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

___________________________ No. 02

- 20

- 00083

- CR

_________ _

_________________

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 110 2114R
Before Kerr, Birdwell, and Bassel, JJ. M em orandum Opinion by Justice Bassel 

### G ERALD 

### S HERARD 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION This is an appeal from a finding of n o reasonable probability of non conviction following the results of post conviction forensic DNA testi ng . Appellant Gerald
Sher ard complains on appeal that (1) the trial court did not hold a hearing upon completion of DNA testing in 2014 , (2 ) the State wit hheld exculpatory eviden ce, and (3) the trial court ’ s “ no reasonable pro bability of non conviction ” fi nding was

erron eous. We affirm.
B ACKGROUND
Shera rd was indicted for the offense of sexual assault by contact of a child under the age of s ev enteen , a lleged to have been committed in October 2006

. 1 Se e Tex. P enal Code A nn. § 22.011(a)(2)( C ). In D ecemb er 2006, h e signed a handwritten

statement d escribing the offense and , at some point, he also gave a videotaped

c onfession

. He later signed a judicial confession , ente red a guilty plea , and was
sentenced to fifte en years ’ conf i neme nt pur suant to a plea bargain agreement

. I n A p ril 2013, Sherard sent a handwritten letter to the t rial court requesting
DN A t es ting. The court granted that request and orde red the Texas Department of
P ublic Safety Crime Laboratory ( “ Crim e Lab ” ) to conduct post conviction DNA
testin g on the victim ’ s sealed sexual assau lt kit

. The order required the Crime Lab to

1 The indictment contained a second count that w as not the basis of Sherard ’ s con viction and is not at issue in this app eal.3 i mm edi ately provide the court , the Tarrant Co unty Distr ict Attorney ’ s Office, and
Sherard with the writte n re sults o f all testing

. On May 22, 2014, t he Cr im e Lab issued a forensic biology la boratory report stating that (1) a presumptive test for the presence of semen on the victim ’ s vaginal
swabs was negative, ( 2) semen specific constituents , but not spermat o zoa , were de t ected on a vaginal smear slide , and (3) a presumptive test for the prese nce of

semen on the victim ’ s left neck swabs was neg ativ e. This report wa s addressed to the District Attorney ’ s Office but it does not reflect that it was sent either to the trial
court or to Sherard.
The Crim e Lab also issued a DNA laboratory report on M ay 22, 2014, but th at report i s not in our record , presumably because it was a mended on June 27, 2014

. T he June 2014 amended DNA laborator y report stated : T he DNA profile [ from the left n eck swabs ] is consistent with a mixture from an unknown male and an additional contrib utor
. Due to the low level of data above our analy tical threshold, no compa risons wil l be made to the additional contri b u tor. Gerald Sherard is excluded as a cont ributo r to this profile. This report , like the May 2014 report, wa s addre ssed on ly to t he Distric t Attorney ’ s Office

. In November 2015, the Tarrant County Dis trict Attorney informed Sherard b y lett er that t he Texas Forensic S ci ence Commissio n was “ reviewing certain DNA mixture interpretation protocols relating to a common st a t i stic al method used by4 Texas laboratories for the interpretation of DNA test results , ” and that Sherard ’ s case

“ may pot e

ntial ly be impacted by the results of [that] revi ew . ”
I n August 2019, the Crime Lab issued a supplem ental DNA laboratory report

“ to commu nicate results of data re

- interpretation on previou sly reported D NA data using current guidelines. ” This suppleme ntal report state d : The DNA profil e from [the left neck swabs] is interpreted as a mixture of t hr ee individuals with the victi m as an assumed contributor. Based on the likelihood ra t io result, it is inconclusive whether or not Gerald Shera r d is a contribut or to this profile. Aga in, the report wa s addressed only to the District Attorney ’ s Office

