## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00209

- CR

___________________________

On Appeal from Crimina l Distri ct Court No. 1 Tarrant County, Texas Trial Court No. 154 104 4R
Before Kerr, Womack, and Wallach, JJ. Memorandum Opinion by Justice Kerr 

### T IMOTHY 

### S COTT 

### S COGGINS 

### , A ppellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury found Timothy Sco tt Scoggins guilty of four counts of burglar y of a
habitation and assessed h is punishment at 47 years ’ confi nem ent for e ach count

. S ee T ex . Penal Code Ann. § 30.02 (a)(1), (3), (d). After t he trial court sentenced Scoggins , he filed a motion for new trial in wh i ch he alleg ed that he had newly dis covered ,

ma terial evidence

— namely, after his trial, he learned that th e S tate ’ s DNA analyst had
be en disciplined for poor job performance

. 1 The trial court he ard Scoggins ’ s motion
and denied it

. 2 On appeal, i n one issue , Scoggins conte nds that the trial court erred i n denying
his motion for new trial

. We disagree for two r easo ns . First, Sco g gins ’ s new l y discovered evidence w ould impeach the DNA analys t only on proce dures not used in Scoggins ’ s case . S econd, other evidence sh owed that

1 Scoggins fi led an original m ot ion for new trial that did not ment ion the newly discovered evidence and an amended moti on fo r new trial , which did. All ref ere nces are to Scoggins ’ s a me n ded motion

. See Fuentes v. State , N o. 07

- 19

- 00328

- CR, 2020 W L 1314485, at *1 (T ex . App.

— Amarillo Mar. 19, 2020, n o pet. ) (mem. op., not desig nated for publication).

2 The trial court orall y denied the motion , made a docket entry s ho w ing that it had denied the motion, an d wrote on its “ Certificate of Proceedings ” that it had den ied the mot ion. We have a ruli ng wi thin 75 days of sentenc ing

. See Tex. R. Ap p. P. 21.8(a). What we do n ot have is a written order denying th e mo tion

. Rule 21.8(b) plainly requires an order in writing only when a new

- trial motion is granted

. Id. 21.8(b). On the other hand, Rule 21.8(c) deems a new

- tr ial motion to be denied if it is not

“ timely ruled on by written order , ” suggesting that an or de r in writin g is always re quired, no matter the rul ing. Id. 21.8(c). Although Rule 21. 8 presents an interesting semantic puzzle , the net effect is the same here: Scoggins ’ s new

- trial motion was denied, and we w ill refer to that den ial as the tri al court ’ s a c t
.3 • the analyst had no per forma nce is s ues with the test specifically used in Scoggins ’ s case and

• the an alyst ’ s supervisor had verified the analys t ’ s results

. Thus, the newly discovered evidence would pro bably not have brought about a
differ ent result

. W e o verrule Scoggins ’ s issu e and affirm the t rial cou rt ’ s judgment s . The Indictment
T he Stat e alle ged four offenses arisin g from a single criminal e pisode in a four

count indictment : (1) S coggins intenti onally or knowingly entered P eggy Han an ’ s h abitation without her co n sent with the intent to commit aggra vated r obbery with a fi r ea rm , id. § 30.02 (a)( 1), (d ) ; (2) Scoggins int entionally or kn owingly entered Peggy ’ s 3 habi tation wi thout her consent with the intent to com mit aggravated assault with a firearm , id. ; (3) S coggins intentionally or knowingly entered Za char y Han an ’ s habitation , w

ithout h is consent, an d atte mpt ed to commit or committe d aggr avated robbery with a firearm , id. § 30.02 (a)( 3 ), (d) ; an d (4) Sc oggins in tentionally or kn owingly en tered Z achar y ’ s hab itation, with o ut his cons ent, and attempted to commit or committed aggravated assault with a firearm

. Id. See id. § 3 .01 (defining criminal episode).

