No. AP-77,054 

IN THE 

Court of Criminal Appeals of Texas 

RODNEY REED, 

 Appellant, 

v. 

THE STATE OF TEXAS 

 Appellee. 

On Appeal from the 21st Judicial District Court, Bastrop County, Texas 

STATE’S BRIEF 

ORAL ARGUMENT CONDITIONALLY REQUESTED 

BRYAN GOERTZ 

Criminal District Attorney 

Bastrop County, Texas 

MATTHEW OTTOWAY 

Assistant Attorney General/ 

Assistant District Attorney 

Bastrop County, Texas 

Texas Bar No. 24047707 

Post Office Box 12548, Capitol Station 

Austin, Texas 78711 

Tel.: (512) 936-1400 

Fax: (512) 320-8132 

Email: matthew.ottoway@texasattorney

 general.gov 

Attorneys for the State 

 

AP-77,054

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 2/23/2015 3:22:39 PM

Accepted 2/23/2015 3:58:29 PM

ABEL ACOSTA

CLERK
i 

IDENTITIES OF PARTIES AND COUNSEL 

Appellant 

Rodney Reed 

Appellant’s hearing and appeal counsel 

Bryce Benjet 

The Innocence Project 

40 Worth Street, Suite 701 

New York New York 10013 

Andrew MacRae 

Levatino|Pace, LLP 

1101 S. Capital of Texas Highway 

Building K, Suite 125 

Austin, Texas 78746 

Appellee 

The State of Texas 

Appellee’s hearing and appeal counsel 

Bryan Goertz 

Criminal District Attorney of Bastrop County 

804 Pecan Street 

Bastrop, Texas 78602 

Matthew Ottoway 

Travis Bragg 

Assistant Criminal District Attorneys/ 

Assistant Attorneys General 

Post Office Box 12548, Capitol Station 

Austin, Texas 78711 

 
ii 

TABLE OF CONTENTS 

IDENTITIES OF PARTIES AND COUNSEL ........................................... i 

TABLE OF CONTENTS ............................................................................ ii 

INDEX OF AUTHORITIES ...................................................................... iv 

STATEMENT OF THE CASE ................................................................... 1 

STATEMENT REGARDING ORAL ARGUMENT ................................... 1 

ISSUES PRESENTED ............................................................................... 2 

STATEMENT OF THE FACTS ................................................................. 2 

I. Appellant’s litigation history ............................................................. 2 

II. Evidence at Appellant’s trial ............................................................. 7 

SUMMARY OF THE ARGUMENT ......................................................... 15 

ARGUMENT ............................................................................................. 17 

I. The standards for DNA testing and appellate review .................... 17 

II. Appellant’s motion lacked the required specificity necessary to 

prove compliance with Chapter 64’s requirements ....................... 19 

III. The trial court was correct in finding that Appellant did not 

meet his burden of proving that he would not have been 

convicted with exculpatory test results .......................................... 27 

A. Appellant’s lack of specificity worked to his detriment ....... 28 

B. The trial court properly eschewed Appellant’s request to 

consider post-trial evidence and such evidence is not 

properly before this Court ...................................................... 29 

C. The trial court applied the proper exculpatory-result 

presumption ............................................................................ 32 

D. Appellant failed to prove by a preponderance of the 

evidence that he would not have been convicted armed 

with exculpatory test results ................................................. 36 
iii 

1. Items found on Stites .................................................... 36 

2. Items found near Stites ................................................ 39 

3. Item discovered by a citizen ......................................... 39 

4. Items found in or near the truck .................................. 40 

5. Items presently in the possession of the Bastrop 

District Clerk ................................................................ 41 

IV. The trial court’s finding of unreasonable delay is amply 

supported by the record .................................................................. 42 

A. The timing, breadth, and ambiguity of Appellant’s DNA 

testing request support the finding of unreasonable 

delay ........................................................................................ 45 

1. Time between Appellant’s request and his 

execution date ............................................................... 46 

2. Promptness of the request and previous 

opportunities to request testing ................................... 47 

B. Appellant’s overall litigation history left little doubt that 

his Chapter 64 motion was filed for purposes of 

unreasonable delay ................................................................ 53 

V. Appellant failed to prove chain of custody for items housed by 

the Bastrop District Clerk .............................................................. 55 

VI. Appellant did not prove biological material on the non-per se 

items he sought to test .................................................................... 58 

VII. The State re-urges its motion to accelerate this appeal ................. 61 

PRAYER FOR RELIEF ............................................................................ 62 

WORD-LIMIT CERTIFICATE OF COMPLIANCE ............................... 63 

CERTIFICATE OF SERVICE .................................................................. 63 

 
iv 

INDEX OF AUTHORITIES 

Cases

Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002) ............................... 44 

Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) ........... passim

Clarke v. State, 270 S.W.3d 573 (Tex. Crim. App. 2008) ........................ 26 

Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002) ............ 26, 27, 28 

Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009).......... 35, 36, 37 

Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011) ...... 37, 42, 46 

Holberg v. State, 425 S.W.3d 282 (Tex. Crim. App. 2014) .............. passim

Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) .......................... 39 

Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) .......................... 32 

Pace v. DiGuglielmo, 544 U.S. 408 (2005) ............................................... 55 

Pate v. State, No. 10-09-00360-CR, 2011 WL 652920 

(Tex. App.—Waco Feb. 23, 2011, pet. ref’d) ................................... 63 