. Following rec eipt of th e August 2019 report , the State filed a motion r equesting

a “ no reasonable probability of non conviction ” finding on the results of the
post conviction DNA testing. The tri al co urt conducted a heari ng on t hat motion on November 13, 2019. Sherard testified at the hearing that he ha d undergone hernia surgery a week or
two before he entere d his guilty plea and that he was still taking pai n medication when he entered that plea. H e st ated that the medication caused h im to be sleepy and that
he did not recall si gning anythi ng at that time

. Sherard also asserted tha t he had been pressured into pleading guilty. He a cknowledged , though, that he did not te ll his

a ttorney at the time of his plea e ither that he was taking medication or that he felt
press ured to plead guilty.5 Melissa Haas, a DN A supe r vi sor with th e Crime Lab, explained that the May 2014 report was an initial biological screening for the pre s ence of biological fluids. The June 2014 report , on the other hand, addressed DNA testing results. Haas al so explained tha t the Au gust 201 9 report was the result of a reint erpretation of DNA samples performed because the Crime Lab had i nstituted new mixture in terp re tation protocols. The reinterpre tation c apture d more data and resulted in the d iscovery of a

“ tra c e third contributor in the pr ofile [from the left neck swabs] that was not seen in the original testing

. ” A n a nalysis comparing S herard ’ s DNA was i nconclusive, meaning that he could neit her be included nor excluded as a contributor

. The State f iled a post

- hearing motion again reque st ing a findi ng of no reasonable probability of non convict ion ; Sherard filed a post

- hearing motion requesting the opposite finding.
O n Marc h 31, 2020, t he trial court e ntered a written findin g that the forensic DNA testing did not “ create a reasonable probab ility that the defendan t would not
ha ve b een convicted had its result s been available during his trial

. ” That wr itten finding was rescinded and a new , substantively identical fin d ing was entered on April 22, 2020 , bec ause neithe r party had received notice of the court ’ s or igin al finding.6 DISCUSSION Chapter 64 Forensic DNA Testing Chapter 64 of the Texas Co de of Criminal Proc ed ure provides that “ [a ] convicted person may s u bmit to the convicting court a motion for forensi c DNA testing of evidence that has a rea sonable li kelihood of containing biological material

. ”
Tex. Code Crim. Proc. Ann. art. 64.01 (a

- 1)

. Even a person who has enter ed a guilty plea or made a confession o f gui lt may submit such a motion, and the convict ing

court may not deny the request fo r D NA testing s olely on th e basis of such a plea or

con fession

. See i d. ar t. 64.03 (b )

. After examining the DNA test result s , “ the convicting court shall hold a hearing a nd make a finding as to whether, had the results been available during the
trial o f th e o ffense, it is r ea sonably probable that the person wo uld not have been
convicted. ” Id. art. 64.04

. A

rticle 64 .04 Hearing
Art icle 64.04 requires the trial court to hol d a live hearing after it examin es DNA test result s and before it mak es a finding on th e e ffect of those re s ults. See id. ; see also Jones v. State , 161 S.W.3d 685, 690 (Tex. App.

— Fort Worth 2005 , pet. ref ’d

) (holding that failure to conduct a live hearing is error). The trial court in this case
held a n A rticle 64.04 hearing i n November 201 9. Sherard con tends, though, that t he

court erred by failing to hold a hearing years earlier

. Specifically, in his first point, he7 argues that the cou rt was r equired to hold a hearing up on t he issuance of th e Crime
Lab ’ s June 2014 for ensic DNA rep ort
. Th e Sta te responds that A rticle 64.0 4 does no t include any deadline by which a
trial court mu st conduc t its heari ng and that , even in ideal situations, the cou r t and the parties require time to evaluate the te st results in con junction with all other evidence
in the case. The State then lists four “ unusual circumstances ” t hat it contends expl ain
and e xcuse the delay in this case. The re c ord does not reflect some of these
circumst an ces and does no t show that the others w ere the actual cause of the delay in
ho lding the Article 64.04 hearing

. 2 In any event, we need not determine whether the trial court erred by not holding a hearing closer i n t ime to the issuance of the June 2014 report be cause any such error w as not harmful. The asserted error is not constitut ional and we there fore must disreg ard it if it does not affect Sherard ’ s substantial righ t s . See Tex. R. App. P.
44 .2 (b) ; Jones , 16 1 S. W.3d at 690

. In making th is assessment, we “ c onsider everything in the record including the character of the error and its relationship t o other
evidence

. ” Jones , 161 S.W.3d at 690 ; see Schutz v. State , 63 S.W. 3d 442, 444 (Tex. C rim. App. 2001)

.

