Date: 11-16-2016

Case Style:

Case Number: 01-15-00062-CR

Judge: Rebeca A. Huddle

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Daniel McCrory
Alan Keith Curry
Devon Anderson

Defendant's Attorney: Cheri Lynn Duncan

Description: Brooks was convicted of attempted capital murder in 1981, and this Court
affirmed on direct appeal. Brooks v. State, No. 01-81-0891-CR (Tex. App.—
Houston [1st Dist.] Apr. 14, 1983) (not designated for publication). Brooks
subsequently requested post-conviction DNA testing, alleging it would show that
neither his nor the complainant’s blood was on the knife used to secure the
conviction. The trial court appointed Kelly Ann Smith to represent Brooks in the
post-conviction proceeding.
After some investigation, Smith filed a motion to withdraw. In her motion,
Smith asserted that Brooks was not entitled to post-conviction DNA testing because
identity was never an issue in his case and because exculpatory test results would
not establish that Brooks would not have been convicted. See TEX. CODE OF CRIM.
PROC. art. 64.01 et seq. Smith’s motion explained that Brooks initially sought to
have the knife tested for DNA evidence, but during her investigation, Smith learned
that all evidence remaining in the property room had been destroyed. On further


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investigation, however, Smith learned that the crime lab still possessed fingernail
scrapings from the complainant in Brooks’s case.
Despite the existence of the fingernail scrapings, Smith nevertheless
concluded that Brooks was not entitled to DNA testing because the results of the
testing would not exculpate him given the other incriminating evidence. According
to Smith, her investigation revealed that the complainant in the case had been
stabbed seven times, severely beaten, restrained with a telephone cord, and sexually
assaulted in her home. Following the attack, the complainant identified Brooks as
the attacker and provided the police with his name and address. Smith’s motion
stated that the complainant later identified Brooks as her attacker from a
photographic lineup and the police recovered latent palm and fingerprints left in
blood in the complainant’s house that examiners matched to Brooks. Smith noted
that a mental health evaluation stated that Brooks claimed he acted in self-defense
when stabbing the complainant and that the two engaged in consensual sexual
intercourse.1 Smith noted that nothing suggested that the complainant scratched her
attacker; thus, the absence of Brooks’s DNA or the presence of another’s DNA in
the victim’s fingernail scrapings would not prove Brooks did not sexually assault
1 The mental health evaluation, police offense report, and affidavits referred to in Smith’s motion were not attached to it and are not included in the clerk’s record on appeal, which also does not contain the reporter’s record from the jury trial.


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and stab the complainant. Id. Accordingly, Smith requested that the trial court grant
her leave to withdraw.
The trial court granted Smith’s motion and denied Brooks’s request for post
conviction DNA testing. In its order, the trial court took judicial notice of the clerk’s
file and found that Brooks was not entitled to DNA testing because (1) identity was
never an issue and (2) exculpatory test results from the victim’s fingernail scrapings
would not establish that Brooks would not have been convicted. Brooks appealed.
Discussion
In two issues, Brooks contends that (1) the trial court erred in denying his
motion or, in the alternative, (2) he received ineffective assistance of counsel in the
post-conviction proceeding.
A. DNA Testing
1. Standard of Review
We review the trial court’s decision with regard to DNA testing using a
bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App.
2002). We afford almost total deference to the trial court’s determination of
historical fact and application-of-law-to-fact issues that turn on credibility and
demeanor, while we review de novo other application-of-law-to-fact issues. Id.


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2. Applicable Law
Under Chapter 64 of the Texas Code of Criminal Procedure, a convicted
person may file a motion for DNA testing in the convicting court. TEX. CODE OF
CRIM. PROC. art. 64.01(a-1). The motion must be accompanied by a sworn affidavit
containing supporting facts. Id. The convicting court may order DNA testing if it
finds that: (1) evidence still exists, is in a condition making DNA testing possible,
and is subject to a chain of custody sufficient to establish that it has not been altered;
(2) identity was or is an issue in the movant’s case; and (3) the movant established
by a preponderance of the evidence that he would not have been convicted if
exculpatory results had been obtained through DNA testing and the request is not
made to unreasonably delay the sentence. TEX. CODE OF CRIM. PROC. art. 64.03(a);
Prible v. State, 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008); Thompson v. State,
95 S.W.3d 469, 471 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Under article 64.03, a convicted person is not entitled to DNA testing unless
he first shows that there is “greater than a 50% chance that he would not have been
convicted if DNA testing provided exculpatory results.” Ex parte Gutierrez, 337
S.W.3d 883, 889 (Tex. Crim. App. 2011) (quoting Prible, 245 S.W.3d at 467–68);
see also Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). This burden
is met if the record shows that exculpatory DNA test results, excluding the defendant
as the donor of the material, would establish, by a preponderance of the evidence,


