Rivera v. State
Rivera v. State
Opinion of the Court
OPINION
Appellant was convicted of capital murder — murder in the course of aggravated sexual assault
A. Background
1. Events leading to trial
The victim, a three-year-old child, was last seen alive on July 9,1993, with Veronica Zavala. The next day, the child’s naked body was found floating in a reservoir. Dr. Marguerite DeWitt, a pathologist, testified that the child had been in the water for eighteen to thirty-six hours but did not drown. Instead, the cause of death was ligature strangulation. DeWitt further testified to observing two tears in the child’s anus. She concluded that these tears were due to an external penetration by something larger than the anal opening and were consistent with an adult’s finger penetrating the anus. That same day (July 10th), Zavala confessed to being involved in the murder and implicated appellant.
On July 11th appellant gave a videotaped oral confession, in which he admitted to strangling the child and to penetrating the child’s rectum with a finger. In addition to the strangulation and the damage to the child’s anus, several other details of appellant’s confession were corroborated by independent evidence:
the child’s underwear had been cut off and tied around his neck with a single knot; the time of death was consistent with the time stated by appellant; the child had been wearing shorts and tennis shoes when he disappeared; and the child’s body was found near a bridge.3
2. Subsequent events
On October 12, 1999, the prosecutor’s office received a typewritten letter purportedly written by Zavala. In the letter, Zavala claimed that she had falsely accused appellant — that appellant was not present when the child was killed and had nothing to do with the crime. Zavala claimed sole responsibility for the murder, but also said that she did not sexually assault the child.
Appellant has executed an affidavit in support of his motion for DNA testing. In the affidavit, he states that he is innocent of the crime and that he was “beaten and coerced” into making his videotaped confession. This coerced confession claim was not raised on direct appeal or in his application for writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure.
In an affidavit, one of the defense attorneys quoted what is allegedly an excerpt from a deposition of Dr. Raul Garza. In that excerpt, Dr. Garza opined that placing a finger in the anus of another human being would result in the shedding of skin cells from which a DNA analysis could be made.
At the hearing on the motion for DNA testing, the prosecuting attorney said that, after conducting an investigation, he had determined that neither the police department nor the prosecutor’s office possessed any biological material related to the case. The prosecutor further remarked that all the existing biological material was in the possession of the trial court. Although defense counsel claimed that the State pos
3. The trial court’s findings
The trial court found appellant’s confession to be compelling and credible evidence of guilt that was corroborated by other evidence. Further, the trial court found Zavala’s recanting statement to be “not credible and no evidence of innocence.” The trial court concluded that appellant was not entitled to DNA testing.
4. Appellant’s claims
Appellant contends that he is entitled to DNA testing on the following items: (1) fingernail clippings taken from appellant, (2) a rape kit taken from Zavala,
B. ANALYSIS
1. Hearing
We first address appellant’s claim that he is entitled to an evidentiary hearing in which the trial court would hear Zavala’s live testimony. We initially note that Keeter is not relevant to the question at hand. That case involved a motion for new trial under the rules of appellate procedure, not a motion for DNA testing under Chapter 64.
To determine whether appellant was entitled to a hearing with live witnesses, we must examine Chapter 64. In interpreting a statute, we are limited to its plain meaning unless the language is ambiguous or its plain meaning leads to absurd results that the Legislature could not possibly have intended.
2. Testing
To obtain DNA testing under Chapter 64, several requirements must be met.
In reviewing the trial court’s decision, we employ the familiar bifurcated standard of review articulated in Guzman v. State: we afford almost total deference to a trial court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demean- or, while we review de novo other application-of-law-to-fact issues.