2 Specifically, the recor d does not sho w that t he t rial c ourt did no t immediately receive the June 2014 report or that the Crim e Lab withdrew that report pending reinterpretati on . It also does not show tha t the T e xas Forensic Science Commission ’ s review of certain DNA mixture protocols (wh ich apparentl y b egan in late 2015) or the Crime Lab ’ s imple men tation of probabilistic ge notyping software caused the delay in holding the hearing.8 Sher a rd conten ds that his substant ial righ ts were adve rsely affected in t he following respects:

• h e was not provided an opportuni ty to be present a nd object to any perceived error in the proceedings;

• he was not able to h ave his own expert appoi nted to review t h e DNA tes t results and to tes tify at the hearing; and

• he was deprive d of the opportunity to present the June 2014 report

— wh ich stated that he was excluded as a contributor to the DNA profile from the left n eck swabs

— to the trial court

. Th e record refutes eac h of these contentio ns. Sherard was pres ent and represented by counsel at the N o vember 2019 A rticle 64.04 he ari ng. He c learly had advance notice of that hearing as he was bench

- warranted to a ppear and testify, he
and the S tate had agreed befo rehand to the admiss ion of the three Crime Lab reports

as exhibi ts , and he had arranged to call Haas as a witnes s . In addition, n oth ing in the
record demonstrates that Sherard was prevented from asking the cour t to app oi nt an
expe rt to revi ew and testify about the DNA test results

. Finally, Sherard not only had the opportunity to present the June 20 14 report to the trial court , he int roduced that report as an exhibit at the November 2019 he aring and questioned H aas exten sively
about it

. The r ea l basis of Sherard ’ s claim of harm is that if the trial court had held its hearing earlier , it would not have had the benefit of the August 2019 report stating
th at Sherard could neit h er be included nor e x cluded as a contributor to th e DNA profile from t he left neck swab s . Instead, the court would have had only the June9 2014 report stati ng t hat he was exclud e d as a co ntributor. Significantly, Sh e rard does

not dispute that th e A u gust 2019 report is based on a more advanced or pre cise

s ci entific method than the June 2014 report , nor does he argue that the A ugust 2019 report is in accurate
. His positi o n is simp ly that the Ju ne 201 4 report is favorab l e to him and the August 2019 report is not. Therefore, he concludes, he was harmed by
the h earing delay because it allowed the trial court to consider the unfa vorable report.
H arm anal ysis requires that “ w e consider whether a part y had a right to that
wh i ch the error denied. ” Johnson v. State , 72 S.W.3d 346, 348 (Tex. Crim. App. 2002)

. We cann ot conclude that Sherard had a right to have the trial court ’ s consideration of
DNA test resu lts limited to a repo r t tha t w a s later determine d t o be inaccurate.
I r onically, Sherard urges that “ [t] he overarching purpose of chapter 64 of the T exas Code of C riminal Procedure is to facilitate the search for truth. ” The search for truth
in this ca s e was aid ed , not hindered, by permitting the tri a l cou rt to consider bot h the June 2014 and Au gust 2019 DNA test reports. In any event, any error in delaying the Article 64.04 hearing is also harmless
bec ause the June 2014 report doe s not create a re ason a ble proba bility that Sherard
would not have been convicted if that repor t had been available at the time of trial