Prible v. State, 245 S.W.3d 466 (Tex. Crim. App. 2008) ......................... 61 

Riggins v. State, No. 11-03-00307-CR, 2004 WL 743742 

(Tex. App.—Eastland Apr. 8, 2004, no. pet.) .................................. 63 

Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) ...................... 19, 48 

Rosales v. State, 748 S.W.2d 451 (Tex. Crim. App. 1987) ................. 55, 59 

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008) ........... 20, 33, 34 

Skinner v. State, 122 S.W.3d 808 (Tex. Crim. App. 2003) ................ 48, 57 

Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009) ...................... 57 

Skinner v. State, No. AP-76675, 2012 WL 2343616 

(Tex. Crim. App. June 20, 2012) ..................................................... 57 

State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002) ............. 47, 51, 52 
v 

State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) .......... passim

Swearingen v. State, 189 S.W.3d 779 (Tex. Crim. App. 2006). ............... 57 

Swearingen v. State, 303 S.W.3d 728 (Tex. Crim. App. 2010) ................ 57 

Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005) .......... 49, 52, 53 

Whitaker v. State, 160 S.W.3d 5 (Tex. Crim. App. 2004) ........................ 31 

Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) ......... passim

Wilson v. State, 185 S.W.3d 481 (Tex. Crim. App. 2006) ........................ 29 

Statutes

Tex. Code Crim. Proc. art. 64.01 (a)(2) .................................................... 20 

Tex. Code Crim. Proc. art. 64.01(a) ......................................................... 19 

Tex. Code Crim. Proc. art. 64.01(a)(1) ..................................................... 20 

Tex. Code Crim. Proc. art. 64.01(a–1) ......................................... 17, 59, 64 

Tex. Code Crim. Proc. art. 64.01(b) ................................................... 18, 19 

Tex. Code Crim. Proc. art. 64.01(b)(1) ..................................................... 20 

Tex. Code Crim. Proc. art. 64.01(b)(2) ..................................................... 20 

Tex. Code Crim. Proc. art. 64.03(a)(1) ..................................................... 18 

Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i) ............................................. 64 

Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii) ............................... 60, 63, 64 

Tex. Code Crim. Proc. art. 64.03(a)(2) ..................................................... 18 

Tex. Code Crim. Proc. art. 64.03(a)(2)(A) ................................................ 29 

Tex. Code Crim. Proc. art. 64.03(a)(2)(B) .......................................... 47, 52 
vi 

Other Authorities

Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 

2001 Tex. Sess. Law Serv. Ch. 2 ..................................................... 49 

Act of June 17, 2011, 82nd Leg., R.S., ch. 366, § 1–4, 

2011 Tex. Sess. Law Serv. Ch. 366 ................................................. 49 

Rules

Tex. R. Evid. 404(b) .................................................................................. 60 

Tex. R. Evid. 406 ....................................................................................... 60 

 
1 

STATEMENT OF THE CASE 

 This is an appeal from the denial of DNA testing in a death penalty 

case. Appellant moved for DNA testing pursuant to Chapter 64 of the 

Texas Code of Criminal Procedure (“Chapter 64 motion”). 

2.CR(DNA).74–143.1 The State opposed. 2.CR(DNA).161–229, 307–29. 

The trial court held a live evidentiary hearing, which concluded with the 

denial of Appellant’s Chapter 64 motion. 4.RR(DNA).227.2 The trial 

court entered written findings thereafter. 3.CR(DNA).362–68. Appellant 

then filed his notice of appeal. 3.CR(DNA).359. The appeal is now before 

the Court. 

STATEMENT REGARDING ORAL ARGUMENT 

 The State believes that oral argument should be denied. Many of 

the issues in this case have been authoritatively decided, the parties’ 

briefs adequately lay out the facts and legal arguments, and the 

decisional process would not be significantly aided by oral argument, 

especially given Appellant’s rapidly approaching execution date. 

 

1 “CR(DNA)” refers to the clerk’s record for the Chapter 64 proceeding. The 

references are preceded by volume number and followed by page numbers. 

2 “RR(DNA)” refers to the reporter’s record for the Chapter 64 hearing. The 

references are preceded by volume number and followed by page numbers. 
2 

Nevertheless, should the Court determine that oral argument is 

appropriate, the State requests an opportunity to respond. 

ISSUES PRESENTED 

 Whether the trial court erred by finding that Appellant 

did not prove, by a preponderance of the evidence, that he 

would not have been convicted of capital murder assuming 

exculpatory DNA test results? 

 Whether the trial court erred by finding that Appellant 

did not prove, by a preponderance of the evidence, that his 

request for DNA testing was not made to unreasonably delay 

the execution of his sentence or the administration of justice? 

 Whether Appellant’s Chapter 64 motion was sufficiently 

specific to meet all of Chapter 64’s statutory requirements? 

 Whether there was an adequate chain of custody 

established for items housed by the Bastrop District Clerk? 

 Whether Appellant proved that the items he wanted 

tested were or contained biological material? 

STATEMENT OF THE FACTS 

I. Appellant’s litigation history 

 A jury found Appellant guilty of capital murder for abducting, 

raping, and strangling to death Stacey Stites, and he was sentenced to 

death on May 30, 1998. 1.CR.489–493.3 Appellant’s conviction was 

 

3 “CR” refers to the clerk’s record for Appellant’s capital murder trial. The 

references are preceded by volume number and followed by page numbers. 
3 

affirmed on direct appeal by this Court on December 6, 2000, Reed v. 

