commit not, Absolutely
murder? no more than Peavy
Elizabeth should have foreseen that might be assaulted at a convenience
store. This case is loss two about the
lives, just Peavy one. Elizabeth
dead. Dixon stood trial for murder
and was convicted and sentenced to life in
prison. Neither loss was the fault of a boys. Today’s
home for retarded decision tragedy; repeats trage-
does redress
dy. summary
I affirm the court’s I
judgment. Accordingly, respectfully dis-
sent. *2 Marcos, Sergi, Appel-
David K. San lant. Olson, District Attor-
John A. Assistant Paul, Brownsville, ney, Matthew State’s Austin, Attorney, for State OPINION KELLER, delivered the unanimous P.J. opinion of the Court. mur- convicted of
Appellant was aggravated der—murder in the course sentenced to death. sexual assault1 —and affirmed and his appeal His direct corpus application for writ of habeas an Subsequently, appellant filed denied. application for DNA on argument 64.2 The trial court heard PROC., 19.03(a)(2). § CRIM. Art. TEX. CODE 2. See TEX. CODE See PEN. seq. et. disappeared; he application denied the nis shoes when the motion and bridge.3 child’s was found near without and this Appellant followed. now contends Subsequent events or, that he to DNA is entitled *3 alternative, evidentiary hearing the to an 12, 1999, prosecutor’s the On October with live witnesses to determine whether typewritten pur- letter office received shall testing. he is entitled We letter, In written Zavala. portedly affirm. falsely that had ac- Zavala claimed was not cused —that Background
A. child was killed and had present when the nothing to do with the crime. Zavala leading 1. Events to trial murder, responsibility for the claimed sole victim, child, a three-year-old sexually but also said that she did not 9,1993, July last seen alive on with Veroni- assault the child. day, ca Zavala. The next the child’s naked in Appellant has executed an affidavit floating was found in a reservoir. In testing. of his motion for DNA support DeWitt, Marguerite Dr. a pathologist, tes- affidavit, he states that he is innocent tified that the child had in the water been of the crime and that he was “beaten and eighteen thirty-six hours but did not his con- making videotaped coerced” into Instead, drown. the cause of death was claim fession. This coerced confession ligature strangulation. DeWitt further in appli- not raised on direct observing testified to two tears in the corpus cation for writ of habeas child’s anus. She concluded that these Article 11.071 the Texas of Crimi- Code were due to an penetration tears external nal Procedure. by something larger than the opening finger were consistent with an adult’s affidavit, In attor- an one of the defense penetrating That anus. same neys quoted allegedly excerpt an what 10th), (July being Zavala in- confessed In deposition from a of Dr. Raul Garza. in implicated appel- volved the murder and excerpt, opined placing Dr. Garza that lant. human finger the anus of another being shedding would result skin July appellant gave
On 11th a video- analysis from could be cells which DNA confession, taped oral in which he admitted made. strangling penetrating child and to the child’s rectum with a In finger. addi- hearing At the on the motion for DNA strangulation damage tion to the that, testing, attorney said prosecuting anus, to the child’s several other details of conducting investigation, after he had appellant’s confession were corroborated police depart- determined that neither the by independent evidence: prosecutor’s possessed ment nor the office any biological
the child’s underwear had been cut off material related to the case. that all single prosecutor and tied around his neck with a further remarked knot; biological material was in the existing the time of death was consistent Although by appellant; possession with the time stated of the trial court. pos- claimed that the wearing child had been shorts and ten- defense counsel State 71,916, lished). slip op. at 3. Rivera v. No. 6, 1996) (unpub- (Tex.Crim.App., March testimony not been vala’s live order to determine
sessed test had defense, credibility. coun- her turned over to the defense prosecutor’s did not controvert the as- sel currently possessed regarding
sertion who B. ANALYSIS biological the relevant material. Hearing findings4 3. The trial court’s claim that We first address The trial court found confes- he is entitled to an compelling sion to be and credible evidence would hear which the court guilt that was corroborated other testimony. initially live note that We *4 Further, evidence. the trial court found question at Keeter is not relevant to the recanting “not statement be That a motion for hand. case involved and no evidence of innocence.” credible appellate pro- new trial under the rules of appellant trial that court concluded cedure, un- a motion for DNA testing. entitled DNA Further, Chapter der 64.8 the case did party a not concern when and whether Appellant’s 4. claims hearing simply entitled to a live but ad- Appellant contends that he is entitled to was within dressed whether the court (1) following DNA on the items: deny its the motion based discretion to
fingernail clippings
appellant,
taken from
upon the evidence before it.9
(3)
(2)
Zavala,5
a
kit taken from
any samples taken from the victim’s anus.6
To determine whether
test result— n was entitled to
hearing
a
with live wit
argues
negative
He
that a
nesses,
In
in
we must examine
64.
