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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-74,930
CHARLES D. RABY, Appellant
v.
THE STATE OF TEXAS
Johnson, J.,
delivered the opinion of the Court, joined by Meyers, Price,
and Holcomb, J.J. Hervey, J., filed a dissenting
opinion, in which Keller, P.J., Keasler, and
Cochran, J.J., joined. Cochran, J., filed a
dissenting opinion. Womack, J., concurred in the result.
Keller, P.J., Keasler, Hervey, and Cochran, J.J.,
dissented.
O P I N I O N
Appellant appeals from a trial-court order
denying post-conviction DNA testing. Tex. Code Crim. Proc., Ch.
64 (2001). In a hearing before the trial court, appellant sought
testing of four items:
(1) bloody ladies' underwear found next to
the victim's body;
(2) the nightshirt worn by the victim at the
time of the murder;
(3) victim's fingernail clippings; and
(4) a hair found on the victim's hand,
identified as belonging to the victim's grandson.
Appellant contends that DNA testing could
prove his innocence.
(1) In support
of his motion, appellant attached the affidavits of Dr.
Elizabeth A. Johnson and Dr. Paul Radelat.
(2) The state
concedes that three of the four items are in its possession,
(3) but argues
that appellant has not met the requirements of Chapter 64.
Specifically, the state does not believe that
identity was or is an issue, that appellant has established by a
preponderance of the evidence that a reasonable probability
exists that he would not have been prosecuted or convicted if
exculpatory results had been obtained through DNA testing, or
that the appellant has shown that his request is not for the
purposes of delaying the execution of his sentence.
Appeal under Chapter 64 in capital cases is
directly to this court. Tex. Code Crim. Proc., Article 64.05. In
reviewing a convicting court's order on a motion for DNA testing,
this court uses the bifurcated standard of review articulated in
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).
Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App.
2002)(citing Guzman at 89).
The lower court's findings of fact are
entitled to deference, as are any applications of law to fact
that turn on credibility and demeanor. All other applications of
law to fact are subject to de novo review, including
the ultimate issue of whether a reasonable probability exists
that exculpatory DNA tests would prove appellant's innocence.
Id.
On appeal, the state argues that the
appellant has failed to show, as required by Article 64.03, that
the request for DNA testing was not made to unreasonably delay
the execution of sentence or administration of justice. The
record shows that the trial court has never set an execution
date for appellant. Appellant originally filed his motion for
DNA testing in November 2002, when his right to appeal was not
yet exhausted. See Skinner v. Texas, 122 S.W.3d 808,
811 (Tex. Crim. App. 2003). The motion remained pending in the
trial court for one year and nine months.
(4) On these
facts, we do not find that the request was made for the purpose
of delay.
Facts
Appellant was convicted of killing Edna
Franklin, who lived in a small house with her two grandsons,
Eric Benge and Lee Rose. Benge and Rose testified that they left
Mrs. Franklin at home alone shortly before 4:00 p.m. on October
15, 1992.
Benge testified that he returned later that
evening and found the front door unlocked and open, the back
door open, the lights out, and Mrs. Franklin dead in the living
room. Hair was recovered from each of her hands. She was nude
from the waist down and had been stabbed to death. The medical
examiner could not determine if she had been sexually assaulted.
The house had been ransacked. The contents of Mrs. Franklin's
purse and other personal items were scattered around her bedroom.
Sergeant Allen testified that the home was
dilapidated and had not been cleaned in some time. Eric Benge
testified that the back door was kept closed and the front door
was always locked. On the day of the murder, Eric Benge had
nailed a screen over a window in his bedroom that was sometimes
used as an entrance by the grandsons, appellant, and at least
one other person, Edward Bangs.
When Benge returned home, he found that the
screen had been removed from the window. Police found footprints
below the window, a screwdriver on the window, and a fresh wood
chip. They concluded that the killer entered Mrs. Franklin's
home through the bedroom window.
Shirley Gunn, who lived near Franklin,
testified that the appellant came by her house around 5:00 p.m.
looking for Gunn's son and another man. Gunn stated that
appellant used a pocketknife to clean his fingernails and that
he smelled of alcohol. He also asked Gunn if she thought her son
might be at Franklin's home.