State, No. 73,135 (Tex. Crim. App. Dec. 6, 2000) (Reed I), and the 

Supreme Court of the United States denied Appellant a writ of certiorari 

later that next year, Reed v. Texas, 534 U.S. 955 (2001). 

 With direct appeal pending, Appellant filed an application for state 

habeas relief on November 15, 1999. 2.SHCR-01/02, at 2–251.4 A little 

more than a year later, Appellant filed a “supplemental claim.” 3.SHCR01/02, at 391–402. On February 13, 2002, this Court denied Appellant’s 

initial application on findings by the trial court sitting in habeas and 

found the “supplemental claim” to be a subsequent application and 

dismissed it as abusive. Ex parte Reed, Nos. 50,961-01, 50,961-02 (Tex. 

Crim. App. Feb. 13, 2002) (Reed II). 

 Appellant turned to federal court on February 13, 2003, filing a 

petition for writ of habeas corpus in the Western District of Texas, Austin 

Division. Petition for a Writ of Habeas Corpus, Reed v. Thaler, No. A-02-

CV-142-LY (W.D. Tex. Sept. 26, 2012). The case was stayed and placed 

in abeyance on March 1, 2004, so that Appellant could exhaust certain 

 

4 “SHCR-01/02” refers to the clerk’s record for Appellant’s first and second state 

habeas proceedings. The references are preceded by volume number and followed by 

page numbers. 
4 

claims through the state system. Order, Mar. 1, 2004, Reed v. Thaler, 

No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). Appellant thereafter 

proceeded to file four additional state habeas applications. 

 On March 29, 2005, Reed filed his third state habeas application. 

1.SHCR-03, at 2–343.5 On October 19, 2005, this Court dismissed all of 

Appellant’s claims as abusive, with the exception of two claims that were 

remanded to the trial court for factual development. Ex parte Reed, No. 

WR-50961-03, 2005 WL 2659440, at *1 (Oct. 19, 2005) (Reed III). After a 

live evidentiary hearing and findings from the trial court, this Court 

issued an exhaustive opinion denying relief and finding that Appellant’s 

gateway-innocence claim was not persuasive enough to overcome the 

untimeliness of his procedurally defaulted claims. Ex parte Reed, 271 

S.W.3d 698 (Tex. Crim. App. 2008) (Reed IV). 

 With his third state habeas application pending, Appellant filed his 

fourth and fifth state habeas applications on March 5, 2007, and July 16, 

 

5 “SHCR-03” refers to the clerk’s record for Appellant’s third state habeas 

proceeding. The references are preceded by volume number and followed by page 

numbers. 
5 

2008, respectively. SHCR-04, at 2–15;6 SHCR-05, at 2–89.7 Both of these 

applications were dismissed as abusive by this Court in a single opinion. 

Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 2009 WL 97260, at *1–

6 (Tex. Crim. App. Jan. 14, 2009) (Reed V). 

 After those proceedings terminated, Appellant filed his sixth state 

habeas application on April 21, 2009. SHCR-06, at 2–59.8 This, too, was 

dismissed as abusive by this Court. Ex parte Reed, No. WR-50961-06, 

2009 WL 1900364, at *1–2 (Tex. Crim. App. July 1, 2009) (Reed VI). 

 The stay in federal district court was lifted on August 20, 2009. 

Order, Aug. 20, 2009, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. 

Sept. 26, 2012). On June 12, 2012, a federal magistrate judge 

recommended denial of relief, Report and Recommendation of the United 

States Magistrate Judge, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. 

Sept. 26, 2012), which the federal district judge largely adopted, and who 

 

6 “SHCR-04” refers to the clerk’s record for Appellant’s fourth state habeas 

proceeding. The references are preceded by volume number and followed by page 

numbers. 

7 “SHCR-05” refers to the clerk’s record for Appellant’s fifth state habeas 

proceeding. The references are preceded by volume number and followed by page 

numbers. 

8 “SHCR-06” refers to the clerk’s record for Appellant’s sixth state habeas 

proceeding. The references are preceded by volume number and followed by page 

numbers. 
6 

independently denied relief on September 26, 2012, Order on Report and 

Recommendation, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 

26, 2012). The federal district judge also denied all of Appellant’s postjudgment filings on February 4, 2013. Order, Feb. 4, 2013, Reed v. 

Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). 

 Appellant then appealed the denial of federal habeas relief, but the 

Court of Appeals for the Fifth Circuit affirmed on January 10, 2014. Reed 

v. Stephens, 739 F.3d 753 (5th Cir. 2014) (Reed VII). On March 19, 2014, 

the same court also rejected Appellant’s attempts at rehearing without a 

poll. On Petition for Rehearing and Rehearing En Banc, Reed v. 

Stephens, 739 F.3d 753 (5th Cir. 2014) (No. 13-70009). The Supreme 

Court of the United States denied Appellant’s petition for writ of 

certiorari from this proceeding on November 3, 2014. Reed v. Stephens, 

135 S. Ct. 435 (2014). 

 On April 8, 2014, the State requested the setting of Appellant’s 

execution for November 19, 2014. 1.CR(DNA).34–35. The trial court 

heard the State’s motion on July 14, 2014, and granted a modified 

execution date of January 14, 2015. 1.RR(DNA).17. The same day as the 

execution-setting hearing, July 14, 2014, Appellant filed his Chapter 64 
7 

motion. 2.CR(DNA).74–143. Almost three months later, Appellant 

sought a hearing on the Chapter 64 motion. 3.CR(DNA).233–34. Two 

weeks after that, Appellant filed an affidavit from a DNA analyst and an 

affidavit from his attorney verifying his Chapter 64 motion. 

