Roy Dale GLOVER, Appellant v. The STATE of Texas, Appellee
No. 01-13-00564-CR
Court of Appeals of Texas, Houston (1st Dist.).
Sept. 25, 2014
443 S.W.3d 858
LAURA CARTER HIGLEY, Justice.
Hector has failed to raise a fact issue demonstrating that the open court guarantee applies to this clаim. See Walters, 307 S.W.3d at 295; Yancy, 236 S.W.3d at 782. We conclude that the original petition was filed outside the limitations period and thus Hector‘s claims in his amended petition are likewise extinguished. See, e.g., In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex.2009) (“[W]e have consistently held that the right of statutory beneficiariеs to maintain a wrongful death action is entirely derivative of the decedent‘s right to have sued for his own injuries immediately prior to his death.“); Maes v. El Paso Orthopaedic Surgery Group, P.A., 385 S.W.3d 694, 698 (Tex.App.-El Paso 2012, pet. denied) (holding that derivative claims, such as claims for loss of parental consortium, are extinguished by running of statute of limitations on injured parent‘s underlying claim); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 144 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (loss of consortium claims are derivative of underlying personal injury action and thus are barred if injured party has no recovery). Accordingly, we need not address Hector‘s arguments regarding whether the open courts doctrine is available for claims based on the wrongful death and survivorship statutes.
We sustain Dr. Gale‘s issue on appeal, and we conclude that the trial court erred in denying her motion for summary judgment.
Conclusion
We reverse the order of the trial court allowing Hector‘s suit to continue and render judgment granting Dr. Gale‘s motion for summary judgment on limitations grounds and ordering that Hector Lucio, both individually and in his capacity as administrator of the Estate of Maria Lucio, take nothing.
William F. Carter, Bryan, TX, for Appellant.
Panel consists of Justices HIGLEY, BLAND, and SHARP.
OPINION
LAURA CARTER HIGLEY, Justice.
Appellant, Roy Dale Glover, filed a motion for post-conviction DNA testing of biological evidеnce. After a hearing, the trial court found no reasonable probability that Appellant would not have been convicted had the results been available at trial. In his sole issue on appeal, Appellant challеnges that finding.
We affirm.
Background
On August 26, 1999, Appellant was charged by indictment with capital murder for the death of Roger Coberly. At trial, the State introduced a number of exhibits, including four statements from Appellant concerning the events surrounding Coberly‘s death. In his first two statements,
The State also offered the testimony of Bruce Shuman. Shuman testified that, on the night of the murder, Appellant had come to his house. It was after midnight. Appellant told Shuman that he was there to “get some clothes and stuff.” Shuman returned to bed but heard Appellant gather some things and leave. When he woke up in the morning, Shuman discovered that a bag he takes with him when he works was missing. The bag contained, among other things, clothes, ropes, and spurs.
The next morning, Apрellant was seen driving Coberly‘s car. Appellant drove the car into a mud pit by Coberly‘s house and could not get it out. He called a wrecker. Appellant did not have cash and gave the driver Coberly‘s computer as collateral.
Police later recovered Coberly‘s car from Sharp in Louisiana. Appellant told police that Sharp had stolen it from him. Shuman‘s bag was in the back of the car. In the bag was, among other things, a lead pipе and a brown towel. Shuman identified the towel as belonging to him. Multiple blood spots were found on the towel, and the blood was tested for DNA. The blood stains were from two “contributors.” The major contributor was Coberly.1 The minor contributor was not identified, but Sharp was excluded.
Police found Coberly on his property buried under a pile of sticks and other wood. A shirt had been wrapped around Coberly‘s body. Shuman identified the shirt as a shirt that had been left by a friend at his house. A neighbоr of Coberly‘s testified that, after the murder, Appellant came by their house asking for a lighter, explaining he intended to burn a brush pile on Coberly‘s property. An autopsy determined that Coberly died from a blunt-force blow to the head, сonsistent with a blow by a lead pipe.
After his conviction, Appellant filed a motion, seeking further DNA testing on the towel found in the bag in Coberly‘s car. As a result of that testing, Appellant was excluded as the minor contributor of blood on thе towel. After a hearing, the trial court made the following findings:
- State‘s Exhibit 98 [the brown towel] had been forensically tested prior to trial and was found to contain blood in various areas, none of which were linked to the defendant;
- Following the Chapter 64 hearing ... defendant was again excluded as a contributor to the blood stains;
....
- The post-conviction DNA testing does not alter the State‘s trial assertions regarding the source of the blood stains on State‘s Exhibit 98;
- There is a considerable additional body of evidence from the trial that implicates the defendant in the death of ... the decedent and supports the conviction of [defendant];
The court finds that the post-conviction DNA results arе not favorable to the convicted person; - The Court finds that if the post-conviction DNA testing results had been available before or during the trial of the offense, there is not a reasonable probability that the person would not have been convicted.