3 Because the facts involve victims who share the same last name, for clarity we refer to them by their first na mes .4 T he E videnc e at Trial Peggy work e d from ho me . One day while she was working, t wo b u r glars paid
her a visit

. T he fir st burgl ar

— whom Peggy could see throu gh the tall ve rtical windows in
her twin front doors

— was dressed nicely , wore a C ub S cout hat , and presented
hims elf as someone looking fo r his mother ’ s lost dog

. Pegg y ob lig ingly unlocked the door, took the man ’ s flier , and relocked the door.
T hen t he first burglar requested some water
. Peggy fetched a bottl e , unlocked the door again, and handed it to him; this time , however, t he first burglar overpowered P eggy to forc e his wa y insi de and

— once ins ide

— pulled a gun on her

. A t some point, the fir st burglar put a bandanna over his fa ce. Aft er the first bur glar satisfied him s elf that no one else was in the house, he
radio ed to someone else b y walk ie

- talkie that the “ coas t [was] clear

. ” T he first bur glar

t hen put on latex gloves and tied Peggy up. T he second burglar

— carrying a rifle and weari ng a mask

— entered Peggy ’ s home and s tarted ransacking it

. Whi le the second burglar sea rched, t he first burglar

s tay ed with Peggy

. The b urglars ’ tim ing proved thorny ; t hey too encou ntered unexpecte d visitors

. First , a glass contractor

— who had an appoint me nt wit h P eggy

— came to the
door

. The fir st bu rglar told the se cond one to take off h is ma sk and gloves , an swer the do or, and get rid of the contractor

. P as sing himself off as P eggy ’ s nephew, t he5 second bur glar t hen spoke to the contract or, told him th at th e appointment had been cancelled, and said that he would call his au nt to ver i fy

. A couple of minutes later , t he
second b urglar returned and related that he had not been able to reach his aunt
. Obliv io us to wh at was going on , t he contra ctor inst ructed the second burglar to have Peggy call his office to set up another app ointmen t and l eft. The burglars had less luck with the se cond unexpecte d visitor. M oments after the contractor left, Peggy ’ s son Zachary returned home

. The burglars waited in ambush, a n d when they heard Zachary go up the back staircase, the s econd burglar yelled out to Zachary t o stop. Zachary described walking up the stairs, hear ing
someone call out his n ame , t urning around , and seei ng a man wearing a black ski
mask pointin g a rifle at his face

. When Zachary did not st op, the firs t burglar told the
second burglar to “ go get him, ” and the second burglar took off after Z achary

. Za c hary e scaped by run ning to a second

- floor ba lcony a nd, from there , jum pi ng down

ont o a portion of the first

- story roof, scamperi ng across the roof to another side of
the hous e , and jump ing off near the driveway

. 4 Quickly changing t ack, t he first burg lar

4 I n a matter of minutes, Z achary went from burglary victim to bu rglary suspect

. S eekin g help , Zachary knocked on his neighbor s ’ doors u n til he found on e that was unlo cked, so he entered. Inside was a teenage girl watching television, but rather than calling the police , she insiste d on calling her father

. Impa tient, Zach ary left. At the next hous e , Zac hary succeeded in getting someone to call fo r help

. W alk ing back to his house , Zachary encountered t he teenage girl ’ s father

. While holding a hand gun t o his side , th e father orde red Za chary not to move and to put his hands up

. T h e father then called the p ol ice t o report Z a chary.6 said, “ [W]e got to get out o f here now, ” and t h e two burglars r an out the front door.
Althou gh still tied up, Peggy managed to phone 911

. A detective later found a latex glo ve in the master bedroom

— where the second
but n ot the first burglar h ad been

. Th e glove was similar to the type that Pe ggy had

seen t he first burglar wear ing

. The dete ctive sent the glove away for DN A testing. At trial, a DNA analyst testi fied that she found DNA on the latex glove , and after the DNA was tested, Scoggins ’ s name turned u p in a DNA

- profile database as a match.
B ased o n that match, the detective obtained a warrant and arrested Scoggins as the
second bur glar , the one who had entered the master bedroom. 5
A t trial, the only person to have see n t he second burglar without a mask on

— the co ntr ac t or

— could not identify him

. The jury found Scoggins guilty of each count in the indictment.

This fath er was not th e o nly person with a weapon at home

. Zachary him self had an AR

- 15 and a Walth er PP S locked a way in his bedroom , but he ran becaus e he thou gh t that he wa s b ein g cha sed and would not have time to retri eve his guns.
T he Texas Court of Crimi nal App eal s once commen ted that burglary of a habitation was a serious offense because it increased the chances of v iolent confr ontations. See Blankens hi

p v . State , 780 S.W.2d 198, 207 (Tex. Crim. App. 198 9 ) (op. on re h ’ g )

. This case underscores that observation.