3.CR(DNA).240–56. Then, the day before the Chapter 64 hearing, 

Appellant filed his personal affidavit. 3.CR(DNA).317–18. 

 After considering the record and evidence presented at the Chapter 

64 hearing, the trial court denied Appellant’s motion because Appellant 

failed to prove, by a preponderance of the evidence, that he would not 

have been convicted had exculpatory DNA test results been available at 

trial and that he did not file his Chapter 64 motion to unreasonably delay 

the execution of sentence or the administration of justice. 

4.RR(DNA).227. These findings were later reduced to writing. 

3.CR(DNA).362–68. The trial court also modified Appellant’s execution 

date to March 5, 2015, for administrative reasons. 4.RR(DNA).227. 

Appellant then filed his notice of appeal. 3.CR(DNA).359. 

II. Evidence at Appellant’s trial 

 Stacey Stites was a happily-engaged nineteen-year-old just 

eighteen days shy of her wedding. 43.RR.81–82, 85. She lived in an 
8 

apartment complex with her police-officer fiancé, Jimmy Fennell, and her 

mother, Carol, who lived in the apartment below Stites’s, and with whom 

Stites spent her last days alive planning her upcoming nuptials. 

43.RR.81; 44.RR.51. 

 Stites worked at a Bastrop, Texas grocery store—the store was 

about thirty miles from her residence—and was scheduled for a 3:30 a.m. 

shift. 43.RR.95; 44.RR.48. When she did not show, a fellow employee 

became worried and eventually called Carol around 6:30 a.m. 43.RR.96, 

101–02. In turn, Carol called Fennell, and he went to look for Stites while 

Carol informed authorities about Stites’s absence. 44.RR.70–71. 

 Before Carol knew about Stites’s disappearance, a Bastrop police 

officer had, at 5:23 a.m., discovered the pickup truck Stites took to work—

Fennell’s red, compact truck—seemingly abandoned in a local high school 

parking lot. 43.RR.117. Because the truck was not reported stolen, the 

officer took no further action. 43.RR.118,122. Before he left, however, he 

noticed a piece of a belt lying outside the truck. 43.RR.120. 

 Later that day, Stites’s body was found off a rural road. 44.RR.18, 

21. Texas Department of Public Safety (DPS) crime laboratory personnel 

processed the scene. 44.RR.108. They observed a partially clothed 
9 

Stites—her shirt removed, bra exposed, and missing a shoe and an 

earring. 44.RR.113. Her pants were undone, the zipper broken, and her 

panties were bunched at her hips. 44.RR.113–14, 122. She was 

discovered with work apparel—a nametag and a large knee brace. 

44.RR.128, 151. On the side of the road was another piece of belt. 

44.RR.115. 

 Because of obvious signs of rape, a DPS criminalist took vaginal 

and breast swabs from Stites’s body. 44.RR.123; 45.RR.51. On-site 

chemical testing of a vaginal swab signaled the presence of semen. 

44.RR.124–27. Around 11:00 p.m. that night, microscopic analysis 

showed the presence of intact sperm, which indicated recent seminal 

deposit—based on scientific articles, sperm remains whole within the 

vaginal cavity for usually no longer than twenty-six hours. 44.RR.131; 

45.RR.15–16. 

 Later forensic testing matched the belt fragments to each other, 

and it appeared that the belt was torn apart, not cut, 47.RR.83–85, and 

Fennell identified the belt as Stites’s, 45.RR.102. A search of the truck 

by DPS criminalists yielded Stites’s missing shoe and earring, and the 

remnants of a smashed, plastic drinking glass. 47.RR.44–45; 49.RR.34, 
10 

38. Additionally, the driver’s-side seatbelt was still engaged and the seat 

was angled in such a way that a 6’2’’ person could properly utilize the 

rearview mirror. 46.RR.101; 49.RR.43. 

 Stites’s body was autopsied the next day by Dr. Roberto Bayardo. 

48.RR.111. He observed a large mark across Stites’s neck that matched 

the pattern of her belt. 48.RR.119–20, 136–37. There were bruises on 

Stites’s arms consistent with forcible restraint, bruises on her head 

consistent with the knuckles of a fist, and bruises on her left shoulder 

and abdomen consistent with an over-the-shoulder seat belt. 48.RR.115–

18. Based on physical changes in the body, Dr. Bayardo estimated 

Stites’s time of death to be 3:00 a.m., give or take four hours. 48.RR.113–

14. 

 Dr. Bayardo also took vaginal swabs, in addition to oral and rectal 

swabs. 48.RR.121–23. He too observed intact sperm from a vaginal 

swab, which he stated indicated “quite recent[]” seminal deposit. 

48.RR.121–22. There were also injuries to Stites’s anus, including 

dilation and lacerations. 48.RR.126. These were consistent with penile 

penetration inflicted at or near the time of Stites’s death—peri-mortem. 