Mary Alice Scott testified that she went to
answer a knock at her back door some time between 7:00 p.m. and
7:45 p.m. and saw the back of a person who was wearing jeans and
a black jacket,
(5) and who she
believed to be Mr. Raby, walking away from her in her driveway.
She described the lighting conditions as "dusk." Scott had seen
Raby in her living room a week or two before the murder.
Prior to that, it had been more than two
years since she had seen him. She was confident in her
identification because "[n]one of those boys were built exactly
like [him] . . . I'm talking about his size and his legs, the
way he walks, low-built in the back end."
(6)
Leo Truitt lived in a house directly behind
Franklin's. At about 8:00 p.m. on October 15, his brother-in-law,
Martin Doyle, saw a man walk through Truitt's yard, jump over
the front fence, and walk away. Doyle and Truitt pursued the man
in Truitt's car, and Truitt confronted the man, inquiring what
he was doing in Truitt's yard. Doyle saw only half of the man's
face. After this conversation, the unidentified man left on foot.
Martin Doyle testified that the man was a
white male, 6 feet or slightly under, maybe 510 with a medium
build. Doyle could not positively identify Mr. Raby as the man
he saw that evening.
Truitt did not testify. However, at the
suppression hearing, Houston Police Department Homicide Sergeant
Bill Stephens stated that Mr. Truitt had told him "that he had
observed a white male that he described as early 20's, 5-7 to
5-8, 155 to 165 pounds, with dark-colored hair but not black;
medium-short, as far as the hair. No glasses, no facial hair."
(7) Truitt
neither named appellant nor picked him out of a lineup. Sergeant
Allen testified that Mr. Raby was approximately 5 7 and had a
medium build. His "guesstimate" was that the defendant weighed
between 150 and 160 pounds.
When questioned by police about possible
perpetrators, Benge named both appellant and Edward Bangs.
Investigators included the information from Benge in their
reports.
Benge also stated that it may have been
Edward Bangs, W/M 21-23, who is a drug addict and who has been
helping to paint [the house]. Benge stated that Bangs stole his
paycheck and shotgun a while ago and that Bangs is the only
other person he can think of that may have done this. Benge
stated that Bangs and Raby would be the only ones that would
know about the SE bedroom window facing East that has a broken
pane and can be easily opened.
Officer also spoke to witness across the
street . . . at approx 1750-1800 hrs she saw a W/M on East side
of [complainant's residence] by SE bedroom window looking like
he was taking the screen off . . . she did not think anything of
it because [complainant] had been having house painted and that
she thought that was what [suspect] was doing . . . she did not
get a good look at all at [suspect].
(8)
The only physical description of Bangs was
provided by Benge in court.
Q: [PROSECUTION] And compared to the
Defendant, is he [Bangs] bigger or smaller?
A: [BENGE] He's bigger.
Q: About how big is Mr. Banks [sic]?
A: I'd say he's about -from Mr. Raby himself,
he's probably about 4 inches taller.
Q: How big is Mr. Banks [sic]?
A: He's a big person. He's ever [sic] bit as
big as I am.
Q: And how tall are you?
A: I'm 6-1.
Q: Now, for the record, how tall is Mr. Raby,
if you know?
A: I don't know. I'd say approximately maybe
5-11.
[The Court has Mr. Raby and Mr. Benge stand
facing one another.]
Q: How much taller than he [Raby] would you
say you are, Mr. Benge?
A: I'd say probably about 3 inches, 4 inches
taller than he is.
Q: Okay. You can have a seat.
A: (Complies.)
Q: And how much do you weigh?
A: I weigh 255.
Q: For the record, would you agree that Mr.
Raby is considerably lighter than you?
A: Yes, sir.
(9)
Benge testified that he had last entered the
house through the window three days before the trial and that
his cousin, Lee Rose, had used the window as an entrance "on
several occasions." Rose testified that he and Benge used the
window as an entrance to the home. Rose claimed that he was at
work during the murder. However, Mary Alice Scott, the neighbor
who lived near the victim's home, testified that her grandson
and Lee Rose "were together, running in and out" on the day of
the murder.