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that the defendant would not have been convicted. Gutierrez, 337 S.W.3d at 889.
“A ‘favorable’ DNA test result must be the sort of evidence that would affirmatively
cast doubt upon the validity of the inmate’s conviction; otherwise, DNA testing
would simply ‘muddy the waters.’” Gutierrez, 337 S.W.3d at 892 (citations
omitted).
3. Analysis
Brooks argues that he would not have been convicted if exculpatory DNA test
results were obtained from the complainant’s fingernail scrapings. He asserts that
such results would contradict the complainant’s testimony that Brooks was her
attacker and create a reasonable doubt about the attacker’s identity.
However, Brooks does not articulate how the absence of his own DNA in the
complainant’s fingernail scrapings would be exculpatory in light of the strong
evidence that implicates him, including the evidence that the complainant was
restrained with a telephone cord during the attack. There is no evidence that the
complainant scratched her attacker such that DNA testing of her fingernail scrapings
would provide evidence indicative of her attacker’s identity. Additionally, it is
undisputed that the complainant identified Brooks as her attacker and provided the
police with Brooks’s name and address. It is also undisputed that Brooks’s palm
and fingerprints were found in blood in the complainant’s residence following the
attack.


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In Ex parte Gutierrez, the Court of Criminal Appeals affirmed the denial of a
motion for post-conviction DNA testing and held that the appellant had failed to
establish by a preponderance of the evidence that he would not have been convicted
if exculpatory test results were obtained from the victim’s fingernail scrapings. 337
S.W.3d at 900–01. The Gutierrez court reasoned that there was no evidence that the
victim was able to hit or scratch her murderers with her fingernails; so, even if DNA
was found under her fingernails, there was no way of knowing whether it came from
her murderers. Id. at 901. Ultimately, the Court found that DNA testing would
“merely muddy the waters” because a third-party match to the requested biological
evidence would not overcome the “overwhelming evidence” of appellant’s
involvement in the murder. Id. at 901–02.
Here, as in Gutierrez, there is no evidence that any DNA found in the
complainant’s fingernail scrapings belonged to her attacker. Thus, even if the
complainant’s fingernail scrapings were tested and produced evidence of a third
person’s DNA, excluding Brooks as the donor of the material, such results would
“merely muddy the waters.” See Gutierrez, 337 S.W.3d at 901; cf. Blacklock v.
State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007) (reversing denial of motion
for DNA testing where appellant showed by a preponderance of evidence that
victim’s lone attacker would be donor of material for which appellant sought testing
and thus, exculpatory test results would establish appellant’s innocence).


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Given the other incriminating evidence—namely, the complainant’s
identification of Brooks as her attacker and Brooks’s palm and fingerprints in blood
at the crime scene—we cannot conclude by a preponderance of the evidence that
Brooks would not have been convicted if exculpatory test results from the
complainant’s fingernail scrapings were obtained and presented at trial. See
Gutierrez, 337 S.W.3d at 902. Thus, we do not find that the trial court erred in
denying Brooks’s motion for post-conviction DNA testing. See Rivera, 89 S.W.3d
at 60–61 (affirming denial of motion for DNA testing and finding evidence
insufficient to establish that absence of DNA under murder victim’s fingernails and
negative result from rape kit would have changed outcome of trial); Thompson, 95
S.W.3d at 471 (affirming denial of motion for post-conviction DNA testing and
holding that even if negative test results were to supply an exculpatory inference,
such an inference would not conclusively outweigh other evidence of appellant’s
guilt).
We overrule Brooks’s first issue.
B. Ineffective Assistance of Counsel
1. Applicable Law
To prevail on an ineffective assistance of counsel claim, an appellant must
first prove by a preponderance of the evidence that his counsel’s representation fell
below the objective standard of professional norms. Strickland v. Washington, 466