Jurisdiction
The State argues that we lack jurisdiction to consider this appeal, relying on Whitfield v. State, 409 S.W.3d 11, 11 (Tex.App.-Houston [1st Dist.] 2013), rev‘d, 430 S.W.3d 405 (Tex.Crim.App.2014) (Whitfield I). In Whitfield I, we relied on Holloway, an earlier case from the Court of Criminal Appeals, and held that we lacked jurisdiction to review a trial court‘s findings concerning a motion for post-conviction DNA testing. Id. (citing State v. Holloway, 360 S.W.3d 480, 490 (Tex.Crim.App.2012)).
The Court of Criminal Appeals granted Whitfield‘s petition for discretionary review. Whitfield v. State, 430 S.W.3d 405, 407 (Tex.Crim.App.2014) (Whitfield II). On review, the court reversed its holding in Holloway. Id. at 409. Accordingly, “the courts of appeals have been given [legislative] authority to consider the sufficiency of the evidence as well as other grounds of appeal” for post-conviction DNA-testing motions. Id.
Standard of Review & Applicable Law
After a person has been convicted, he can file a motion for forensic DNA testing of certain еvidence containing biological material.
In our review of the trial court‘s findings, “we afford almost total deference to a trial court‘s determination of issues of historical fact and appliсation-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues.” Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002); see also Ex parte Gutierrez, 337 S.W.3d 883, 894 n. 34 (Tex.Crim.App.2011) (citing Rivera). In contrast, “the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an apрlication-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.” Rivera, 89 S.W.3d at 59.
The State argues that, in order to establish that it is reasonably probable that Appellant would not have been convicted with the presence of the DNA test results, Appellant was required to establish that the test results would prove his innocence. This is incorrect.
In 2002, the Court of Criminal Appeals held that, in order to obtain the DNA test, the defendant would have to show there was a reasonable probability that the DNA would prove his innocence. Kutzner v. State, 75 S.W.3d 427, 438 (Tex.Crim.App.2002), superseded by statute as recognized in, Smith v. State, 165 S.W.3d 361, 363-64 (Tex.Crim.App.2005). Three years later, the court recognized that this holding had been superseded by statute. Smith, 165 S.W.3d at 363-64. The bill analysis to an amendment to the statute clarified that “[t]he defendant must prove that, had the results of the DNA test been available at trial, there is a 51% chance that the defendant would not have been convicted.” Id. at 364.
Analysis
Appellant argues that his exclusion as the minor contributor on the towel establishes that, if the DNA test had been admitted at his trial, he would not have been convicted. We disagree.
As an initial matter, we note that the DNA test results are not in confliсt with the test results on the towel that were presented at trial. Appellant was never identified as a contributor to the blood found on the towel. Appellant suggests that, by not excluding him as a contributor, the presence of an unidеntified minor contributor of blood created an inference that he was the minor contributor.
Even if we accepted this argument, proof that Appellant was excluded as the minor contributor, at best, functions only to “muddy the watеrs” of the evidence against him. See id. It does not “affirmatively cast doubt” on his conviction. See id. While it presented evidence that the towel contained the blood of an unidentified minor contributor, the State never relied оn this fact as a basis for conviction. Instead, the State focused on the evidence establishing Appellant‘s presence at the scene of the crime and Appellant‘s confession that he was the sole persоn involved in Coberly‘s killing.
Appellant attempts to point out weaknesses in the evidence surrounding his conviction, such as the fact that Appellant gave four confessions and only implicated himself in one of them. All of this information was before the jury when it found him guilty, however. Excluding him as the minor contributor of blood on the towel would not have changed these claimed weaknesses or made them more relevant.
In certain circumstances, excluding a defendаnt as a contributor to DNA evidence can be considered exculpatory. See Smith, 165 S.W.3d at 364 (holding excluding defendant as contributor of seminal fluid found on female victim after sexual assault could be exculpatory). This is not one of thоse circumstances, however. The towel belonged to Shuman before Appellant took it on the night of the murder. Any number of people could have come in contact with the towel and left blood on it prior to it coming into Appellant‘s possession. See id. (holding excluding defendant as contributor to weapon was not exculpatory when it could have been left on weapon before date of offense). Even if the contributor the DNA were known, this would not create any inference that Appellant was not guilty of the crime.
We hold the trial court did not err by finding that “if the post-conviction DNA testing results had been available before or during the trial of the offense, therе is not a reasonable probability that the person would not have been convicted.” We overrule Appellant‘s sole issue.
Conclusion
We affirm the judgment of the trial court.
LAURA CARTER HIGLEY
JUSTICE