Charles Lee v. State ( 2016 )

NUMBER 13-15-00301-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES LEE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 167th District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
In this post-conviction appeal, appellant Charles Raymond Lee asserts that the
trial court (1) erred by denying his request for DNA testing because he met the standard
articulated under chapter 64 of the code of criminal procedure, see TEX. CODE CRIM.
PROC. ANN. art. 64.01 (West, Westlaw through 2015 R.S.); and (2) chapter 64 of the code
of criminal procedure was “unconstitutionally applied to his situation.” We affirm.
I. BACKGROUND1
A Travis County jury convicted Lee of aggravated robbery of the Excel Vending
Company, enhanced by a previous felony conviction. See TEX. PENAL CODE ANN. §
29.03 (West, Westlaw through 2015 R.S.). It assessed his punishment at forty-eight
years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division.
Lee appealed his conviction to the Austin Court of Appeals, see 51 S.W.3d 365, 368 (Tex.
App.—Austin 2001, no pet.), and the Austin court reformed the district court’s judgment
to reflect a lesser-included offense of robbery, after concluding that the evidence was
legally insufficient to support the jury’s finding that Lee used a deadly weapon during the
commission of the robbery. See id. § 29.02. The Austin Court then affirmed the
judgment as reformed, reversed it as to punishment only, and remanded the case for a
new trial on punishment. See Lee, 51 S.W.3d at 376. On remand, the jury assessed
Lee’s punishment at fifty years’ imprisonment. See Lee v. State, No. 03-03-00035-CR,
2003 WL 22409451, at *1 (Tex. App.—Austin 2003, no pet.) (mem. op., not designated
for publication). For purposes of this appeal, we incorporate the factual background
section of Lee’s initial direct appeal as recited by the Austin court. See Lee, 51 S.W.3d
at 368.
1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2015 R.S.).
2
On April 23, 2012, Lee filed a motion for forensic DNA testing to test “the stocking
alleged to be worn by the individual with the gun in the robbery that occurred on or about
January 21, 1999.”2 See TEX. CODE CRIM. PROC. ANN. art. 64.01. Lee further asserted
in his motion that the issue of identity was “highly contested” at his trial and testing this
stocking would be probative. The State filed a response opposing Lee’s motion, and on
May 8, 2015, the trial court denied Lee’s motion without a hearing by concluding that Lee
failed to establish by a preponderance of evidence that he would not have been convicted
if exculpatory results had been obtained through DNA testing. This appeal followed.
II. MOTION FOR FORENSIC DNA TESTING
By his first issue, Lee asserts that the trial court erred by denying his motion for
forensic DNA testing because he satisfied his burden under chapter 64 of the code of
criminal procedure.
A. Standard of Review and Applicable Law
In reviewing a trial court's ruling on a motion for post-conviction DNA testing under
chapter 64, we give “almost total deference” to the trial court's resolution of questions of
historical fact and application-of-law-to-fact issues that turn on witness credibility and
demeanor, but we consider de novo all other application-of-law-to-fact questions. See
Holberg v. State, 425 S.W.3d 282, 284-85 (Tex. Crim. App. 2014). Moreover, we will not
consider post-trial evidence when deciding whether or not the appellant has carried his
burden to establish by a preponderance of the evidence that he would not have been
convicted had exculpatory results been obtained through DNA testing. Id. at 285. Thus,
2 The record shows that Lee filed an “Amended Motion for DNA Testing” on October 6, 2011, which
the trial court found to be “identical in all respects” to the April 23, 2012 motion.
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despite the influx of newly asserted post-trial factual developments that the appellant calls
upon us to consider, our review is limited to discerning whether, and to what extent,
exculpatory results from a DNA testing of the evidence would alter the landscape if added
to the mix of evidence that was available at the time of trial. Id.
A convicting court may order forensic DNA testing if the court finds that: (1) the
evidence (a) still exists and is in a condition making DNA testing possible and (b) has
been subjected to a chain of custody sufficient to establish that it has not been substituted,
tampered with, replaced, or altered in any material respect; (2) there is a reasonable
likelihood that the evidence contains biological material suitable for DNA testing; (3)
identity was or is an issue in the case; and (4) the convicted person establishes by a
preponderance of evidence that (a) the person would not have been convicted if
exculpatory results had been obtained through DNA testing and (b) the request for the
proposed DNA testing is not made to unreasonably delay the execution of sentence or
administration of justice. TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (West, Westlaw
through 2015 R.S.).