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U.S. 668, 687–88, 104 S. Ct. 2052, 2064–65 (1984); Bell v. State, 90 S.W.3d 301,
307 (Tex. Crim. App. 2002) (en banc). He must then show that this deficient
performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Appellate review of defense counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance. See Bell, 90 S.W.3d at 307. The record on a direct appeal
will often be inadequate to determine whether counsel’s representation was so
deficient and so lacking in tactical or strategic decision-making as to overcome the
presumption that her conduct was reasonable and professional. Id.
The Court of Criminal Appeals has not yet decided whether an appellant may
raise a claim of ineffective assistance of counsel in a direct appeal from a denial of
a motion under Chapter 64. See id. However, in Bell, the Court concluded that
assuming, arguendo, that such a claim may be raised, it would be analyzed under
the Strickland test. Id.
2. Analysis
Brooks asserts that if his motion for post-conviction DNA testing is
unsupported by sufficient evidence, his court-appointed counsel Smith was
ineffective because she failed to file supporting affidavits and other documents she
reviewed in the course of her investigation. He argues that Smith should have put


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“into the record all evidence that would support the client’s motion for DNA testing,
even though she concluded that it was insufficient to entitle him to relief.”
We have previously stated that “a convicted person is, by statute, entitled to
counsel during a proceeding under Chapter 64 of the Code of Criminal Procedure,”
but “a legislative decision to provide appointed counsel for a prisoner mounting a
post-conviction collateral attack does not trigger a constitutional right to effective
representation in that proceeding.” Kitt v. State, No. 01-04-00633-CR, 2005 WL
2385619, at *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2005, pet. ref’d).
However, assuming, arguendo, that we were to recognize an ineffective assistance
claim in connection with representation in a Chapter 64 proceeding, Brooks would
then be required to establish by a preponderance of the evidence that Smith’s
representation fell below the objective standard of professional norms and
prejudiced his defense. See Bell, 90 S.W.3d at 307.
Brooks fails to explain how Smith’s alleged error—failing to enter the
affidavits and documents she reviewed during her investigation into the record—
impacted the trial court’s ruling on his motion for post-conviction DNA testing. The
trial court denied Brooks’s motion because it determined that identity was not an
issue and exculpatory DNA test results would not establish that Brooks would not
have been convicted. Brooks fails to articulate what information, if any, the alleged
missing documents contain that would have altered the trial court’s conclusion.


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Specifically, he does not assert how the documents would establish (1) that identity
is or was an issue in the case and (2) that exculpatory DNA test results from the
complainant’s fingernail scrapings would exonerate him. Thus, Brooks does not
explain how he was prejudiced by Smith’s performance.
Because Brooks has not shown that Smith’s actions prejudiced the outcome
of his motion for DNA testing, he fails to satisfy the second prong of Strickland.
Accordingly, we hold that even if Brooks could raise an ineffective assistance claim
in his post-conviction proceeding, he has failed to establish that he received
ineffective assistance. See Bell, 90 S.W.3d at 307 (finding no ineffective assistance
of counsel in Chapter 64 proceeding, noting that “the record does not show that the
alleged errors had any impact on the court’s ruling, nor does it show that the claimed
‘missing’ evidence existed or even what evidence appellant wished counsel to
introduce”); see also Williams v. State, No. 01-04-00772-CR, 2005 WL 678873, at
*5 (Tex. App.—Houston [1st Dist.] March 24, 2005, pet. ref’d) (not designated for
publication) (finding insufficient evidence to establish by a preponderance of
evidence that counsel’s representation in post-conviction Chapter 64 proceeding was
deficient); Eubanks v. State, 113 S.W.3d 562, 566–67 (Tex. App.—Dallas 2003, no
pet.) (concluding that even if defendant could bring an ineffective assistance of
counsel claim related to his post-conviction motion for DNA testing and assuming
counsel performed deficiently, evidence did not establish defendant was prejudiced).

Outcome:

Accordingly, we overrule Brooks’s second issue.

We affirm the trial court’s judgment.

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