Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Newell, Keel, Walker, and Slaughter, JJ., joined.
On Appellant's behalf in this capital murder case, the Office of Capital and Forensic Writs (OCFW) seeks DNA testing on a power cord that was wrapped around the victim's neck. OCFW contends that the power cord could be analyzed for touch DNA and that such an analysis could show that someone other than Appellant used the murder weapon. To meet its burden to show that an exculpatory result on such a test would make a difference in Appellant's case, OCFW argues that the evidence connecting Appellant to the murder was weak. In support of this argument, OCFW points to the lack of physical or forensic evidence connecting Appellant to the murder, and OCFW claims that Appellant's confession and other testimony against him is unreliable. We conclude that OCFW has not shown by a preponderance of the evidence that Appellant would not have been convicted if exculpatory results had been obtained in the testing that is
A. Trial Evidence
The evidence at trial shows the following: The victim (Melanie Billhartz) and Ted Murgatroyd were good friends. Murgatroyd and appellant were acquainted through mutual friends and because they associated with the "same crowd," primarily at a drug house in El Paso. Appellant was the District Captain of the Aryan Circle gang in El Paso while Murgatroyd was a prospect.
On October 28, 2002, Murgatroyd encountered Billhartz when she pulled up in front of the drug house. Murgatroyd asked Billhartz to take him to a convenience store, and she let him drive, with her as a passenger. On the way back from the store, Murgatroyd made a sarcastic comment, and Billhartz "flipped out" and started hitting him and screaming at him to get out of her truck. Murgatroyd stopped the truck, and as he was attempting to leave the vehicle, Billhartz hit him in the face and jumped on him. As he put his hand up, he struck her on the lip. Billhartz then drove to the house, with Murgatroyd following on foot. When Murgatroyd reached the house, Billhartz was sitting in her truck, parked in front of the house.
Murgatroyd's associates, including appellant, who believed that Murgatroyd had attacked Billhartz, came out to talk to him. While Billhartz remained in the truck, they discussed the situation. The dilemma that this group faced was that Billhartz wanted to call the police and report an assault by Murgatroyd. But when the police were mentioned, Appellant stated his disapproval of this possibility and his intention to kill the victim. However, no other member of the group agreed with the idea of killing Billhartz, and Appellant became upset. Because the other members of the group were opposed, Murgatroyd "assumed it was a dead issue." According to Murgatroyd, Appellant had wanted to kill Billhartz to prevent the discovery of the drug house.
Murgatroyd did not see Appellant again until three to five hours later, when Appellant pulled up to the drug house in Billhartz's truck, with her body in the back of the cab. Chase Hale saw Appellant return with Billhartz's truck, and Appellant told Hale to stay away from it because appellant had just killed Billhartz. Appellant then ordered Murgatroyd to pick up a shovel and machete in order to go bury the victim. After driving to New Mexico, Appellant ordered Murgatroyd to cut off the victim's fingers to prevent any DNA from being found under her fingernails. Appellant then dumped the body in New Mexico, but Murgatroyd was under the impression that he took the victim's fingers with him.
The next day,
On November 23, Murgatroyd led the authorities to the victim's body and gave them a written statement about the events he was involved in. That same day, Appellant was apprehended when a Hale County deputy sheriff stopped him in Billhartz's truck. Appellant initially stated that he was buying the truck from his girlfriend. He subsequently denied murdering Billhartz and claimed that he had dropped her off in Juarez, Mexico, and borrowed her truck.
On November 25, Appellant confessed to the offense to Detective David Samaniego of the El Paso Police Department. According to Detective Pantoja of the El Paso Police Department, when he met with Appellant, Appellant was advised of his rights, waived his rights, and never requested the presence of an attorney. Further, Pantoja testified that while appellant mentioned that he was taking medication, he never requested the medication.
Among the details contained in Appellant's confession was the fact that Appellant had used an "extension cord" to strangle the victim and that the cord was wrapped around the victim's neck several times. Appellant's confession stated that he got the extension cord from the drug house. The confession also stated that Murgatroyd used a machete to chop off fingers from the victim's right hand. Detective Samaniego had not been aware at the time of Appellant's interview that any of the victim's fingers had been cut off.