48.RR.126–27. And, Dr. Bayardo, via microscopic analysis, thought he 
11 

saw sperm heads from a rectal swab, though he acknowledged that 

chemical testing was negative for semen from this swab. 48.RR.123–24. 

But, he noted however, that sperm break down quicker in the rectal 

cavity than in the vaginal cavity, so the fragmented sperm further 

indicated recent seminal deposit. 48.RR.125. 

 Thereafter, DPS personnel conducted DNA testing on the vaginal, 

rectal, and breast swabs, and the results indicated that the foreign DNA 

came from a single source. 49.RR.95–113. They also “mapped” Stites’s 

panties, which showed little movement after semen was deposited in her 

vaginal cavity. 44.RR.190–91; 55.RR.40. This, too, demonstrated 

seminal deposit just before her murder. 55.RR.41. 

 For approximately a year, law enforcement—state, county, and 

municipal—searched for Stites’s killer to no avail. They interviewed 

hundreds and obtained biological samples from twenty-eight males; none 

matched the foreign DNA in and on Stites. 46.RR.111–12; 49.RR.114–

19. And none mentioned Appellant associating with Stites. 46.RR.112. 

 Appellant became a suspect in Stites’s murder after he was arrested 

for kidnapping, beating, and attempting to rape and murder another 
12 

nineteen-year-old woman, Linda Schlueter. 46.RR.122.9 Schlueter was 

abducted by Appellant approximately six months after Stites’s murder, 

near both the route Stites typically took to work and the time she 

disappeared—3:00 a.m. 61.RR.10, 37–47. Moreover, Appellant was 

regularly seen in this area by Bastrop police officers in the early morning 

hours, and his home was close to where both Stites’s and Schlueter’s 

vehicles were abandoned. 50.RR.70–73, 80, 95–96. Further, Appellant’s 

height—6’2’’—aligned with the angle of the driver’s seat. 49.RR.43. 

 Given these similarities, law enforcement inquired with DPS if they 

had Appellant’s DNA profile; they did because Appellant had raped his 

mildly intellectually disabled girlfriend, Caroline Rivas (this was preCODIS). 46.RR.122–23.10 Appellant’s DNA profile was compared to the 

foreign DNA inside and on Stites’s body and the two were consistent. 

50.RR.104. Appellant was then questioned and he denied knowing 

Stites. 48.RR.82–83. Additional biological samples were taken from 

Appellant pursuant to a search warrant. 48.RR.18, 86–92. 

 

9 The specific facts of Schluter’s abduction, assault, and attempted rape and 

murder was not revealed to the jury until the punishment phase of trial. 

10 Again, the underlying facts of Rivas’s physical- and sexual-abuse was not 

provided to the jury until the punishment phase of trial. 
13 

 More DNA testing was performed by DPS and a private laboratory 

on the new samples from Appellant and those taken from Stites’s body. 

49.RR.118–19; 50.RR.120–36, 140; 49.RR.127; 51.RR.33–34. The results 

were conclusive—Appellant could not be excluded as the foreign DNA 

contributor but 99% of the world’s population could be, and one would 

only expect to see the foreign DNA profile in one person in anywhere from 

24 to 130 billion people. 49.RR.118, 122; 50.RR.144–45; 51.RR.80. But, 

just to be sure, samples were taken from Appellant’s father and three of 

his brothers, and they were ruled out as contributors too. 49.RR.123–25 

 Appellant’s trial counsel attempted to counter this damning 

evidence with a two-pronged attack—they tried to blame someone else 

for the murder, and they argued that Appellant and Stites were engaged 

in a clandestine, but consensual sexual relationship. 

 To prove the former, Appellant’s DNA expert testified that a hair 

found on Stites’s back did not match any of the samples gathered by law 

enforcement, and a couple of witnesses testified they saw a white truck 

with three men in it near the area where Stites’s body was recovered. 

51.RR.107–08, 124–25; 54.RR.50–52. The latter witnesses’ testimony 

was significantly impeached. 51.RR.115, 119, 128–29. 
14 

 Trial counsel also suggested that Fennell was the murderer. Law 

enforcement interviewed Fennell several times and collected biological 

samples from him, but they never searched his apartment. 45.RR.110–

12; 46.RR.62. Fennell was eventually cleared after law enforcement 

investigated, and ruled impossible, Fennell’s ability to travel to Bastrop, 

murder Stites, and return home for Carol’s phone call within the known 

timeframes, and without any sort of transportation. 46.RR.127. 

 Further still, trial counsel cast suspicion on David Lawhon, a 

Bastrop resident who murdered another woman, Mary Ann Arldt, two 

weeks after Stites’s death. 46.RR.158. They called several witnesses that 

testified about a connection between Stites and Lawhon, including one 

who said Lawhon had confessed to killing Stites. 52.RR.29–31, 89. They 

were all greatly impeached—the confession witness actually told police 

someone other than Lawhon had confessed to Stites’s murder, Stites’s 

good friends testified in rebuttal that Stites never dated Lawhon, and 

Lawhon’s ex-wife testified that nothing unusual occurred around the 

time of Stites’s murder, which was different than when Lawhon 

murdered Ardlt. 52.RR.93; 54.RR.130, 138, 141–43. 
15 

 As to the secret-relationship defense, one witness testified that she 

saw Stites and Appellant talking at the grocery store, and another said 

Stites came by Appellant’s house looking for him. 51.RR.136; 53.RR.92. 