(10)
Eric Benge testified that, when he left work
that evening, he went to a friend's house to shower before going
to his girlfriend's house, where he stayed until 9:45 p.m. He
discovered his grandmother's body at approximately 10:00 p.m. He
testified that the front and back doors to the house were open
and that the sheet that hung between the living room and the
kitchen was still in place and he had to push it aside to walk
into the kitchen. Benge also testified that when he turned his
grandmother over he got blood on his hands and that he was
pretty sure he left blood on the phone. However, police found no
blood evidence anywhere in the home other than in the immediate
vicinity of the body. Sergeant Allen with Houston Police
Department testified
It was my opinion that the suspect had wiped
his hands or cleaned his hands, because there was no blood found
on the items that were scattered on the bed. The purse itself
had no blood on it. There was no blood on any of the papers,
credit cards or anything within the bedroom area. Additionally .
. . the door we felt that the suspect had left the residence,
was the rear door of Ms. Franklin's bedroom. There was no blood
located at this exit point.
(11)
Allen testified that Benge had told the
police that he had washed his hands after attempting to revive
his grandmother.
Hair samples were collected from the crime
scene. None were consistent with the appellant's hair. The hair
on Franklin's right hand was consistent with her own hair, while
the hair in her left hand was consistent with the hair of one of
her grandsons.
(12) The blood
under the victim's fingernails was typed, and the results showed
types AB and B. Franklin's blood type was A, while appellant's
blood type is O.
(13)
Sergeant Allen testified that Ms. Franklin's
injuries were inflicted with a knife blade as short as two
inches long and sharpened on only one side. A paring knife was
found in Eric Benge's bedroom. It was dusted for prints, but
none were recovered. There was no blood visible on the knife,
and no further analysis was conducted on it.
Police obtained a warrant for appellant's
arrest on October 16, the day after the murder. In an attempt to
find appellant, they went to the home of his girlfriend, Mary
Gomez. At her home, they recovered a black jacket belonging to
appellant. No evidence that connected appellant to the crime was
recovered from the jacket.
On October 19, 1992, appellant signed the
following statement:
I am at the Houston Police Department's
homicide division. Today is Monday, October 19, 1992, and it is
approximately 1:25 p.m. Sergeant Allen read me my rights on two
occasions this afternoon. I fully understand my rights and I
have gave up [sic] my right to remain silent and right to an
attorney. I have not been threatened or promised anything in
return to make a statement. I told Sergeant Allen that I not
[sic] been at Lee's house on Westford Street on Thursday night.
I was not telling the truth at first, because I was scared. I
decided to tell the truth and get this over with.
I am living with my mother at 3414 Cedar Hill
in Houston, Texas. My telephone number is 987-1418 and 987-8869.
I am unemployed at the present time. I can read and write the
English language. I can see this statement as it is being typed
by Sergeant Allen on the monitor.
On Thursday, October 15, 1992 I had gotten up
that morning and I had gone over to my little brother Robert
Butler. Robert is living at 3215 Sparks with his father, Bob
Butler. Robert's telephone number is 695-5259. Robert was in
school and I visited with a friend by the name of Anthony.
Anthony is a Hispanic male, about 25-26 years old. Anthony lives
next door to Robert. My little brother came home after school
and I stayed at his house until some time that afternoon. My
little brother, Robert gave me a ride on his bicycle to Jimmie's
house. We call Jimmie, "Crawdead [sic]." Jimmie lives off of
Laura Koppe street. Jimmie was not there. I visited with his
mother for awhile. I had a little pocket knife and I was
cleaning my fingernails on Jimmie's front porch. I believe my
pocket knife was an "old timer." I stayed there at Jimmie's for
an hour. I left there and walked over [sic]
my ex-mother-in-laws house.
They live at 7719 W. Hardy. I talked to Barbara, Dusty and Blane.
I left their house and walked over to a friend of mine named
Larry. Larry lives off of Irvington. I had been drinking beer
and whiskey. I only talked to Larry for a few minutes. I left
Larry's house and walked over to Melody's house on Post street.
I talked to her mother and I left there. I walked over to John
Phillips house on Wainwright street. I asked John's grandmother
if he was at home and she told me, John was not there. I walked
over off of Crosstimbers street to locate a friend named Pookie.
Pookie had moved.