The State concedes the existence of fingernail clippings and a rape kit,
With regard to the fingernail clippings and the rape kit, appellant has failed to show a reasonable probability that exculpatory results would prove his innocence. Zavala did not admit her involvement or implicate appellant until the day after the child died. Even more time — -possibly eighteen hours or more
Even if one concluded that negative test results supplied a very weak exculpatory inference, such an inference would not come close to outweighing appellant’s confession. Not only did appellant admit to sexually assaulting and murdering the child, but his sexual assault admissions were also corroborated by autopsy results showing injury to the victim’s anus. And although appellant claims that his confession was involuntary because it was beaten out of him, the trial court found against him on that claim at trial,
Moreover, Zavala’s recantation does not cast doubt on the veracity of appellant’s confession. While the autopsy results are consistent with appellant’s confession, they contradict Zavala’s assertion in her written recantation that the child was not sexually assaulted. Also, having been convicted of capital murder with regard to this crime
Appellant has failed to show by a preponderance of the evidence a reasonable probability that exculpatory DNA tests would change the outcome of his trial, much less prove his innocence. Consequently, he is not entitled to a DNA test under Chapter 64.
The trial court’s order is affirmed.
. See TEX. PEN. CODE § 19.03(a)(2).
. See TEX. CODE CRIM. PROC., Art. 64.01, et. seq.
. Rivera v. State, No. 71,916, slip op. at 13 (Tex.Crim.App., March 6, 1996) (unpublished).
. We summarize and include only those findings relevant to the current appeal.
. Although appellant claimed in his videotaped confession that he and Zavala had consensual sex during the events leading to the child victim's death, Zavala claimed in many of her statements that appellant sexually assaulted her. See Zavala v. State, 956 S.W.2d 715, 721-722 (Tex.App.-Corpus Christi 1997, no pet.).
. The request for samples from the victim's anus does not appear in appellant's brief but was advanced before this Court in oral argument. In that regard, defense counsel maintained that appellant was not requesting that the child's body be exhumed but was only requesting any samples that might have previously been taken from the child’s anus.
. 74 S.W.3d 31 (Tex.Crim.App. 2002).
. Id. And in fact, the current rules do not require the trial court to take live testimony, but simply provide that "The court may receive evidence by affidavit or otherwise.” TEX. R. APP. P. 21.7.
. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991).
. See Art. 64.03, passim.
. See Art. 64.04.
. See Art. 64.03(a).
. Art. 64.03(a)( 1 )(A)(i) & (2)(A).
. Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002).
. Id.
. 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
. The State contends that appellant has not proven that the rape kit includes anal samples and therefore DNA testing of the kit could not be used to disprove appellant’s statement in his confession that he had anal sex with Zava-la. Resolution of this issue is unnecessary to the disposition of the case; we will assume
. In a published opinion in Zavala’s case, the Court of Appeals recited that, while Zava-la was questioned by police on the day the victim disappeared, she did not admit her involvement or implicate appellant until the next day, after the child's body had been found. It was only then that she claimed to be a victim of appellant. See Zavala v. State, 956 S.W.2d at 724-725.
. The absence of appellant’s DNA from any anal samples (if they existed) would also be unhelpful in establishing appellant's innocence, as the incriminating evidence could have been washed away during the time the child's body was in water. Moreover, the absence of appellant's DNA would not indicate innocence because it could simply mean none was deposited. In oral argument, defense counsel suggested that the absence of appellant’s DNA and the presence of Zavala’s DNA in anal samples would be exculpatory. Presumably, this suggestion is based upon the assumption that, if the water did not wash away Zavala's DNA, then it should not have washed away appellant's DNA either. Aside from the fact that such an assumption is not necessarily correct, the presence of Zavala's DNA in the child would contradict her written recantation, as she maintained that she did not commit a sexual assault. Moreover, DNA tying Zavala to a sexual assault of the victim would be consistent with appellant’s guilt under the law of parties, and the jury was instructed on the law of parties at his trial.
.Rivera, slip op. at 4.
. See also Zavala, 956 S.W.2d at 721-722.
Concurring Opinion
filed a concurring opinion in which PRICE, JOHNSON and KEASLER, JJ., joined.
I do not read Chapter 64 as prohibiting a convicting court from exercising its discretion to conduct an evidentiary hearing with live witnesses for the purpose of resolving issues under Article 64.08, Texas Code Of Criminal Procedure. With these comments, I join the Court’s opinion.
Reference
- Full Case Name
- Jose Alfredo RIVERA, Appellant, v. the STATE of Texas
- Cited By
- 550 cases
- Status
- Published