B. Discussion
In denying Lee’s motion, the trial court expressly concluded that Lee failed to
establish by a preponderance of evidence that he would not have been convicted if
exculpatory results had been obtained through DNA testing. To overcome this burden,
Lee must show by a preponderance of the evidence—that is, a greater than fifty percent
likelihood—that he would not have been convicted had any exculpatory results generated
by the proposed testing been available at the time of his trial. See Holberg, 425 S.W.3d
at 287; Smith v. State, 165 S.W.3d 361, 364 (Tex. Crim. App. 2005). “Exculpatory
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results” are results that exclude the convicted person as the donor of the material. See
Holberg, 425 S.W.3d at 287. Therefore, to prevail on this element under article 64.03(a),
Lee must show that more likely than not, he would not have been convicted had the jury
been able to weigh evidence that his biological material was not found on the stocking
against the remainder of the evidence presented at trial. In support of his argument,
Lee’s counsel generally states the law and purpose of DNA testing and discusses how
his identity was at issue at trial and was “convicted in part due to mistaken, eyewitness
identification.” He does not, however, argue how he would not have been convicted had
any exculpatory results generated by testing the stocking been available at the time of
trial.
The Austin Court’s 2001 opinion affirming Lee’s conviction for robbery laid out
several reasons why Lee’s conviction should stand, even considering and indulging Lee’s
misidentification argument. See Lee, 51 S.W.3d at 369. For example, the Court noted
that both of Lee’s co-conspirators testified that Lee participated in the robbery, including
his role in planning the crime, obtaining the weapon used, and driving the car that
transported the trio the day of the crime. Id. Furthermore, the State introduced
evidence recovered from Lee’s then-girlfriend’s apartment linked to Excel Vending
Company and testimony from other witnesses who told jurors that Lee asked them if they
“wanted to participate in a robbery of a vending machine business.” See id. Finally,
the record shows that all three of the perpetrators of the robbery that night wore stocking
masks. Id. at 368.
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Taking these facts and Lee’s arguments into consideration, we are unable to say
that even if exculpatory results were generated from that particular stocking mask found
at the scene of the crime, that it is more likely than not that the jury would not have
convicted Lee of robbery. As a result, Lee failed to establish his burden under article
64.03. We overrule Lee’s first issue.
III. CONSTITUTIONAL CHALLENGE
By his second issue, Lee contends that the trial court violated his constitutional
rights by “misapplying the [Motion for Forensic DNA Testing] statute to his situation.” We
construe Lee’s issue as an as-applied challenge to the constitutionality of chapter 64 of
the Texas Code of Criminal Procedure. See State ex rel. Lykos v. Fine, 330 S.W.3d
904, 910 (Tex. Crim. App. 2011) (“A litigant raising only an “as applied” challenge
concedes the general constitutionality of the statute, but asserts that the statute is
unconstitutional as applied to his particular facts and circumstances.”).
A. Preservation of Error
As a threshold matter, the State argues that Lee failed to preserve this issue for
appellate review. We agree. As-applied challenges to the constitutionality of a statute
require a specific, timely objection to the trial court, a ruling on the complaint, or an
objection to the trial court’s refusal to rule. See Curry v. State, 910 S.W.2d 490, 496
(Tex. Crim. App. 1995); see also Smith v. State, __ S.W.3d __, 2016 WL 3193479, at *4
(Tex. Crim. App. 2016) (discussing how a party should preserve error on constitutional
challenges to statutes). Here, the record shows that Lee never raised his constitutional
challenges to the trial court prior to or after the trial court’s denial of his motion for forensic
DNA testing. As a result, such an issue is not properly preserved for our review. See
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Curry, 910 S.W.2d at 496. We overrule Lee’s second issue.
IV. CONCLUSION
We affirm the trial court’s order.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
1st day of September, 2016.
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