Milton Hill Greenland v. State

Opinion issued December 31, 2009 In The Court of Appeals For The First District of Texas NO. 01-06-00109-CR MILTON GREENLAND, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 560087 MEMORANDUM OPINION Almost 15 years after his aggravated kidnapping conviction, appellant Milton Greenland moved for post-conviction DNA testing of biological material. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2009). The State opposed Greenland’s motion, arguing that it possessed no testable evidence containing any biological matter. After a hearing on January 25, 2006, the trial court denied Greenland’s motion, and Greenland appealed. In his sole issue, Greenland argues that the trial court erred in finding that the Houston Police Department (HPD) did not possess any evidence related to his conviction, when an affidavit from an HPD employee indicated that a record in HPD’s Latent Print Laboratory indicated that “one piece of duct tape and one belt” were in the custody of the HPD Property Room. A separate affidavit from the HPD Property Room denied possession of that or any other evidence relating to Greenland’s conviction. Because the record supports the trial court’s finding of no testable evidence and because Greenland failed to contest the trial court’s other findings that preclude DNA testing in this case, we affirm. Background Original Conviction Greenland was convicted for aggravated kidnapping of a teenager and sentenced to imprisonment for eighty-five years and a fine of $10,000. Greenland v. State, No. B14-90-01160-CR, 1992 WL 117392, at *1 (Tex. App.—Houston [14th Dist.] June 4, 1992, pet. ref’d). The conviction was upheld on appeal. Id. As recounted in the opinion of the Fourteenth Court of Appeals, Greenland and two armed accomplices entered the home where the complainant lived with his older brother. Id. Greenland grabbed the complainant, punched him, and hit him on the side of the head with a gun. Id. After Greenland took the complainant to a bedroom, one accomplice tied the complainant’s ankles with a leather belt and bound his hands behind his back with duct tape. Id. Greenland and the accomplices threatened to kill the complainant, and they put him in a car with a fourth accomplice. Id. A Houston police officer later pulled the car over for a traffic violation and discovered the complainant, bound and beaten, in the back seat. Id. On direct appeal from his conviction, Greenland challenged the sufficiency of the evidence to show that he intended to terrorize the complainant and the trial court’s failure to instruct the jury on the lesser-included offense of kidnapping. Id. at *2. In affirming Greenland’s conviction, the Fourteenth Court of Appeals wrote: Aggravated kidnapping occurs when an individual intentionally or knowingly abducts another person with the intent to terrorize him or a third person. Tex. Penal Code Ann. § 20.04(a)(5). . . . In the instant case the continual beatings, manhandling, threatening, and taunting of the complainant by the group of men of which appellant was a part demonstrated an intent to terrorize, giving the word its common meaning. Greenland, 1992 WL 117392, at *2. The court of appeals also observed that Greenland could be held responsible for aggravated kidnapping as a party to the offense because his “actions in the instant case demonstrated an intent to promote the offense.” Id. Motion for Post-Conviction DNA Testing Greenland filed a pro se motion for forensic DNA testing of biological material and ballistic evidence. Greenland simultaneously filed an application to proceed in forma pauperis and a motion for appointment of counsel. An attorney was appointed to represent Greenland, and a new motion for post-conviction DNA testing was filed. In his motion for post-conviction DNA testing, Greenland sought testing of “all biological material in the state’s possession.” Greenland asserted that “[e]xculpatory results obtained from the DNA evidence that neither matched the convicted person’s genetic profile nor the genetic profile of the complainant would show that the convicted person was not the perpetrator of the aggravated kidnapping which formed the basis of his conviction . . . .” The motion specifically referenced a knife that allegedly had been used by Greenland to scratch the complainant and the gun with which Greenland allegedly struck the complainant. In response, the State filed five affidavits. In separate affidavits, R. Hilleman and R.D. Baldwin, property-and-evidence records custodians for the HPD Crime Laboratory and the HPD Firearms Laboratory, denied that either of those laboratories possessed property or evidence related to Greenland’s case. A. A. Arceo, property-and-evidence records custodian for the HPD Latent Print Laboratory, stated that, “[a]ccording to the records of the . . . Houston Police Department—Latent Lab, the following property and/or evidence from [Greenland’s case] is in the custody of . . . Houston Police Department—Property Room. One piece of duct tape and one belt.” However, K. L. McGinnis, another HPD property-and-evidence records custodian, stated that no property or evidence pertaining to Greenland’s conviction was in possession of the HPD Property Room. Finally, M. Vasquez, the exhibits clerk for the Harris County District Clerk’s Office stated, “According to the records of the Harris County District Clerk’s Office, the following evidence in the case styled The State of Texas v. Milton Greenland . . . was destroyed on August 10, 1995: (1) two handguns; (2) a carbine rifle; (3) a baggie of bullets; (4) two boxes of cartridges; (5) pieces of duct tape; (6) a roll of duct tape; (7) a knife; and (8) pieces of a belt.” In summary, a custodian for the HPD Latent Print Laboratory stated that the print laboratory had records indicating that the HPD Property Room had a piece of duct tape and a belt, but the custodian for the property room denied possessing those items, and the district clerk provided evidence that pieces of duct tape and of a belt had been destroyed. At the hearing on Greenland’s motion, his attorney stated, “I concede that the defendant has the burden of showing that the biological items that we want tested are in existence, and, obviously, I cannot meet that burden, so I concede that.” The trial court denied Greenland’s motion for DNA testing. In its findings of fact and conclusions of law, the trial court stated: . . . 2. The Court finds, based on the credible affidavit of K.L. McGinnis, that the records of the Houston Police Department (HPD) Property Room reflect that the HPD Property Room is not in possession of any property and/or evidence related to [Greenland’s case]. . . . 4. The Court finds, based on the credible affidavit of [A.] Arceo, that the records of the HPD Latent Print Laboratory is not in possession of any evidence related to [Greenland’s case]. . . . 