I went to
a little store and bought some wine. I think it was some Mad Dog
20/20. I drank the bottle of wine and then I walked over to
Lee's house on Westford Street. Lee lives there with his
grandmother, Edna and his cousin Eric. There is an old
Volkswagon [sic] in the drive way at their house. I walked up to
the front door. The front door has a screen type door in front
of a wooden door. I knocked on the door. I did not hear anyone
answer. I just went inside. I sat down for a little bit on the
couch. I called out when I got inside but I did not hear anyone
say anything. I heard Edna in the kitchen. I walked into the
kitchen and grabbed Edna. Edna's back was to me and I just
grabbed her. I remember struggling with her and I was on top of
her. I know I had my knife but I do not remember taking it out.
We were in the living room when we went to the floor. I saw Edna
covered in blood and underneath her. I went to the back of the
house and went out the back door that leads into the back yard.
Shortly
after I had left Lee's house on Westford I was approached by a
man and this man told me something like "I had better not catch
you in my yard," "jumping his fences." Or something like that. I
woke up later on the ground near the Hardy Toll Road and
Crosstimbers. I walked home, on Cedar Hill from there. I
remember feeling sticky and I had blood on my hands. I washed my
hands off in a water puddle that is near the pipe line by the
Hardy Toll Road. I do not remember what I did with my knife.
The next
day I knew I had killed Edna. I remembered being at her house
and struggling with her and Edna was covered with blood when I
left. I think I was wearing a black concert shirt, the blue
jeans Im [sic] wearing and my Puma tennis shoes. I also had on a
black jacket.
Analysis
In his first point of error, appellant
asserts that the district court erred in holding that our
decision in Bell v. State, 90 S.W.3d 301 (Tex. Crim.
App. 2002), established as a matter of law that the
existence of a statement bars a petitioner from showing that "identity
was or is an issue in the case." Id. at 308. The state
concedes that a statement does not create an automatic bar to
establishing an issue of identity under Chapter 64.
However, the state argues that identity was
not an issue in this case because appellant did not deny the
voluntariness and truthfulness of his statement and his counsel
ultimately admitted the killing at trial and relied on an
elements argument.
Until closing arguments at trial, when
defense counsel argued that the prosecution had not met its
burden of establishing the elements of capital murder, the only
issue presented was one of the murderer's identity. There was no
question that a murder had occurred and that no other legal
defenses, such as self-defense, insanity, or consent, were
presented. Appellant also raised the issue of identity in his
habeas corpus proceedings. Given the facts of this
case, identity is, or was, an issue as required under Article
64.03.
In his second point of error, appellant
asserts that the district court erred in failing to consider his
evidence.
(14) Appellant
argues that, if his evidence had been considered, the trial
court would have found that he had made a sufficient showing
under Article 64.03 that it is reasonably probable that he would
not have been prosecuted or convicted if exculpatory results
were obtained.
In Rivera, this court held that a
hearing is not required because the legislature could have
intended issues to be "resolved by affidavits, which could be
submitted by the convicted person along with his motion." Id.
at 59. Although Appellant is not entitled to a hearing
under article 64.03, affidavits submitted by the appellant
should be considered by the court.
(15) Rivera
v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002).
Consideration of all evidence is particularly
important because a written order is required of the trial court
when it rules on an Article 64.03 motion for appellate purposes.
Cravin v. State, 95 S.W.3d 506, 508 (Tex. App.-Houston
[1st Dist.] 2002, pet. ref'd). The record does not allow us to
determine whether the trial court did not, in fact, consider
appellant's evidence. The record does show that the trial court
adopted the state's proposed findings of fact verbatim.
In the defense affidavit from Dr. Elizabeth
Johnson, she stated that "[i]t is common in cases of direct
assault with a knife that there will be a struggle in which
biological material from the attacker can be transferred to the
fingernails of the victim," and that "[i]f found, large clumps
of skin under the nails would indicate considerably more contact
than could be explained by the transfer of DNA by an innocent
handshake or common use of a towel.
Her affidavit also states thatHouston Police
Department's crime lab's blood typing results suggest that the
fingernails may hold blood other than Mr. Raby's or the
decedent's. The decedent's blood type was B, while Mr. Raby's is
type O, which means that his blood lacks both A and B blood
group substances. Two samples were taken from the decedent's
fingernails, each representing one hand: one showed consistent
results of blood type AB, while the other revealed B type
activity.