showing
present
that his DNA is not
statute,
interpreting a
we are limited to its
any
kit and
and that the
language
in
is am
present
plain meaning
child
is not
unless
victim’s DNA
meaning leads to ab
biguous
plain
to show
or its
fingernail clippings
tend
—would
innocence,
Legislature
that
could not
especially
light
of Zava-
surd results
Arti
Nothing in
allegation
possibly
recantation and his own
that
have intended.10
la’s
requires
hearing
any
He
cle 64.03
a
sort
authorities coerced his confession.
determination
concerning
in Keeter v.
the trial court’s
also contends that our
Za-
a
is entitled DNA
requires the trial court to hear
of whether
defendant
State7
only
but was
the child's
be exhumed
4. We summarize and include
those find-
might
previ-
have
ings
appeal.
requesting any samples that
relevant to the current
anus.
ously been taken from the child’s
Although appellant claimed in his video-
taped
that he and Zavala had con-
confession
(Tex.Crim.App.2002).
7.
post-test cision, bifurcated the familiar employ we pre-test require we find the failure to do articulated Guzman standard of review Leg- an absurd result. hearing to be afford almost total deference we State: have evi- could believed islature determination of issues to a trial court’s under Article 64.03 dentiary arising issues affidavits, application-of-law-to-fact which could historical fact and could resolved credibility and demean- person the convicted that turn on be submitted issues hand, or, applica the other along with his motion. On de novo other while we review prior- not have person convicted issues.17 Under tion-of-law-to-fact *5 under generated test results standard, access to are reviewed following the issues so, 64.04; Legislature provided the Article findings: to the trial court’s with deference a forum hearing, give parties a the recantation, (1) credibility of relating matters to submit (2) affidavit credibility appellant’s appel- conclude that the test results. We him beat physically that officers claiming to a lant was not entitled (3) whether confessing, and into Article 64.03. and is a DNA evidence exists claimed Although there tested. condition to be Testing are fact issues that subsidiary may be
To obtain DNA ques- ultimate deferentially, the reviewed 64, must requirements several be probability a reasonable tion of whether requirements find two of met.13 those We DNA tests would exculpatory exists (1) ... to be relevant here: “the evidence application-of-law-to- is an prove innocence making in a still exists and is condition turn credi- that does not on question fact (2) con testing possible,” and “the and is therefore re- and demeanor bility preponder person victed establishes appel- turn to de novo. now viewed We evidence that ... a reasonable ance of the claims. lant’s person exists that probability the existence of concedes The State or convicted prosecuted not have been kit,18 rape but clippings and fingernail had been obtained exculpatory results 16. Id. passim. Art. 11. See 85, (Tex.Crim.App.1997). 89 17. 955 S.W.2d 64.04.
12. See Art.
appellant has not
contends that
18. The State
64.03(a).
See Art.
samples
anal
kit includes
proven that the
could not
of the kit
and therefore DNA
64.03(a)( )(A)(i)
(2)(A).
&
disprove
Art.
1
statement
used to
with Zava-
that he had
sex
his confession
unnecessary
(Tex.
this issue is
Resolution of
la.