An autopsy showed that a black, three pronged power cord was wrapped around the victim's neck three times and tied tightly. Her nasal bones were fractured, and she had multiple fractures of the lower jaw bone, fractures in her right hand, a fractured rib, cutting or sawing in the fingers area of her right hand, and fingers missing from her right hand.
B. Conviction, Appeal, and Habeas
Appellant was convicted of capital murder
In 2007, attorney Robin Norris timely filed a post-conviction habeas application on Appellant's behalf. In 2008, Appellant advised Norris that he did not wish to pursue further efforts to set aside his conviction and sentence and that he wanted the habeas application to be dismissed. Norris filed a motion to dismiss and a request for a competency evaluation. The habeas court appointed two experts to evaluate Appellant's competency. These two experts determined that Appellant was competent.
In a subsequent letter and at a 2009 habeas hearing, Appellant stated that he no longer wanted to drop his remaining post-conviction remedies. However, expressing dissatisfaction with Norris, Appellant stated that he wished to pursue his remedies on his own. At the hearing, the habeas court conducted an extensive colloquy with Appellant on the dangers of pursuing a habeas application on his own— both because of the potential bar to subsequent applications and because of disadvantages of proceeding without an attorney. Throughout this colloquy, Appellant stated that he understood what he was being told and that he wanted to pursue habeas on his own. And despite repeated warnings from Norris and the habeas court that he might lose his habeas remedy altogether, Appellant maintained that he wanted the habeas application filed by Norris to be dismissed.
The habeas court recommended that the habeas application be dismissed. Deferring to that recommendation, we dismissed the application.
Appellant filed federal habeas proceedings in 2010. The United States district court denied relief and denied a certificate of appealability on all claims.
C. DNA Proceedings at Trial Level
On February 25, 2013, OCFW filed a motion for DNA testing on Appellant's behalf. The motion requested DNA testing of the "ligature" found on the victim's neck. The motion argued that a test for "touch DNA" could show that someone other than Appellant used the ligature to strangle the victim. The motion contended that "[t]here has never been a question about how many people participated in the actual murder of Billhartz (one), or what weapon was used (the cord ligature)." The motion further contended that Appellant's confession "should be viewed in light of his mental state at the time of his confession" and that, because "there were not eyewitnesses to the murder and accounts from witnesses were inconsistent, there is no concrete evidence that [Appellant] committed the murder." The motion also contended that "[a]t a minimum, the DNA test [Appellant] is requesting should show that [Appellant's] DNA is not on the murder weapon" and that "the DNA results can be compared with profiles from other people at" the drug house and can "be run
Appellant signed an affidavit in support of the motion. The affidavit referred to the fact that he had been convicted and alleged that the State had possession of a three-pronged black power cord that had been wrapped around the victim's neck, that the evidence had not been tested, that the evidence was subject to a chain-of-custody rendering DNA testing feasible, and that identity was and is an issue in the case. He also contended that he would not have been prosecuted or convicted if the evidence had been tested before trial and had yielded exculpatory results, and he claimed that he was not making the request for DNA testing to unreasonably delay the execution of sentence or the administration of justice.
In a letter dated October 12, 2013, Appellant asked the trial judge to consider, before setting an execution date, that his attorneys were trying to get relief under Ex parte Medina and to take a look at that case. In Medina, this Court found that the purported habeas application filed by Norris was so deficient that it did not qualify as a habeas application, and consequently, the Court appointed new counsel to file an initial habeas application.
On February 2, 2016, Appellant filed a pro se motion to withdraw the motion for DNA testing and to have an execution date set. On October 3, 2016, Appellant filed a pro se motion to withdraw the motion for DNA testing. In this second pro se motion, he contended that the "chapter 64 motion was filed as a stall tactic in hopes that it would keep this court from issuing an execution date." That same day, he also filed a pro se motion to set an execution date, making the same "stall tactic" allegation. In a letter to the trial judge on October 6, 2016, Appellant referred to the two motions filed a few days earlier and stated, among other things, "I do not like the person I have become, and I need to be put down like the rabid dog that I am. I can't even look at myself in the mirror and face myself."