These were not credible accounts, however, as Appellant’s family were 

frequent guests at the first witness’s bar, and the second witness initially 

said “Stephanie,” not “Stacey,” was looking for Appellant, and she did not 

identify Stites when shown her driver’s license photo. 51.RR.138–39; 

53.RR.92–93. The jury found Appellant guilty of two counts of capital 

murder. See also Reed IV, 271 S.W.3d at 702–12 (providing an extensive 

recitation of the facts from Appellant’s trial). 

SUMMARY OF THE ARGUMENT 

 The trial court did not abuse its discretion in denying Appellant’s 

Chapter 64 motion. Initially, Appellant’s Chapter 64 motion suffered 

from a lack of specificity and his litigation tactics added to the motion’s 

ambiguity creating confusion that continues on appeal. Because of this 

confusion, Appellant did not clearly explain to the trial court how he met 

all of Chapter 64’s prerequisites to obtain testing. A trial court, however, 

does not err in denying relief when a movant fails to clearly articulate 

compliance with all the requirements for the relief sought. 
16 

 Next, the record amply supports the trial court’s finding that 

Appellant did not meet his burden of production and persuasion that his 

Chapter 64 motion was not made to unreasonably delay the execution of 

his sentence or the administration of justice. The record is replete with 

Appellant’s dilatory conduct. Indeed, Appellant, even today, is 

attempting to add evidence not before the trial court to seemingly justify 

his laggard conduct in seeking DNA testing. Not only is this 

impermissible, it does not show error in the trial court’s decision. 

 Moreover, Appellant failed to prove that the evidence he seeks to 

test is or contains biological material. Appellant’s own witnesses 

conceded that they could not categorically prove that the items Appellant 

sought to test contained biological material; they merely hypothesized 

DNA presence by speculating as to the facts of the crime. Guesses, 

however, are not evidence. 

 Further, with respect to the items in the possession of the Bastrop 

District Clerk, Appellant failed to prove a sufficient chain of custody. In 

arguing otherwise, Appellant ignores that the statutory chain-of-custody 

definition includes the phrases “tampered with” or “altered in any 

material respect.” Appellant’s argument and evidence about the ubiquity 
17 

of “touch” DNA, combined with the undisputed testimony that these 

items have been handled by numerous individuals without gloves, prove 

that such items has been “tampered with” or “altered in any material 

respect.” 

 Finally, the trial court did not err in finding that Appellant would 

have been convicted despite having exculpatory results on the items he 

wishes to test. Appellant attempts to define “exculpatory” in such a way 

that DNA testing would always have to be ordered, a proposition recently 

rejected by this Court. And Appellant’s primary basis of argument 

focuses on post-trial developments, which is another issue that the Court 

has rejected not long ago. Because the trial court’s ruling was correct and 

because Appellant fails to demonstrate reversible error, the trial court’s 

decision should be affirmed. 

ARGUMENT 

I. The standards for DNA testing and appellate review. 

 Chapter 64 of the Texas Code of Criminal Procedure permits a 

“convicted person” to move for “forensic DNA testing of evidence 

containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1). 

The evidence must have been “secured in relation to the offense that is 

the basis of the challenged conviction and was in possession of the state 
18 

during the trial,” and was either not previously tested or, was tested but 

newer techniques could provide “more accurate and probative” results. 

Tex. Code Crim. Proc. art. 64.01(b). The convicting court may order 

testing, but only if (1) the evidence “still exits and is in a condition making 

DNA testing possible;” (2) the evidence “has been subjected to a chain of 

custody sufficient to establish it has not been substituted, tampered with, 

replaced, or altered in any material respect;” and (3) “identity was or is 

an issue in the case.” Tex. Code Crim. Proc. art. 64.03(a)(1). Further, 

the convicted person must show by a preponderance of the evidence that 

he or she “would not have been convicted if exculpatory results had been 

obtained through DNA testing,” and that “the request for proposed DNA 

testing is not made to unreasonably delay the execution of sentence or 

administration of justice.” Tex. Code Crim. Proc. art. 64.03(a)(2). 

 On appeal, a trial court’s decision regarding DNA testing is 

reviewed using a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59 

(Tex. Crim. App. 2002). Almost total deference is afforded “a trial court’s 

determination of issues of historical fact and application-of-law-to-fact 

issues that turn on credibility and demeanor.” Id. All “other application 

of law-to-fact issues” are considered de novo. Id. 
19 

II. Appellant’s motion lacked the required specificity 

necessary to prove compliance with Chapter 64’s 

requirements. 

 Article 64.01 provides preliminary requirements that must be 

satisfied for each item a convicted person seeks to test. Tex. Code Crim. 

Proc. art. 64.01(a)–(b). An “item” is not the entirety of a physical object, 

however, but specific, identifiable portions of the object which are or 

contain “biological material.” See Routier v. State, 273 S.W.3d 241, 248 

(Tex. Crim. App. 2008). “Biological material” is, in turn, defined by 

statute. Tex. Code Crim. Proc. art. 64.01(a)(1)–(2). Thus, a convicted 

person is required to specify the locations that he or she seeks to test of 

an item that is not per se biological material. 