. As explained below in the context of Sherard ’ s third point, excluding him as a contributor to the DNA profile from the victim ’ s neck does n o t cast af firmative doubt on the validity of his c onviction for sexual as sault

. See Dunning v. State , 572 S.W.3d 685, 69 3 (Tex. Crim. App. 20 19) (s tating that excluding defendant as majo r10 contributor to tested items was insufficient, in and of itself, to s atisfy Ar ticle 64.04 burden). Assuming without deciding that the trial c ourt erred by not holding a n A rticle 64.04 hearing closer in time t o the issuance of the June 2014 report, we hold that the
error did not affect Sherard ’ s subst antial rights and is ha r mless. See Tex. R. App. P.
4 4 .2(b). We overru le Sherard ’ s first p o i nt
. Withholding Exculpatory Evidence In his second point, Sherard asse rts that the State withheld exculpatory evidence by f ailing to tim ely disclose the June 201 4 report
. See Brady v. M a ryland , 373 U.S. 83, 87 , 83 S. Ct. 1194, 1196

– 97 (1963) ; Tex. Code Crim. Proc. Ann. art. 39.14(k).
He contends that he was not aware of the report ’ s existence until the State appended
it to it s September 2019 motion seeking a “ no r easonable probability of

non con viction ” finding

. In support of this con tention, Sherard asks us to infer that he must not have been aware of the June 2014 report b ecause he did not men tion that report in his April 2 016 motion asking the court to appoi n t new couns el.
The State asserts t hat it did timely discl ose the June 2014 repo rt 3 and appends
docu ments to its brief supporti ng that assertio n. But because t hose documents were not before th e trial court , we cannot consider t hem in resolv ing this appeal

. See Asberry v. State , 507 S.W.3d 227, 229 (Tex. Crim. App. 2016) (holding that appellate

3 The State also argues that A rt icle 39 .14(k) does not apply to this case and that Bra dy does not impose any post conviction duty to d isclose. O u r dis position of Sherard ’ s second point rende rs it u n necessary to address these argume nt s .11 court co nsiders all evidence that w as before the trial court before it made its ruling )

. We cannot fault the State for omitti ng these doc uments from th e reco rd , though,
because the record als o refle ct s that Sherard n ever complained in the trial court about

a ny fa ilure to disclose exculpato ry material

. In other words, the State had no reaso n

to introduce evidence establishing th at it ti mely discl osed the June 2014 r eport because it was not made aware that there was an y dispute about the matter

. To preserve error f or appel late review , a part y must have made a complaint to
the trial court “ by a timely requ est, objecti on, or motion that sta ted the grounds fo r the ruling that the complaining party sought from the trial cou rt with sufficient specificity to make the tria l court aware of the compla int, unless the specific grounds were apparent from the context.” Clarke v. State , 270 S. W .3d 573, 579 (Tex. Crim

. A pp. 20 08 ); see Tex . R. App. P. 33.1. This requ irement applies to B rady error. See
Wilson v. State , 7 S.W.3d 13 6, 146 (Tex. Crim. App. 199 9) ; In re A.C. , 48 S.W.3d 899, 905 (Tex. App.

— Fort W orth 2001 , pet. denied)

. One of t he pu rpose s of t he preservat ion rule is to afford op posing counsel an
opportun ity to respond to the complaint. Douds v. State , 472 S.W.3d 670, 674 (Tex.
Crim. A pp. 2015)

. In this case, if Sherard had raised his Brady com plaint in the trial court, the State wo uld have had the opport uni ty to demonstrate on t he record that the compla int lacked merit. Because Sher ard did not make the trial court a ware of his compla in t, the alleged error is not preserved for our review. See Tex. R. App. P. 33.1.
We overrule Shera rd ’ s second point

.12 “ No Rea sonabl e Pro bability of Non c onviction ” Finding
A rticle 64.04 standards In his final point, Sherard asserts that t he trial court erred by fin ding that there is no reasonable pro bability that h e would not have been convicted if the DNA test
results had bee n a vaila ble at the time of t rial.
The s tandard a tr i a l court applies in making its Articl e 64.04 finding is whether
th e DNA test re sults “cast affirmative doubt upon the validity of the inmate ’ s conviction.” Flores v. S tate , 491 S.W.3d 6, 9 (Te x. A pp.

