Skinner v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Keller
• Citation: Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009)
• Decision Date: 23 September 2009
• Docket Number: No. AP-75,812.,AP-75,812.
• Parties: Henry Watkins SKINNER, Appellant v. The STATE of Texas.

293 S.W.3d 196

Henry Watkins SKINNER, Appellant v. The STATE of Texas.

No. AP-75,812.

Court of Criminal Appeals of Texas.

September 23, 2009.

Robert C. Owen, Austin, for Appellant.

Lynn Switzer, District Attorney, Pampa, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

At appellant's trial, some evidence was tested for DNA, and some was not. State and federal district courts have both found that defense counsel had a reasonable trial strategy for not requesting the testing of the untested items. Some of the remaining items were subsequently tested. Appellant now requests testing of items that still remain untested. We hold that, in the usual case, the interests of justice do not require testing when defense counsel has already declined to request testing as a matter of reasonable trial strategy. Under that holding, we affirm the trial court's decision to deny the motion for DNA testing.

I. BACKGROUND

Appellant lived with Twila Busby and her two adult sons, Randy Busby and Elwin Caler, both of whom had mental retardation. Between 10:15 and 10:30 p.m., on December 31, 1993, Howard Mitchell came to the residence to take appellant and Twila to a New Year's Eve party. Howard found appellant asleep on the couch and was unable to wake him. Appellant had apparently been drinking. Leaving appellant on the couch, Twila and Howard went to the party, but Twila soon asked to be taken home because her uncle, Robert Donnell, was drunk and was following her around, making rude sexual advances, and generally agitating her. Howard drove Twila home between 11:00 and 11:15 p.m., and left.

At around midnight, Elwin showed up on a neighbor's porch with stab wounds, from which he subsequently died. Twila was found dead on the living room floor of her home, and Randy's dead body was found lying face down on the top bunk bed in the sons' bedroom. Appellant was found by police at Andrea Reed's house, located three-and-a-half to four blocks away, at around 3:00 a.m. When the police found him, appellant was standing in a closet and wearing clothing that was heavily stained in blood on both the front and back.

At trial, Andrea testified that appellant arrived at her house at around midnight and that they conversed for three hours. She did not know how he entered her trailer, but when she saw him, he took his shirt off and laid it on a chair. Appellant had a bleeding cut in his right hand. He heated up sewing needles and attempted to bend them to sew up his hand, and then he asked her to sew it, and she agreed. At some point, he went to the bathroom by himself. During their conversation, Andrea attempted to leave the room and call the police, but appellant stopped her and threatened to kill her. Appellant told Andrea multiple stories about what happened at his home. He claimed that a Mexican came to the door and pulled a knife, that Twila was in bed with her ex-husband with whom appellant got into a fist-fight, that appellant thought he had killed Twila by trying to kick her to death, that Ricky Palmer broke into the house, and that cocaine dealers were looking for Twila and wanted her really bad.

The medical examiner found that Twila had been strangled into unconsciousness and subsequently beaten at least fourteen times about the face and head with a club. DNA testing matched the blood on appellant's clothing to Twila and Elwin. Three bloody handprints matching appellant's were found in the house: one in the sons' bedroom and two on doorknobs leading out the back door.

A toxicological test of appellant's blood, conducted at 5:48 a.m., showed that appellant had 0.11 milligrams of codeine per liter of blood and a blood alcohol level of 0.11.

Defense counsel presented three defenses at trial. First, defense counsel focused on the State's failure to test some of the DNA evidence to show that the State engaged in a sloppy investigation. Second, defense counsel painted Robert Donnell as an alternate suspect who could have committed the murders.

Finally, defense counsel presented evidence that appellant was too incapacitated by his intoxication to have committed the murders. Dr. William Lowry, the defense toxicologist, testified that most people at appellant's level of intoxication would be comatose or asleep, and in any event, between 12:00 and 3:30 a.m., appellant would have been in a stupor, with impaired consciousness, general apathy, and an inability to stand or walk. Dr. Lowry believed that appellant was too incapacitated to travel to different rooms to kill the victims. However, Dr. Lowry was surprised that appellant could locate Andrea's house at midnight and that he asked her to sew up his hand.