On March 27, 2017, a hearing was held on the DNA motion, and Appellant attended by teleconference. An OCFW attorney told the trial court that Appellant had attempted suicide three months earlier. The attorney maintained that Appellant's medical records showed "numerous examples of his psychiatric condition deteriorating, basically, during his time at the Polunsky unit." The attorney stated that if
When asked about his thoughts on the DNA motion, Appellant stated, "It's just a waste—its going to be a waste of the Court's time to even pursue it." Appellant subsequently elaborated, "I mean, it's just going to be a waste of the Court's time, you know, because, you know, my DNA is going to be on there. And if it's not, you know, then it's by some miracle. But, you know, that's the murder weapon I used to kill Melanie." With respect to the issue of competency, Appellant stated, "Well, I can guarantee you I'm 100 percent competent." When told that his voice was pretty strong, Appellant replied, "You know, if you're going to send some doctors over here to test me, I can guarantee you they're going to come back with a finding that I'm competent. So that would just be a waste of the Court's time."
The trial court denied the motion for DNA testing. When asked, Appellant affirmed that he did not want to appeal. Nevertheless, OCFW maintained that it wished to appeal on Appellant's behalf because it was in Appellant's best interest.
During the discussion that followed, Appellant stated, "I killed Melanie, and I killed Arturo. And I accept the punishment for it, and I'm ready to get it over with, you know." Appellant further stated, "I feel like I'm—you know, I'm being bullied into either doing what he [OCFW attorney] says or, you know, he is going to file competency on me, you know." Later, Appellant stated, "I apologize to the Court and to them [OCFW], you know, for this stall tactic that I used, you know. But, I mean, hey, they can't be mad at me and want to file competency on me now." The trial court responded that the OCFW attorneys "just want to save your life." Appellant responded, "I understand that, Your Honor, but I'm guilty of this crime. You know, the jury sentenced me to death, and I'm ready for that punishment to be carried out. There's nothing incompetent about, you know, that thinking for me."
Appellant then elaborated further on the issue of competency:
The trial court responded that a competency exam might have to be conducted and "might be of some value." Appellant responded, "Not going to be of any value." The trial court responded that it might be valuable to get a "yes" or "no" on the issue of competency. Appellant responded, "I can guarantee you it is going to be a yes." The trial court stated, "Well, it has been in the past and it may be in the future." Appellant responded, "I don't know what the issue would be now, you know, why we even have to go through competency."
D. Abatement and Remand
On April 20, 2017, OCFW filed a notice of appeal from the denial of the DNA motion. On May 31, 2017, consistent with requests from OCFW, the trial court ordered that Appellant be re-evaluated for competency. This order was over the State's objection. OCFW subsequently filed a motion to abate the appeal for a competency determination and a motion to extend the time to file the appellate brief.
In November 2017, Appellant filed an unsworn declaration, under penalty of perjury, which included the following information:
In August 2018, the trial court filed findings in accordance with our abatement order. The trial court determined that it did not have any authority to order a competency re-evaluation. The trial court also determined that it based its competency re-evaluation order on two facts: (1) the statement by the OCFW attorney that Appellant had attempted suicide, and (2) a Texas Department of Criminal Justice (TDCJ) use of force video showing Appellant acting in a belligerent manner.
A. It has not been shown by a preponderance of the evidence that Appellant would not have been convicted.
To be entitled to post-conviction DNA testing, a convicted person must satisfy the requirements of Chapter 64 of the Code of Criminal Procedure.
OCFW contends that an analysis of the electrical cord for "touch DNA" could yield DNA samples and that the pressure and friction that would occur during strangulation would increase the amount of DNA transferred to a ligature. OCFW also contends that tying the power cord tightly in knots would provide a rough surface that would be more likely to retain and protect skin-cell DNA. OCFW further contends that someone else's touch DNA on the power cord would show that someone else committed the murder. OCFW argues that DNA results implicating a third party can be sufficient to create a greater than 50% likelihood that the jury would not have convicted but acknowledges that other factors could negate such a conclusion.
Whether the DNA of a third party would establish a greater than 50% chance that the defendant would not have been convicted depends on the circumstances of the case.