— Houston [14th Dist.] 2016 , pet. ref ’ d

) (qu oting Raby v. State , No. AP

– 76,970, 2015 WL 1874540 at *5

– 6 (Tex.
Crim. App. Apr

. 22, 2015 ) (not designated for publication) ). We , in turn, review the
trial court ’ s A rticle 64.04 finding by applying a b i fur cated standard of review

— we afford “ al most tota l defer ence to a trial court ’ s resolution of historical facts and mixed questi ons that turn on credibility and demeanor, but we review de novo mixed questions that do not turn on cr edibility and demeanor a nd q uestions of law. ” Dunning , 572 S.W.3d at 692 ( citing Rivera v. State , 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) )

. In addition , “ [w] hen the trial court does not enter separate findings, we i mply findings necessary to support the ruling s o long as they a re r eas onably supported by
the record. ” I d. (citin g Guzman v. State , 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) )

. Sherard ’ s guilty plea
While a guilty plea does not preclude a favorable Article 64.04 finding, it is

“ typically strong e vidence supporting a no n

- fa vora ble finding , ” and should be given13 great wei ght “ if there is no reason to believe that [the guilty ] plea was inaccurate or
unreliable

. ” Id. at 694

– 95

. Sherard contends that his guilty plea should not be given
great weight b ecause it was involunta ry . Sher ard testified that he felt pressur ed to ple ad guilty and that he was under the
influence of medication i n May 2008 when h e signed a jud icial confession and entered his guilty plea in co urt
. 4 But h e also testified that h e did not t ell his attorney at the
time of his plea that he was taking medication or that he felt pressured to plead guilty

. In fact , the record does not co ntain any indication that Sherard asserted that his plea
was invo luntary until such an a ssert ion wa s mention ed in a court memorandu m dated J uly 20 1 0

— over two years after Sherard entered his ple a . Assessing t he voluntariness of Sherard ’ s guilty ple a require d the trial court to resolve historical facts and mixed questions that turn ed o n S h e rard ’ s credibility and
demeanor

. We t herefore give almost total defer ence to the trial court ’ s implie d finding that Sherard ’ s guilty plea was, in fact, voluntary. See id. at 692. As a re sult,
that guilty plea weigh s heavily i n support of the court ’ s non favorable Article 64.04 finding

. See id. at 69 4.
We now address whether Sherard ’ s guilty plea , judicial confession, and
hand written confes sion are “ so underm ined by the [D NA] test results that it is

4 Sherard does not argue that his December 8, 2006 ha ndwritten confession (which was given less than two months after the offense is a lleged to have been committed ) was m ade unde r duress or under the effect of medicat ion. He does not addr es s that confession at all.14 reasonably probable that a fact finder would not ha ve co nvicted [him] had the tests
been avai lable at t rial despite the inculpatory evidence

. ” Id.
The DNA labor atory reports The trial c ourt ha d before it two DNA laboratory repo rts, one that ex cluded
Sherard as a contributor to the DNA profile retrieved fr om th e victim ’ s neck and on e that neither included n or excluded him as a contributor to that DNA prof ile. The
trial co urt also heard testimony that the second report was a rein terpretation of the original D N A samples using a new meth od ca pable of capturing more data. This more precise method revealed the presence of a trace third contributor that was not
seen in the June 2014 test and re ndered the test results inconclusive conc erning
whether Sherard was or was not a contri butor

. The i nconclusive Augu st 2019 te st results do not cast affirmative doubt on the

va lidity of Sherard ’ s con viction

. See Flore s , 491 S.W.3d at 9 (reciting affirmative doubt

st and ard) ; see also Cate v. State , 326 S. W.3d 388, 390 (Tex. App.