These results could indicate the presence of
blood group substance A on the nails, which is foreign both to
the decedent and to Mr. Raby. . . . the blue panties found near
the body at the crime scene could yield probative evidence as to
the identity of the victim's attacker.
The homicide report described these, saying
that they "appeared to have blood smeared on them . . ." [i]f
the attacker himself were cut, and if he used the panties to
wipe his hands after the attack, then some of the blood on the
panties could be the attacker's. DNA testing can detect DNA of
multiple individuals that has been mixed and can be very
definitive in eliminating someone as a donor, even in a mixed
sample. If blood other than Ms. Franklin's is found on the
panties, that could indicate the identity of the attacker.
(16)
Also included in the evidence that appellant
presented to the trial court was a police report, indictment,
and the plea bargain of Edward Bangs, who was sentenced to eight
years in the institutional division of Texas Department of
Criminal Justice for robbing a 63-year-old acquaintance in
August of 1993, during which he threatened to kill her if she
did not give him her purse.
This court has interpreted the provisions of
Article 64.03 to mean that an applicant must show that "a
reasonable probability exists that exculpatory DNA tests would
prove their innocence." Kutzner v. State, 75 S.W.3d
427, 439 (Tex. Crim. App. 2002), but the DNA testing should not
be ordered if the results will "merely muddy the waters." Id.
In Kutzner, the murder involved in a
real-estate office with public access and a victim who had an
active lifestyle.
(17) If DNA
from other people had been found, it would not have exculpated
the applicant, as DNA from numerous others would be expected. In
the present case, however, the crime scene was a private home,
and the victim was ill and rarely left the house or had contact
with anyone other than her grandsons. There are a maximum of
four items to be tested and few suspects for comparison. The
waters would not be muddied by exculpatory DNA evidence.
Appellant is also requesting that the hair
found in the victim's hand be re-tested with the technology
currently available to determine if it really did belong to one
of the grandsons with whom the victim lived or if it belonged to
an unidentified person.
(18) Testing of
this hair would not assist the inquiry; the grandsons lived in
the house, and it would be highly unusual if their hair was
absent, while both appellant and Bangs were in the home on a
number of occasions before the murder, and finding hairs from
either or both or them would not be remarkable.
Of course, ordering DNA testing does not end
the inquiry. Once DNA testing is completed, the results are
still subject to a hearing under Tex. Code Crim. Proc., Article
64.04.
(19) The trial
court must determine in that hearing whether, if the results had
been available during the trial, "it is reasonably probable that
the person would not have been prosecuted or convicted."Id.
As in the determination of whether DNA testing is warranted,
proof of innocence is not required. If the court requires the
appellant to show that DNA testing will absolutely prove his
innocence, Article 64.04 would be rendered meaningless.
Conclusion
The evidence against the appellant comprised
testimony that put him in the vicinity at the approximate time
of death, his statement, and the jacket that he had been wearing
on the day of the murder. No blood or other physical evidence
that connected appellant to the scene was recovered. In his
statement, appellant did not say he stabbed the victim. In some
aspects, appellant's statement contradicts the testimony of
police officers about the physical evidence from the crime scene.
(20) Sergeant
Allen testified that there was no physical evidence to connect
Mr. Raby to the crime,
(21) and he
agreed that DNA testing would be useful in this case.
(22)
Appellant has shown a reasonable probability
exists that DNA tests would be exculpatory. We overrule the
denial by the convicting court of appellant's motion for DNA
testing pursuant to Chapter 64. Appellant's motion for DNA
testing is granted as to the underwear, fingernail clippings,
and the nightshirt, if it can be found.
Johnson, J.
En banc
Delivered: June 29, 2005
Do not publish
*****
1. During oral arguments,
appellant's counsel stated that, if they are given access to the
requested items, appellant will pay the costs of the testing.
2. It is probable that
appellant did not have access to independent DNA testing during
his trial. Dr. Elizabeth Johnson states in her affidavit:
"PCR testing became available in the first
half of 1994 in the Harris County labs, but I do not know
whether DNA testing of any kind was actually available to an
indigent defendant in Harris County. While I was employed there,
the Harris County Medical Examiner's Office, along with the HPD
lab, performed the majority of DNA testing for criminal cases
brought in Harris County. During my tenure there at that office,
1991 to 1996, I cannot recall a single instance in which
biological evidence was sent for DNA testing by a defendant at
the expense of the State or the court. Conversely, I can recall
several instances in which defendants with privately retained
attorneys paid for such testing in the mid-1990s at their own
expense."
