Tony Romo, Jr. v. State ( 2005 )

NO. 07-03-0538-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 14, 2005 ______________________________

TONY J. ROMO, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-402,096; HON. BRAD UNDERWOOD, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL, JJ. ⁽¹⁾

Tony J. Romo, Jr. (appellant) appeals his conviction for aggravated sexual assault. After considering his nine issues, we affirm the judgment for the reasons which follow.

Issues One and Two - Admission of DNA Evidence

Appellant initially contends that the trial court erred in admitting DNA evidence developed from a blood sample taken while he was in prison. This is purportedly so because the sample was taken in violation of his constitutional rights to be free of unreasonable searches and seizures. We overrule the issues.

The sample was impermissibly obtained, according to appellant, for two reasons. First, the process utilized purportedly violated §411.148(a) of the Texas Government Code and, second, a federal appellate court struck down a like procedure in United States v. Kincade, 345 F.3d 1095 (9^th Cir. 2003). ⁽²⁾ The procedure at issue involves the drawing of blood from convicted felons while in prison. The specimen is then used to create a DNA record of the felon.

We address the second reason proffered by appellant first. While the United States Court of Appeals for the Ninth Circuit, in Kincade, did initially hold unconstitutional a procedure wherein blood was drawn from convicted felons to create a DNA record, that opinion is no longer authoritative. It was withdrawn by the same court, and another was placed in its stead. And, through the latter, it held that "compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances" and that "we today align ourselves with every other state and federal appellate court to have considered these issues - squarely holding that the DNA Act satisfies the requirements of the Fourth Amendment." United States v. Kincade, 379 F.3d 813, 839 (9^th Cir. 2004) (en banc). Given that the foundation for appellant's argument no longer exists, we reject appellant's argument.

Regarding his first reason, appellant admits that he was convicted and sent to prison for another offense. However, he appealed that conviction, and this court had yet to issue its mandate finalizing the conviction when his blood was drawn by the prison officials. Furthermore, because mandate had yet to issue, he could not be considered as "serving a sentence" for purposes of §411.148(a), appellant concludes. Yet, in making this argument, appellant did not address the dictates of art. 42.09, §6 of the Texas Code of Criminal Procedure. It provides that "[a]ll defendants who have been transferred to the institutional division of the Texas Department of Criminal Justice pending appeal of their convictions . . . shall be under the control and authority of the institutional division for all purposes as if no appeal were pending." Tex. Code Crim. Proc. Ann. art. 42.09, §6 (Vernon Supp. 2005) (emphasis added). Given this directive, the State was permitted to treat appellant like a convicted felon even though his appeal had yet to be finalized via the issuance of a mandate.

Issues Eight and Nine - Suppression of his Confession

We next address appellant's issues eight and nine for they are generally dispositive of the others. Through them, he complains of the trial court's refusal to suppress his confession. It was subject to suppression, in his view, because he was denied his right to counsel during the execution of the search warrant and his confession was executed after he had attempted to end the interrogation. We overrule the issues.

As to the request for an attorney, appellant cites us no authority (and we know of none) holding that he is entitled to an attorney when officers attempt to execute a search warrant. And, while requesting an attorney may obligate a suspect's interrogators to halt further interrogation, they need only do so until counsel is provided or the suspect himself re-initiates conversation. Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim. App. 1995).

Here, the record contains the following evidence proffered by a police officer who helped execute the search warrant. At the time the warrant was served, appellant requested an attorney. Per that warrant, the officers intended to obtain a blood sample from him. Furthermore, they told appellant that he had no right to an attorney at that point. Instead, appellant was taken to the health department whereat personnel extracted several vials of blood from him. Additionally, neither officer broached with appellant the issue of his providing a statement. Nor did appellant again request counsel. Nonetheless, appellant asked to speak to detective Martinez. The latter and appellant knew each other since they had engaged in prior discussions about other criminal matters. So, his custodians phoned Martinez to see if he cared to meet with appellant. Martinez agreed to do so. Thereafter, the officers drove appellant from the health department to the police station so he and appellant could meet. During that short drive, nothing was said about appellant offering any statement. Nor did appellant again request to speak to legal counsel. And, by the time the group arrived at the station, they had spent approximately 45 minutes together.