— Amar illo 2010 , pet. ref ’ d

) ( stating that inconclusi ve eviden ce does not make innocence more or less probable). Those results also do not call into question the accuracy or reliability of
Sher ard ’ s guilty plea ; they only “m uddy the waters.” S ee Dunning , 572 S .W.3d at 6 95

. Indeed, the same is tr ue of the June 2014 test results

. Sherard was indicted for causing the female se xual organ of a child younger than seventeen years of age to contact hi s sexual organ

. See Tex. Penal Code An n. § 22.011 (a)(2)

. T hat is the offense to which he confes sed and pl eaded guilty , and the15 offense for which he was convicted. The Ju ne 2014 re port states that Sherard is
excluded as a contrib utor to the DNA profile from the victim ’ s neck

. The nec k is not

a s exual organ

. Further, it would not h ave been n ecessary for Sherard to touch the
victim ’ s neck in order to commit the offense

. C o ns equentl y, e ven if Sherard were excluded as contributing to the DNA profile taken from the left neck swabs, that
exclu sion do es no t cast affirmative doubt on the validity o f his conviction. See Dunning , 572 S.W.3d at 693 ; Flores , 491 S.W.3d at 9

. Again, it would only “ mudd y the

waters. ” S ee Dunning , 572 S.W.3d at 69 5. Finally, Sherard argues that the M ay 2014 fo re nsic biol ogy laboratory report exculpates him bec au se it st ates that a presumptive test for the presence of semen on a vaginal swab was negative and th at semen specific constitue nts , but no t spermatozoa , were detected on a vaginal smear sl ide

. H e arg ues t ha t this report supports his defense th at no offe nse occurred. But Haas t esti fied that no semen would be present if there had been no ejacul ation. And Sherard ’ s handwritten confession states that he attempted to put his penis i nto the vic tim but was

unsu ccessful. The mere a bsence o f semen in the vict im ’ s biological samples thus has little to no exculpatory value

. Giving d ue weight to the inculpatory evidence

— in cluding Sherar d ’ s guilty plea
and confessions

— an d reco gnizi ng th at the Crime Lab reports have l ittle to no

ex cu lpatory value , we conclude that the trial cour t di d not err by finding that there is16 no reasonable pro bab ility that Sherard would not have been convicted if th e DNA
test results had been available a t the time of tri al. We overrule Sherard ’ s third p oint

. P ost - H earing D NA T est R esults In his reply brief, Sherard inform s us of a “ factual matter ” that arose afte r the parties ’ opening briefs were filed. He asserts that the major contrib utor to the DNA profile fro m the l eft nec k swabs has now be en identified , a nd he attache s documents
to his brief in support of that assertion. The State acknowledg es that the majo r contribu tor has been iden tified but argu es that th is new identification ha s no bearing

on our rev iew o f the trial c ourt ’ s Article 64. 04 finding. N ei ther party ci tes to any authority p ermitting us to consider evidence that was not before the trial court.
The Court of Criminal A p peals has explained that the scope of an appellate

court ’ s review o f a n Article 64.0 4 findi ng is “ all of the e vidence that wa s before the
trial court before it made its rulin g . ” Asberry , 507 S.W.3d at 229

. The information on
whi ch Sherard now relies was not before the trial court before it made its ruli ng. It is
therefore not within ou r scope of review and we d ecline to con si der it. 5

5 We note, however, that whethe r the major contributor to the DNA profile has been identified does not chan ge th e fact that Sherard may or may n ot b e an additional cont ribu tor. The DNA results r emain inconclusive on that point.17 CONC LUSION
We affirm t he trial court ’ s finding that th ere is no reasonable pro bability that
Sher ard would not have been convicted if the DNA test results had been av ailable at the time of trial

. /s/ Dabney Bassel Dabney B as se l Jus tice
Do Not Publis h Tex. R. App

. P. 47.2(b)
D elivered : May 13, 2021