"Lone Assailant" Theory Is Inapplicable.
OCFW contends that "[i]n this case there is no issue how many killers there were" and that "[t]he ligature is the one piece of evidence that should contain only the DNA of Ms. Billhartz and the lone murderer." Our prior "lone assailant" cases involved sex offenses,
Appellant's case is different because the evidence that suggests a lone assailant is evidence that specifically and necessarily inculpates him. It is simply not possible to conclude from this evidence that there was a lone assailant without also concluding that the lone assailant was Appellant. For example, in his confession, Appellant details the circumstances surrounding his killing of the victim. Those circumstances make it clear that Appellant was the sole murderer. But that requires believing the confession, which entails a conclusion that Appellant is guilty. Murgatroyd's testimony that Appellant returned alone with the victim's body also suggests that Appellant was the sole murderer. But it does so only by specifically linking Appellant to the murder. Likewise, the testimony that Appellant was the only member of the drug-house group that wanted to kill the victim suggests a sole murderer only to the extent it links Appellant to the murder. If there is something wrong with all of this inculpatory evidence—if the various witnesses were not being entirely truthful about who did what—then we really do not know how many people were involved in the offense. Perhaps everyone at the drug house conspired to murder Billhartz, or perhaps Murgatroyd did more with Appellant than help dispose of the body.
And if DNA evidence pointed to someone outside the drug-house group, that fact would just suggest that this other person was involved with Appellant in the murder. The existence of an outsider's DNA might indicate that the other drug-house members were ignorant of this outsider's involvement, but all of the evidence connecting Appellant to the murder would still be probative: he expressed an intent to kill the victim, returned with her dead body, and implicated himself in her murder.
Evidence that merely shows that someone other than Appellant was also involved in the crime does not exonerate
Whether DNA Results Would Show Any Assailant is Questionable.
The State argues that DNA on the power cord would not necessarily belong only to Billhartz and the murderer because at least ten individuals "resided or regularly hung out at the drug house" from which the power cord came and, so, may have handled it at some point. The State is correct. DNA analysis is not as probative when the items tested are not at "a place where only a reasonably limited number of ... DNA contributors would be found."
Even assuming that these issues can be mitigated by the circumstances of using a power cord to strangle someone—pressure and friction causing more DNA to be deposited and knots allowing more DNA to be retained, as Appellant argues—the significant possibility of DNA being deposited by an innocent person reduces the probative value of any exculpatory DNA test result.
Inculpatory Trial Evidence Precludes Appellant from Meeting His Burden.
In the section of its brief addressing the issue of whether a more than 51% chance has been shown that Appellant would not have been convicted, OCFW devotes a great deal of effort to attacking the credibility of various witnesses who implicated Appellant in the murder. OCFW does not, in this section, address the credibility of Appellant's confession. Appellant's confession to the police that he committed the murder is strong evidence of his guilt.
OCFW does address the confession in a prior section addressing whether identity is in issue. OCFW points out that Appellant initially denied any involvement in the murder, but initial denials of involvement in a crime are common in cases in which the perpetrator ultimately confesses. OCFW claims that Appellant has "continuously maintained his innocence" after providing such a confession, but it supplies no record references to support that proposition. Moreover, it is not unusual for a person who confesses to later plead not
In a footnote in its brief, OCFW contends that, at the time of Appellant's confession, "he had been in custody for over fifty-five hours, suffering from lack of sleep and methampetamine withdrawal, and unable to access medication prescribed for mental health reasons." Other than the time of custody, the three record references given do not substantiate these allegations. Record reference 45TRR98 contains nothing related to these allegations, but page 99 contains an affirmative response by Sergeant Henry Cooper to the question "Now, after reading the statements, he became very upset and he talked about being on medication or wanting to know where his medication was; isn't that correct?" Record reference 67TRR17-19 involves testimony from Aimme Quintela, Appellant's female traveling companion when he was stopped in the victim's truck. This testimony indicated that Appellant had stopped using crystal meth the day they left Carlsbad, New Mexico to travel to Lubbock, that Appellant became very tired and pulled over the car to sleep, that a police officer approached and asked for license and registration, and that Appellant's responses did not make sense to Quintela. Record reference 68TRR50 involves argument by defense counsel claiming that Appellant had gone "days, perhaps weeks, without sleeping." OCFW points to nothing in the record to support counsel's assertion, and in any event, points to nothing to suggest that any lack of sleep caused Appellant's confession to be involuntary.