3. The state is unable to
locate the nightshirt, which has been missing since trial.
However, recently discovered boxes in the property room of the
Houston Police Department prompted the appellant to continue to
request testing for the nightshirt if it is found in the boxes.
4. Contributing to the
delay was the trial court's decision to appoint an attorney
other than his current federal habeas corpus counsel to
represent appellant in these proceedings despite his current
attorneys' announcement in open court that they were willing to
represent him pro bono. The attorney appointed by the
trial court was not on the capital appellate-appointment list
and did not receive notice of the January 29, 2003, oral
argument.
5. Police recovered a
black jacket from the home of appellant's girlfriend. No
evidence connecting appellant to the murder was found on the
jacket.
6. Trial transcript,
volume XXVIII, p. 310.
7. Transcript of
suppression hearing, volume XXV, p. 8.
8. Homicide Report at
2.021.
9. Trial transcript,
volume XXVII p. 156.
10. Trial transcript,
volume XXVIII, p. 304.
11. Trial transcript,
volume XXVIII, page 190.
12. Appellant argues that
the "microscopic hair analysis" technology used to make this
determination was a scientifically unreliable basis for hair
identification. Therefore, he seeks to have DNA testing
conducted on this hair as well. However the presence of hair
from a resident is not strong evidence of involvement in the
crime.
13. HPD crime lab chemist
Joseph Chu conducted blood-test comparisons, which he found to
be "inconclusive."
14. The findings of the
trial court state, "Having considered the defendant's post-conviction
motion requesting DNA testing of evidence, pursuant to Chapter
64 of the Texas Code of Criminal Procedure; the State's motion
requesting that DNA testing be denied; and, the affidavits of
Elena Siurna, Reidun Hilleman, K.L. McGinnis, Jerry Werner,
Melchora Vasquez, John R. Thorton, and Roberto Gutierrez, the
court makes the following findings . . .." There was no mention
of appellant's affidavits.
15. A hearing is not
prohibited.
16. Dr. Johnson concluded
that DNA results could prove appellant's innocence. The State
did not present controverting evidence.
17. The court also noted
that the appellant in Kutzner had been convicted by
"overwhelming circumstantial evidence" of a "strikingly similar"
murder and that he did not contest his identity in that case.
18. Dr. Elizabeth
Johnson's affidavit states: "The hair was identified through
'microscopic hair analysis;' in other words, a scientist closely
examined the hair through a microscope for similarities to other
hair samples. Microscopic hair analysis is a scientifically
unreliable basis for hair identification."
19. The version of the
Article applicable to the appellant is as follows: "After
examining the results of testing under Article 64.03, the
convicting court shall hold a hearing and make a finding as to
whether the results are favorable to the convicted person. For
the purposes of the article, results are favorable if, had the
results been available before or during the trial of the
offense, it is reasonably probable that the person would not
have been prosecuted or convicted." Tex. Code Crim. Proc., Art.
64.04.
20. The statement states
that he had struggled with Mrs. Franklin, that he was on top of
her, and that he saw a lot of blood underneath her before he
left through the back door. Further, appellant stated that his
hands were bloody and that he washed them off in a puddle away
from the crime scene. The police testified that the only blood
at the scene was near the body; they found no blood on the
telephone (contra Eric Benge),and stated their belief
that the suspect had wiped his hands or cleaned his hands,
because there was no blood found on the purse, papers, credit
cards, or the other items that were scattered on the bed and
within the bedroom area. The police concluded that the suspect
left the residence through the rear door in Mrs. Franklin's
bedroom, but no blood was found on the door.
21. Raydun Hilleman, a
Houston Police Department chemist, did not find that any hairs
from the crime scene were consistent with Raby's hair, nor did
he find any of the victim's hair on the clothes recovered from
Mr. Raby's home.
22. In his supplemental
report dated October 29, 1992, Sergeant Allen wrote: "We are
requesting D.N.A. [sic] be done if possible in this case." |