 Then, the convicted person must specify whether each item, down 

to the specific location, has been previously tested. Tex. Code Crim. Proc. 

art. 64.01(b)(1)–(2). For those items that have not, there is no further 

burden under Article 64.01, but for those items that have, the convicted 

person must prove that “newer testing techniques” would likely provide 

“more accurate and probative” results than those obtained from the prior 

tests. Tex. Code Crim. Proc. art. 64.01(b)(1)–(2). 
20 

 Appellant, in his Chapter 64 motion, sought to test a minimum of 

thirty-three items (some singularly listed items were actually multiple 

items; for example, “[c]arbon copies of checks”). 2.CR(DNA).115–17 

(emphasis added). But, Despite this large testing request, Appellant 

attempted to satisfy Article 64.01 by stating, simply, that there were 

some “items that have never been subjected to DNA testing” while other 

items were “tested in 1998 [but] can also be subjected to . . . considerably 

more advanced and sensitive DNA techniques.” 2.CR(DNA).91–92. In 

this, Appellant failed to demonstrate which items had been tested and 

which had not, he did not specify the regions to be tested on items that 

were not per se biological material, and he did not specify the DNA 

testing techniques that would provide more accurate and probative 

results on those items already tested. 

 Moreover, it was unclear exactly what Appellant sought to test. 

Appellant referred to an attachment accompanying his Chapter 64 

motion as the “complete list of evidence” he wanted tested. 

2.CR(DNA).115–17. However, he mentioned items not found in this 

“complete list” in the body of his Chapter 64 motion; for example, he 

asked to test items related to the extraneous offenses used at punishment 
21 

in his Chapter 64 motion but these items were not in the “complete list.” 

Compare 2.CR(DNA).77, with 2.CR(DNA).115–17. 

 Only months later did Appellant discuss the various types of DNA 

testing currently available in his expert’s, Deanna Lankford’s, affidavit. 

3.CR(DNA).245–47. But, even then, Appellant only explained that such 

DNA testing might be helpful. For example, Appellant discussed the 

possibility of using mitochondrial testing, though he did not discuss its 

suitability with respect to any particular item. 3.CR(DNA).247. Rather, 

he established that mitochondrial testing is a “newer . . . technique,” but 

he did not discuss whether it was likely to result in more accurate and

probative results, he still did not specify which items had been tested and 

which had not, nor did he specify the locales to be tested on each item. 

 And, with this affidavit came more ambiguity about what, exactly, 

Appellant wanted to test. The expert mentioned several items to possibly 

be tested. 3.CR(DNA).250–53.11 But some of these items were then-being 

DNA tested pursuant to an agreement of the parties. Compare

 

11 Belt, blue pants, white t-shirt, condom, hairs, nametag, fingerprints, napkin, 

pen, checks, and biological samples from Stites’s body 
22 

2.CR(DNA).144–48, with 3.CR(DNA).250–53.12 And several items 

mentioned in the Chapter 64 motion and attachment were not discussed 

by the expert. 

 Then, at the hearing, Appellant introduced more confusion about 

what he wanted to test (though, it clarified his true intent—unreasonable 

delay). Appellant’s first witness, John Paolucci, discussed testing a 

plethora of items. 2.RR(DNA).30–53. For the first time ever, Appellant 

specified regions to be tested on several items included in his Chapter 64 

motion. 2.RR(DNA).30–39, 41.13 Appellant also requested testing on 

items he had never previously mentioned either in his Chapter 64 motion 

on in his expert’s affidavit with specificity. 2.RR(DNA).34–37, 39, 41–42, 

44, 46, 50, 53–55.14 Still yet, Appellant asked for preliminary testing on 

items he never before listed—with one exception—to determine if they 

 

12 Vaginal, rectal, and breast swabs; four specific hairs; and a cutting from the 

panties. 

13 Blue pants (cuffs, waistband, button opening, and button); panties 

(waistband); bra (clasp); and a white t-shirt (collar). 

14 Socks (heel and cuff); left shoe (heel and laces); right shoe (heel and laces); 

HEB-branded shirt (collar, cuffs, armpits); pieces of a green cup; brown planner; beer 

cans (lip); hair from brown planner; victim’s hand bags; extracts from condom; and 

extracts from beer cans. 
23 

contained biological material. 2.RR(DNA).45–47, 49–50, 52.15 And then 

Appellant, maybe, abandoned (or not) testing on several other items, 

some previously listed and some not. 2.RR(DNA).40, 42, 44–45.16 

 Appellant’s second witness, Deanna Lankford, like Paolucci, 

discussed potentially testing a number of items. 3.RR(DNA).106–24. 

She, too, discussed testing certain regions of items that Appellant had 

discussed only at the item-level in his Chapter 64 motion, though she 

specified more areas than Paolucci did. 3.RR(DNA).106–10.17 And she, 

too, mentioned items not contained in Appellant’s Chapter 64 motion or 

specific in her prior affidavit, though she did not mention preliminary 

tests on some of these items like Paolucci did and she, again, mentioned 

additional areas to be tested on certain items. 3.RR(DNA).110–11, 115–

17.18 Lankford also testified about items for which she only suggested 

 

15 White flakes; two tape lifts from Stites; paper napkin (requested in Chapter 64 

motion); green blanket; driver’s seat tape lifts; and white paper sheet. 

16 Back brace (not previously requested); bridal receipt (previously requested); 

knee brace (not previously requested); and maybe automatic teller and Walmart 

receipts (“skipping over paper items,” which were previously requested). 