Moreover, the State presented evidence supporting the conclusion that Appellant's confession was voluntary. Police detectives testified that Appellant appeared to be coherent and to understand what he was saying and that Appellant was not emotional or distraught. One police detective also testified that, while Appellant mentioned that he was taking medication, he never requested the medication. There was also testimony that Appellant was advised of his rights and waived them and that the officers made no threats or promises.
In addition, Appellant's statement contained details that matched what the police discovered when the body was found: the power cord being wrapped several times around the victim's neck and fingers having been cut off from her right hand. Especially significant was the fact that the detail about the fingers being cut off was not known to the police interrogator at the time Appellant confessed.
Moreover, the day after the murder, weeks before he confessed to the police, Appellant admitted committing the murder to Donald Frank.
Consequently, even if another person's DNA were found on the power cord, the evidence at trial would still strongly implicate Appellant in the victim's murder. Appellant's confessions to both law enforcement and to Frank tie him to the murder. His knowledge of details matching the victim's body show that he would have at least been involved in the body's disposition, and the effective communication of these details to the police and to Frank supports the other evidence that Appellant
B. It has not been shown by a preponderance of the evidence that the request for testing was not made to unreasonably delay the execution of Appellant's sentence.
Whether the burden has been met to show that the request for testing has not been made to unreasonably delay the execution of sentence is an "inherently fact-specific and subjective inquiry."
OCFW states that the Fifth Circuit denied relief to him on federal habeas shortly before he filed his motion for DNA testing and that his federal habeas case was still pending before the Supreme Court at the time he filed his current motion. He states that he does not have an execution date pending. He contends these factors show that his current motion for DNA testing was not made to unreasonably delay his execution date. We disagree.
OCFW acknowledges that "touch DNA" testing has been around since the early 2000s. Despite that fact, Appellant's attorneys did not ask for such testing at Appellant's trial. Even if we credit OCFW's contention that crucial technology for such testing was developed in 2007
Moreover, in both pro se motions and in his testimony at the DNA hearing, Appellant
OCFW counsel suggested that Appellant was incompetent to decide whether to waive his DNA motion or the appeal of that motion. Assuming, without deciding, that lack of competency to waive death-penalty remedies would be sufficient to preclude us from crediting Appellant's statements regarding the purpose in filing the DNA motion, we reject OCFW's claim. Appellant was determined to be competent to waive post-conviction remedies when he first sought to do so in 2008. In the somewhat similar context of competency to stand trial, we have held that the issue of competency need not be revisited after a prior determination of competency "absent a material change of circumstances suggesting that the defendant's mental status has deteriorated."
The trial court based its decision to order a competency hearing on OCFW's representation that Appellant had attempted suicide and on a TDCJ video showing Appellant acting in a belligerent manner. Neither of these factors shows a material change in circumstances sufficient to justify a competency inquiry. We have indicated in the competency-to-stand-trial context that a suicide attempt does not necessarily indicate a lack of competency.
In his October 6 communication with the trial court, Appellant did say that he had been "broken" by his 24/7 confinement on death row. This statement does not necessarily indicate any lack of competency on Appellant's part. Being depressed by his circumstances is understandable and is a rational response to adverse conditions.
As for belligerent behavior, such behavior by prison inmates is, unfortunately, a common occurrence. It could be fueled by depression arising from the circumstances of incarceration. It does not necessarily indicate a lack of competency, even when combined with the depression and attempted suicide.
We conclude that OCFW has not shown by a preponderance of the evidence that (1) Appellant would not have been convicted if exculpatory results had been obtained in the testing that is now being requested, or (2) that the request for such testing was not made to unreasonably delay the execution of Appellant's sentence. A failure on either showing would be sufficient to deny relief. Consequently, we uphold the trial court's decision to deny testing.
Yeary, J., concurred.