Appellant was convicted of capital murder and sentenced to death.¹ This Court affirmed his conviction and sentence on direct appeal.²

In July of 2000, the Gray County District Attorney's Office requested that certain additional items be subjected to DNA testing by GeneScreen. Many items were subjected to traditional genomic DNA testing and/or the newer mitochondrial DNA testing. The genomic DNA testing revealed the following: Twila was included as a contributor to blood on the cover of a blue notebook, a hair found on her back, a hair found in her left hand, and a hair from an axe handle. Appellant was included as a contributor to DNA found on a cigarette butt. Twila and appellant were both included as contributors to a mixed profile from hair in Twila's right hand. Bloodstained gauze reflected the profile of an unknown male individual, and a cassette tape with blood on it reflected a profile that was a mixture of two unknown individuals. No conclusion could be drawn about certain other items.

Mitochondrial DNA testing revealed the following: The mitochondrial profile of Twila, or any maternal relative of hers, was included in one of two hairs found in her right hand (the "first" hair) as well as some other hairs collected from the scene. Appellant was excluded as a contributor to these hairs. Results from the other hair found in Twila's right hand (the "second" hair) and a hair found in the living room were inconclusive.

Several items remained untested, either because the District Attorney's office did not submit them or because the items were submitted but GeneScreen did not test them. Appellant filed a motion for DNA testing under Chapter 64.³ He wanted to obtain testing on two knives found at the scene, a rape kit from Twila, a blood-like substance on a cup towel found at the scene, blood from under Twila's fingernails, and hair and blood from a jacket found in the house. The trial court denied the motion, and we affirmed the trial court's decision on appeal.⁴ In our fact recitation, we pointed to the "bloody palm prints" matching appellant and to the fact that appellant's clothing "was covered in the blood of two of the victims."⁵ In the analysis section of our opinion, we explained that the mixture of appellant's and Twila's DNA in blood found on the hairs in Twila's right hand "demonstrates the intermingling of the victim's and appellant's DNA, probably during the time when she was struggling for her life."⁶ From this evidence, we concluded that "there is nothing about the other items found at the crime scene that, if linked to a third person, would cast doubt on the appellant's presence at the scene of [Twila's] death or the appellant's involvement in the offense. Given this evidence and the other evidence detailed above, the presence of a third party's DNA at the crime scene would not constitute affirmative evidence of innocence."⁷ And, disagreeing with appellant's contention that GeneScreen's reports were ambiguous, we upheld the trial court's decision to deny the production of benchnotes that were created by the company during the course of testing.⁸

Appellant subsequently filed a habeas corpus petition in federal court. The federal district court found against him on all claims, and he filed an appeal with the Fifth Circuit. While that appeal was pending, he filed a second motion for DNA testing in state district court. In this second motion, he requested testing for the same items requested in the first motion, but he claimed that testing was now required due to a new legal development in this Court and new factual developments in connection with the federal habeas proceedings. The trial court denied testing for a number of different reasons, and appellant appealed. It is that appeal that is now before us.

II. ANALYSIS

The trial court agreed with appellant that the evidence he seeks to test still exists and is in a condition making DNA testing possible, that the chain of custody is sufficient and the integrity of the evidence has been maintained, that identity was an issue in appellant's case, and that the second motion for DNA testing is not made to unreasonably delay the execution of sentence or the administration of justice.⁹ Nevertheless, the trial court denied appellant's second motion for DNA testing for a number of reasons: (1) law of the case, as the issues decided in appellant's first application were virtually identical, (2) failure to show ineffective assistance of counsel with respect to the first DNA motion, a showing the trial court believed was the only exception permitting a subsequent DNA motion, (3) failure to meet the "no-fault-of-the-convicted-person" requirement of article 64.01(b)(1)(B) because trial counsel declined to seek DNA testing as "a matter of sound trial strategy," (4) failure to meet the "no-fault-of-the-convicted-person" requirement of article 64.01(b)(1)(B) because appellant failed to meet his burden of proof on the first DNA motion and has not alleged that counsel on that motion was ineffective, and (5) failure to accompany appellant's second DNA motion with an affidavit or the unsworn declaration of an inmate.¹⁰ These reasons...