Next, when appellant encountered detective Martinez, the two engaged in "small talk." During this exchange appellant informed Martinez about his general situation and the prison in which he was incarcerated. This led to Martinez informing appellant of his Miranda rights. Thereafter, appellant provided Martinez with his version of the events, which Martinez transcribed. The transcription, which also contained Miranda warnings, was then given to appellant. Appellant was asked to review its contents and place his initials next to each Miranda admonition. So too was he asked if he wanted to make any changes. He did ask for clarification about a matter but made no changes. So too did he place his initials next to the warnings and sign the confession before a notary. At no time during the interview did he ask for counsel or request that the proceeding stop. Nor was he denied any basic necessities during the meeting, which lasted less than two hours.

Though appellant contradicted much of what the officers said, the trial court had the discretion to choose which witness to believe. As the sole finder of fact, Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993), it was free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). And, we must conclude that evidence appeared before it upon which it could have reasonably determined that while appellant initially requested legal counsel, he also voluntarily and unilaterally re-initiated discussion with the officers after the request. Furthermore, the very same evidence we mentioned above further entitled the trial court to conclude that appellant's statement was 1) voluntarily given without coercion, threat or improper influence and 2) not obtained in breach of any request to halt the interview. This being so, we have no basis to alter the trial court's refusal to suppress the confession and, therefore, overrule both issues eight and nine. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (stating that the trial court's determination will not be overturned if supported by the record, especially when the trial court's findings turn on the witness' credibility and demeanor).

Issues Three through Seven

The remaining issues before us deal with appellant's ability to attack the validity of the DNA evidence proffered by the State at trial. They involve appellant's opportunity to secure evidence and expert testimony which may have been used to discredit the accuracy of the DNA evidence used to inculpate him. Assuming arguendo that each complaint had merit, we, nonetheless, would find them to fall short of requiring reversal. This is so because of appellant's written statement. It too was admitted into evidence at trial and through it, he confessed to committing the assault. Given his confession to the crime, the DNA evidence was rendered moot. In short, the admissible evidence of his guilt was overwhelming and sufficient to render harmless any mistake made by the trial court viz the DNA evidence and appellant's opportunity to rebut it.

Accordingly, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Do not publish.

1. Then Chief Justice Phil Johnson, who sat on the panel at oral argument, did not participate in this decision.

2.

Section 411.148(a) of the Government Code states: "[a]n inmate serving a sentence for a felony in the institutional division shall provide one or more blood samples or other specimens for the purpose of creating a DNA record." Tex. Gov. Code Ann. §411.148(a) (Vernon 2005).

n="false" UnhideWhenUsed="false" Name="Colorful Shading Accent 3"/>

NO. 07-10-0235-CR

NO. 07-10-0236-CR

NO. 07-10-0237-CR

NO. 07-10-0238-CR

NO. 07-10-0239-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 24, 2011

______________________________

JOE MARVIN SLUTZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NOS. 58,571-E, 58,572-E, 58,573-E, 58,574-E & 58,575-E;

HONORABLE DOUGLAS R. WOODBURN, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

In 2008, Appellant, Joe Marvin Slutz, was convicted and sentenced as follows: cause number 58,571-E, sexual assault of a childBtwenty years confinement; (2) cause number 58,572-E, Count IBaggravated sexual assault of a childBconfinement for life; Count IIBaggravated sexual assault of a childBconfinement for life; (3) cause number 58,573-E, aggravated sexual assault of a childBconfinement for life; (4) cause number 58,574-E, aggravated sexual assault of a childBconfinement for life; and (5) cause number 58,575-E, aggravated sexual assault of a childBconfinement for life.  His convictions were affirmed by this Court.  See Slutz v. State, Nos. 07-08-00434-CR, 07-08-00435-CR, 07-08-0436-CR, 07-08-0437, and 07-08-0438-CR, 2009 Tex. App. LEXIS 8326 (Tex.App.--Amarillo Oct. 29, 2009, pet. dism'd).