5 As f or the fir st burglar, t he dete c tive had a suspect in mind, but law enforcement had been unable to lo cate him.7 The E vi dence at th e H earing on Scoggins ’ s M otion for N ew T rial
In Scog gins’s moti on for new trial, he complained that the State ’ s testifying
DNA ana lyst h ad recently been di sciplined for poor work performance

. 6 At the new

t rial hearing , the an alyst ’ s superviso r testified t hat on the same date the ju ry rendered
its ver dict on Scoggi ns’s case , the DNA lab withdre w the analyst ’s authorizat ions to analyze data and issue reports. The analyst had tes t if

ied at Scoggins ’ s trial six days
earl ier

. The supervisor explain ed th at the analyst ’ s shortcom ings occurred when she analyz ed DNA mixtures ; in contrast , Scoggins’s case involved a high

- quality single

source, so the super v

isor asserted that the analyst ’s con clusions we re correct beca use the analys t had no iss ues when analy zing single

- s ource DNA evide nce . The supervisor
characterized a na l y zing single

- source DNA as “ very str aight forward ” and analyzing
DNA mix tures as “ much m ore co mple x . ”

6 In his brief, S co g gin s complains th at the Sta te violated the Micha el Morton A ct an d B rady v. Maryland by not disclosing t he analys t ’ s shortcoming s ea r lier. See T ex . Code Crim. Proc. Ann . art. 39.14 ; 373 U.S. 83, 87, 83 S. Ct. 119 4 , 1196

– 9 7 (1963)

. B u t h is motion for new trial doe s not rai se that argument : Scoggins relied strictly on article 40.001 of the T exas Code of Criminal P rocedure and cases construing it. The trial court heard and effectively d enied only the motion f or new trial. Sco ggins had made two post

- convicti on requests under B rady and th e Michael Morton Act , but a t the new

- trial hearing s , Scoggins did not co mplain about the S t ate ’ s f ail ure to comply with either o f his post

- con viction r eques t s . Scoggins has not preserved this portion o f his appella te argument. See Tex. R. App. P . 33.1 ; Keeter v. S tate , 175 S.W.3d 756, 759

– 60 (Tex. Crim. App. 2005)

.8 The supervisor said th at she had not redone the lab work ; that is , she had not taken and ana lyzed a new sam p le because the analyst had not been disc iplined for her
lab work

— “ t he actual eviden ce cutting,

. . . the pipettes [,] t he d ilutio n, the

a mpli ficatio n, [and ] all those di f ferent steps

. . . . ” The State pressed the supervisor to explain why she had n ot redone the lab work : Q. I want to ask you something just for clarification. You said that she

-- you ’ v e reviewed her w ork, but you did not actua lly go in and

. . . reprocess the DNA samples and the reference sa mple. Why did you not do that? Why is that what you called “ not necessary ” ? A. There were no issues det ected with the work. The e xpected results were consistent w ith the quantitative value s obtained. It was a high quality, single source p rofile. I saw no reason for the samples to be reprocessed, to consume additional evidence when it was unnecessary. The an alyst h a d bee n disciplined for errors in an aly zing data or cal culat ing

s tatistic s specifically w hen mixtures were involved ; it was t he mathematical part that
the anal ys t was no longer al lowed to do

. Even then, none of the ana lys t ’ s

m athema tical errors w ere what the superv i sor called “ critical erro rs, ” that is, the analyst ’ s results had n ot led to a false inclusion, a false exclusion, or a false
inco nclus ive. Th e supervisor had performed a complete re v iew of the analy st ’ s w ork
in Scoggins ’ s cas e and was conf i dent that the analyst ’ s results were accurate.9 Although not entering a written order, t he trial court denied Scoggins ’ s motion
on the record

. 7 Applicable Law
A defen dant h as a right t o a new trial whe n mater ial e vidence fav orable to him
has been disco vere d after trial. Tex. Code Crim . Proc. Ann

. art. 40.001. To meet th e

mat erialit y stand ard, a defendant must show that (1) the newly discovered evidence was unknown or unavai lable t o the defendant at the ti me of trial; (2) t he defendant’s failure to discover or obtain t he new evid ence was not due to the defenda nt ’ s lack of due diligence ; (3) the ne w evidence is admissible and not merely cumulativ e, corroborative, collateral, or impea c hing; and (4) the new e viden ce is probably true an d will probably bring abo ut a diff ere nt result i n a new trial

. Carsner v. State , 444 S.W.3d 1, 2

– 3 ( Tex. Cr im. App . 2014). Courts do not fa vor

m otions for new tr ial based on grounds of newly disco vered evidence and view them
wi th great caution. Frank v. S tate , 183 S.W.3d 63, 71 (Tex . App