75 S.W.3d
15. Kutzner
case; we will assume
disposition of the
Crim.App.2002).
negative
rapé
result from the
kit
samples
does not concede the existence of
could
taken from the victim’s anus. Defense
bearing
appellant
have a
on whether
and
argument
intercourse,
counsel conceded at oral
that he
it
Zavala had sexual
but would
did not know whether
from the
not indicate innocence of the
mur-
and, having
victim’s anus existed
failed to
of the child.20
der
issue,
given
even brief the
has not
negative
Even if one concluded that
ex-
Court reason to believe this evidence
supplied
very
weak
Moreover,
existing
ists.
because all
bio-
inference,
such
inference would not
logical samples relevant to the case are
outweighing appellant’s
come close to
con-
(having
trial court
possession
of the
Not
admit to
fession.
evidence), appellant
been admitted into
sexually assaulting
murdering
provide
able
record refer-
ought to be
child, but his sexual
admissions
assault
exists, if in
ences to show that the evidence
by autopsy results
were also corroborated
fact it does.
showing injury to the victim’s anus. And
regard
fingernail clippings
With
to the
although appellant claims that his confes-
kit,
has failed to
involuntary
because was beaten
sion
a reasonable
that excul-
him,
against
the trial court found
out
results would
his innocence.
patory
trial,21
him on that claim at
and he failed to
Zavala did not admit her involvement or
raise such a claim on direct
implicate appellant
until the
after the
habeas
application
corpus.
for writ of
-possibly
child died. Even more time—
Moreover, Zavala’s recantation does not
eighteen
elapsed
hours or
be-
more19—
veracity
doubt on the
cast
tween
time of the child’s death and the
*6
autopsy
confession.
results are
While
kit
Zavala
time a
was obtained from
confession, they
appellant’s
consistent with
appellant’s fingernails
clipped.
and
were
in her
assertion
written
contradict Zavala’s
presence
of the child’s DNA
While
sexually
child
recantation that the
appellant’s fingernails
could indicate
Also,
been convicted of
having
DNA would not
assaulted.
guilt, the absence of such
Moreover,
best,
regard
murder with
this crime
indicate innocence.
at
simply
arguendo
cate
it could
mean
has raised a fact issue
innocence because
argument, de-
regard
samples
deposited.
none was
In oral
with
to the existence of anal
suggested that the absence of
fense counsel
in the
kit.
presence of
appellant’s DNA and the
case,
exculpatory.
published opinion
samples
In a
in Zavala’s
DNA in anal
that,
Appeals
suggestion
upon
Presumably,
of
recited
while Zava-
is based
the Court
that,
by police
assumption
questioned
on the
the water did
wash
la was
DNA,
disappeared,
away
did not admit her
not have
victim
she
Zavala's
then it should
implicate appellant
away appellant's
either. Aside
until the
washed
DNA
involvement
assumption
day,
next
after the child's
had been
that such an
from
fact
correct,
presence
Zavala's
necessarily
that she claimed to
of
found.
It
then
appellant. See
her writ-
be a victim of
Zavala v.
in the child would contradict
DNA
recantation,
she
that she
to lose Further, pur- her recantation the murder. of the sexual as- ports exculpate her Texas. The STATE of sault, might exculpate in turn her which The trial court disbe- No. 1865-00. capital murder. good and had
lieved Zavala’s statement Texas, Appeals Court of Criminal ad- doing Finally, so. Zavala reason En Banc. recantation that she mitted in her written stories given eight had different previously Nov. police.22 the incident to the
about pre-
Appellant has failed of the evidence a reasonable
ponderance DNA tests trial, the outcome of his change innocence.
much less Conse-
quently, he is not entitled to a affirmed.
The trial court’s order is
HERVEY, J., concurring filed PRICE, JOHNSON,
in which
KEASLER, JJ., joined. J.,
HERVEY, concurring opinion filed a PRICE,
in which JOHNSON and JJ.,
KEASLER, joined.
I prohibiting do not read 64 as convicting exercising its dis- court from evidentiary hearing
cretion to conduct purpose
with for the of re- live witnesses issues under Article Texas
solving Procedure. these
Code Of Criminal With
comments, join opinion. I the Court’s Zavala,
22. See also S.W.2d at 721-722.