8. The Court finds, based on the credible affidavits of K.L. McGinnis, [R.] Hilleman, [A.A.] Arceo, [R.D.] Baldwin, and [M.] Vasquez, that [Greenland] fails to meet the requirement of Article 64.03(a)(1) of the Texas Code of Criminal Procedure by showing that evidence still exists and is in a condition making DNA testing possible. 9. The Court, based on [Greenland’s] failure to meet the requirement of Article 64.03(a)(1), finds in the negative the issues listed in Article 64.03(a)(1). 10. The Court finds that, based on the lack of evidence, [Greenland] fails to show by a preponderance of the evidence, that a reasonable probability exists that [Greenland] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. 11. The Court finds that [Greenland] fails to meet the requirement of Article 64.03(a)(2) of the Texas Code of Criminal Procedure concerning his burden of proof. Procedural Developments on Appeal After the trial court denied Greenland’s motion, this Court twice abated the appeal for the trial court to correct the certification of Greenland’s right to appeal, and we abated the appeal a third time for the trial court to determine if Greenland wished to pursue his appeal. In August 2009, the trial court held a hearing in which it stated on the record that “after much effort and work,” it had determined that Greenland was deported to Jamaica in August 2008. Despite Greenland’s deportation, we will resolve his appeal on the merits. See Alakhras v. State, 73 S.W.3d 434, 435–36 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Cuellar v. State, 13 S.W.3d 449, 452 (Tex. App.—Corpus Christi 2000, no pet.) (“An appellant who complies with the rules of appellate procedure should not lose his right to appeal when he is expelled from the country and is legally unable to return to the custody of the State, particularly when the conviction affects his right to reenter the country at a later date.”). At the original hearing on Greenland’s motion, Greenland’s attorney specifically stated that Greenland wished to appeal, and he asked the trial court to make certain the appellate record would be available to Greenland or his new appointed counsel. Although Greenland’s current whereabouts are unknown, there is nothing in the record to show that Greenland wished to abandon his appeal, and in the interest of justice we address the merits of his appeal. Post-Conviction DNA Testing The Code of Criminal Procedure provides for post-conviction DNA testing of evidence that “was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense.” Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp. 2009). A trial court may order forensic DNA testing only if: (1) the evidence exists in a testable condition and has been subjected to a proper chain of custody; (2) identity was or is an issue in the case; and (3) the convicted person establishes 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 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). “The trial court can order DNA testing only if the statutory preconditions are met.” Birdwell v. State, 276 S.W.3d 642, 644 (Tex. App.—Waco 2009, pet. ref’d) (citing Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002)); Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“The legislature clearly expressed its desire to allow a court to order DNA testing under strictly limited circumstances.”). We review a convicting court’s denial of post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). “Reviewing courts defer to a trial judge’s findings of fact when they are supported by the record.” Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009). “They also defer to a trial judge’s application of law to fact questions when those questions turn on credibility and demeanor.” Id. “Finally, pure legal issues are given a de novo review by appellate courts.” Id. Analysis There Was No Testable Evidence In his sole issue on appeal, Greenland challenges the trial court’s finding of fact that “based on the credible affidavit of [A.] Arceo . . . the records of the HPD Latent Print Laboratory is not in possession of any evidence” related to Greenland’s conviction. Greenland argues that Arceo’s affidavit stated that “one piece of duct tape and one belt” from Greenland’s conviction were in HPD’s custody, and therefore, the trial court’s negative finding on “the issues listed in Article 64.03(a)(1)” is erroneous and should be reversed. Arceo’s affidavit did not establish that HPD had custody of any evidence. It stated only that the records of the Latent Laboratory reflected that one piece of duct tape and one belt were in the custody of the Property Room. But the McGinnis affidavit established that the Property Room possessed no evidence. And the Vasquez affidavit established that pieces of duct tape and a belt had been destroyed. The trial court did find that the Latent Print Laboratory did not possess any relevant evidence, despite the fact that the Arceo affidavit did not actually address whether the Latent Print Laboratory possessed any evidence. Nevertheless, we are obliged to defer to a trial judge’s findings of fact when they are supported by the record, Esparza, 282 S.W.3d at 921, and the record does support the trial judge’s ultimate conclusion that Greenland failed to satisfy his burden of demonstrating that evidence still exists and is in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A). Greenland’s counsel admitted as much at the hearing on his motion. Further, as explained below, because Greenland did not challenge other findings of the trial court that preclude him from obtaining an order for DNA testing, we would be compelled to affirm even if the trial court had erred in finding an absence of testable evidence. Identity Was Not an Issue Post-conviction DNA testing provides a convicted person with “an avenue by which . . . to establish his innocence by excluding himself as the perpetrator of the offense.” Birdwell, 276 S.W.3d at 646–47; see Blackwell v. State, 235 S.W.3d 231, 232–33 (Tex. Crim. App. 2007). The trial court could order forensic DNA testing only if it found that identity was an issue in Greenland’s case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). The trial court expressly ruled that it found “in the negative the issues listed in Article 64.03(a)(1),” and Greenland does not challenge that conclusion on appeal. Exculpatory Results Would Not Exonerate Finally, to obtain a DNA test, Greenland had to show that he “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). The trial court expressly found that Greenland failed to satisfy this requirement. Greenland did not challenge that ruling on appeal. Conclusion We conclude that Greenland did not meet the statutory requirements for post-conviction DNA testing, and we hold that the trial court did not err in denying his motion. We therefore affirm the order of the trial court. Michael Massengale Justice Panel consists of Chief Justice Radack and Justices Bland and Massengale. Do not publish. Tex. R. App. P. 47.2(b).