            On March 12, 2010, Appellant filed, in each cause, a Motion for Post Conviction DNA Testing Pursuant to Chapter 64 of the Texas Code of Criminal Procedure. As required by article 64.02(a)(2)(B) of the Code, the State responded to Appellant's motion by explaining that no evidence could be delivered for testing because none had been collected.  In its brief, the State explained that during Appellant's trial, the Sexual Assault Nurse Examiner testified that she did not collect any samples for testing because the last sexual assault had occurred outside a ninety-six hour period.  No hearing was held on Appellant's motion, and the trial court entered an order in each cause denying the motion.[1]  Appellant now appeals the denial of his request for DNA testing.

            Relying on McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App. 1981), Appellant argues that "[t]he rule is well settled that where the state introduces an exculpatory statement or confession of a defendant it is then bound to disprove it and failure to do so is grounds for acquittal."  Id. at 217.  McKenzie has no application to this appeal from the trial court's denial of a request for DNA testing.  Furthermore, Appellant does not brief nor argue entitlement to appointed counsel or challenge the trial court's rulings.  See Tex. R. App. P. 38.1(i).  Nevertheless, we will construe his brief as a challenge to the denial of his motions for DNA testing.

            We review the trial court's decision to deny DNA testing under the bifurcated standard announced in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).  See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Chapter 64 of the Texas Code of Criminal Procedure provides that a convicting court may order forensic DNA testing only if it finds the evidence Astill exists and is in a condition making DNA testing possible.@ Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2010).  The burden is on the convicted person to establish 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 for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.  Art. 64.03(a)(2).  Simply stated, the convicted person must show the existence of a reasonable probability that exculpatory DNA tests would prove his innocence.  Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002).

Additionally, the Court of Criminal Appeals has held that A[n]othing in Article 64.03 requires a hearing of any sort concerning the trial court=s determination of whether a defendant is entitled to DNA testing.@  Rivera, 89 S.W.3d at 58-59.  Therefore, the trial court, in deciding whether the evidence to be tested still exists, may reach its decision based on the sufficiency of the State=s written explanation of its failure to deliver the requested evidence.  See Mearis v. State, 120 S.W.3d 20, 24 (Tex.App.BSan Antonio 2003, pet. ref=d).

In the present case, the State explained there was no biological material to test.  Based on the sufficiency of the State's reason, the trial court concluded that Appellant was not entitled to DNA testing.  Consequently, Appellant did not demonstrate entitlement to appointed counsel or to DNA testing.[2]  We hold the trial court did not err in denying Appellant's request for DNA testing in each cause.  Appellant=s sole contention is overruled.

Accordingly, the trial court's orders are affirmed.

                                                                        Patrick A. Pirtle

                                                                                          Justice

Do not publish.

---

[1]Although the trial court's order is entitled "Order Denying Defendant's Motion for DNA Testing and Appointment of Counsel," nowhere in his motions does Appellant request appointment of counsel. Nevertheless, in the notices of appeal filed in cause numbers 07-10-0236-CR and 07-10-0237-CR, Appellant complains that the trial court did not appoint counsel to represent him in pursuing DNA testing. Entitlement to appointed counsel to pursue DNA testing is not absolute.  The convicted person must meet three criteria:  (1) inform the trial court that he wants to submit a motion for the appointment of counsel; (2) the trial court must find that "reasonable grounds" exist for the filing of the motion; and (3) the trial court must find that the convicted person is indigent.  Gutierrez v. State, 307 S.W.3d 318, 321 (Tex.Crim.App. 2010).

[2]On January 25, 2011, Appellant filed an untimely Reply Brief.  He complains that his conviction was based on extraneous offense evidence.  This issue was addressed and resolved against Appellant in his direct appeals.  See Slutz v. State, Nos. 07-08-00434-CR, 07-08-00435-CR, 07-08-00436-CR, 07-08-00437-CR, and 07-08-00438-CR, 2009 Tex. App. LEXIS 8326 (Tex.App.--Amarillo Oct. 29, 2009, pet. dism'd).  His other complaints relate to alleged biological material.  As the State explained, no biological material was collected; thus, there is nothing to test.  We overrule the arguments raised in Appellant's Reply Brief.