. — For t Worth 2005, pet. ref ’d) (citing Drew v. State , 743 S.W.2d 207 , 225 ( Tex. Cr im. App. 1987)).
Sta ndard of Review
The trial court has discretion when decid ing w hether to grant a new trial base d on newly discovered evid ence, and absent an abuse of discr etion , we will not reverse

7 Whether th e new

- trial motion was ex p res sly denied or deeme d overruled by operation of law under Rule 21.8(c) is irrelevant.10 its ruling

. Keeter v. State , 74 S.W.3d 31, 37 (Tex. Crim. App. 200 2)

. A n abuse of
discre tion occurs only if the trial judge act ed arbitrarily and in a manner t hat was
cl e ar ly e rroneous . Okonk wo v . State , 3 9 8 S.W.3d 689 , 694 (Tex. Crim. App. 201 3 ). Put
anothe r way, an abuse of discretion occurs o n l y if no reasonable view of the record

—

seen in the li ght most favorable to the trial court ’ s ruling

— supports the trial court

. Id.
T he q uestion is not how w e would have view ed the fact s or how we would ha ve rule d

. Id. We uphold the trial court if it s ruling f a lls wi thin the zone of reasonab le disagreeme nt. We a d v. State , 129 S.W.3d 126, 129 (T ex. Crim. App. 2004).
Di s cussion
A. The fir s t two elements
The State concedes that Scoggins met th e fi rst two elements: (1) the new ly
discovered evidence was unknown or u navaila ble t o Scoggins at the ti me of trial and (2) Scoggins ’s failure to discover or obtain t he new evid ence was not due to a lac k of
d ue diligence

. But the State c ontends that meetin g two of t he four el ements is not enough; Scoggin s had t o mee t all four. See Cars ner , 444 S.W.3d at 3

– 4

. T he St ate ’ s concessions are important and carry great we ig ht , but they are not binding

. Pickrom v. State , Nos. 02

- 19

- 00188

- CR, 0 2

- 19

- 00189

- CR , 2020 WL 1808485,
at * 2 n.3 (T ex. App.

— Fort Worth A p r . 9, 2020, pet. ref ’ d

) (mem. op ., not designated
fo r public ation ) (citing Sal dano v. State , 70 S.W. 3d 873, 884 (Tex. C rim. App. 2002), modified on other gr ounds sub silen ci o by Karenev v. State , 281 S.W. 3d 428, 4 34 (Tex. Crim

. App. 2009) )

. Even when the State makes conc essi on s, we must ind ependently11 examine the reco rd because the proper admin istration of criminal law ca nn ot b e left to the parties ’ stipu l ations. Id. For our purposes, though, we need not decid e whet her Scoggins met the first
and second el ements
. See Te x. R. App. P. 47.1. A s shown b el ow, because Scoggins

c annot meet the th ird and fo urth elements, we must o ve rrul e his single appellate issue.
B. The t hird el e ment By show ing that the ana lyst had made errors in other cases, Scoggins argues
that he could cast doubt on her wo rk in his case . But Scoggi ns ’ s evidence would s erve merely to impeac h the analyst , a nd evide nc e th at merely impeaches i s not a valid basis for gran ting a new

- trial m otion b ase d on newly dis cover ed evidence. See Cars ner , 444 S.W.3d at 2

– 3. The proposed evidence went strictly to the analys t ’ s credibility, not
to whether the analyst was “ mistaken up on a m ater ial matter in the case. ” See J o nes v. S tate , 711 S.W. 2d 35, 37 n.5 (Tex. Crim . App. 198 6).
C. T he fourth element
And based on the supervisor ’ s tes timony, Scoggins coul d not show that the analyst had made any errors in hi s c a se ; just the contra ry, th e evi d ence would show
that the analyst ’ s w ork was reliable. Thus, Sco gg ins could not show that th e evi dence
would have probably br ought about a differen t result

. See id.12 D. Ru ling
We hold that the trial court did not abus e its d is cretion in denying Sc oggins ’ s

mot ion for new t rial (or allowing it to be overruled by operation of law) and o ve rrule Scoggins ’ s sole issue. S ee Keet er

, 74 S.W.3d at 37

. Con clusion
Hav ing overr ule d Sco g gins ’ s s ole is sue, w e affirm the t rial court ’ s judgment s .

/s/ Elizabeth Kerr Elizabeth Kerr Justice
D o No t Publish Tex. R. App. P. 47.2(b)
Delivered : September 3 , 2020