17 Blue pants (crotch, zipper, button, waistband, and cuffs); and panties (crotch 

and waistband). 

18 Socks; left shoe; right shoe; HEB-branded shirt; pieces of a green cup; brown 

planner; white flakes; two tape lifts from Stites; beer cans (lip and crush ridges); 

victim’s hand bags; and unspecified extracts. 
24 

preliminary testing to determine if biological material existed. 

3.RR.(DNA).119.19 Finally, there were many items that Paolucci 

discussed that Lankford did not, or at least with specificity.20 The State 

objected to the items not specified in Appellant’s Chapter 64 motion. E.g., 

2.RR(DNA).31. 

 On appeal, it is still not entirely clear what Appellant wants to test. 

Does Appellant no longer want to test specific areas of items that only 

Lankford mentioned but Paolucci did not?21 Does Appellant wish to 

forego testing on items mentioned by Paolucci or Lankford but not 

discussed on appeal?22 Does Appellant abandon those items listed in his 

motion but not discussed at the hearing or on appeal?23 

 On top of that ambiguity, Appellant still has not specified which 

items have been tested and which have not and what type of testing he 

 

19 White paper sheet; and driver’s side tape lifts. 

20 Back brace; bridal receipt; knee brace; green blanket; hair from brown planner; 

extracts from condom; and extracts from beer cans. 

21 Blue pants (crotch and zipper); and panties (crotch). 

22 Back brace; bridal receipt; knee brace; white flakes; tape lifts from Stites; 

paper napkin; green blanket; driver’s seat tape lifts; white paper sheet; and biological 

samples from Stites’s body. 

23 Carbon copies of checks; gas emergency book; automated teller receipt; 

Walmart receipt; business card; plastic bag; blue rope; brown rope; piece of a shirt; 

and piece of a knife. 
25 

would perform on each previously tested item. As Lankford admitted at 

the hearing, for example, mitochondrial testing cannot prove identity. 

3.RR(DNA).162. Are mitochondrial results, therefore, more probative 

than the results of testing previously run on the beer cans in 2001? 

Because Appellant has never provided the specificity needed to make 

such determinations, the answers to such questions are not found in this 

record.24 

 Appellant’s hodgepodge testing request, ever changing and still not 

clear, is reason to affirm the trial court’s denial of his Chapter 64 motion. 

In Dinkins v. State, like here, the convicted person requested testing of 

certain items in his Chapter 64 motion and then requested more items at 

the hearing on the motion. 84 S.W.3d 639, 640–41 (Tex. Crim. App. 

2002). This Court affirmed the denial of Dinkins’s Chapter 64 motion, in 

part, because the Court was “not entirely clear as to what evidence 

[Dinkins] wants tested.” Id. at 642. This was because Dinkins “never 

 

24 To prevent the problem that Appellant created here—a moving target of items 

that he wished to test—the Court should adopt the same rule utilized in motions for 

new trial. Namely, a new-trial movant cannot amend his motion for new trial at a 

hearing on the same if the State objects. See Clarke v. State, 270 S.W.3d 573, 580–

81 (Tex. Crim. App. 2008). The State, in Appellant’s case, repeatedly objected to 

testing of items raised for the first time at the hearing and, so, the trial court’s 

decision should be affirmed as to those dilatorily raised items. 
26 

explained the discrepancy between his original motion and [his expert’s] 

report.” Id. The “discrepancy” in Dinkins pales in comparison with the 

one present here and, as such, the Court should affirm the decision 

denying Appellant DNA testing. 

 Additionally, like in Dinkins, Appellant only made “general 

statements about the type of DNA testing that was available at the time 

of . . . trial [and] he failed to specifically address the issue of whether at 

the time of . . . trial the type of DNA testing necessary to test [those items 

already tested] was capable of providing probative results.” Id. at 642. 

Swabs from Stites’s vaginal and rectal cavities and her breasts, a stain 

from the crotch of her panties, stains from her pants, a stain from her 

back brace, several hairs, and swabs from the beer cans were all tested 

at the time of trial, 49.RR.92–93; 54.RR.44; Reed IV, 271 S.W.3d at 713–

14, and the beer cans were re-tested as part of Appellant’s second state 

habeas proceeding, Reed IV, 271 S.W.3d at 738–39, but Appellant has not 

provided specific analysis with any of these previously tested items, just 

the “general statements” that were found to be insufficient in Dinkins. 

Thus, the Court should affirm trial court’s ruling on these items (which 

Appellant may or may not still want to test). 
27 

III. The trial court was correct in finding that Appellant did not 

meet his burden of proving that he would not have been 

convicted with exculpatory test results. 

 Appellant attacks the trial court’s decision that he did not prove, by 

a preponderance of the evidence, that he would not have been convicted 

presuming exculpatory results on the items he sought to test. Appellant’s 

Br. 41–60. Appellant’s arguments fall into two broad categories. 

 Appellant’s first and primary contention is that the trial court 

should have considered post-trial evidence in making its Article 

64.03(a)(2)(A) finding. Appellant’s Br. 44–52. Appellant has provided 

the Court with the should-have-been-considered post-trial evidence in 

two appendix volumes. App’x 5, 21–22. In a footnote, Appellant argues 

that this Court may consider the appended evidence “under the doctrine 

of judicial notice.” Appellant’s Br. 48 n.22. 

 Second, Appellant asserts that the trial court used an 

impermissibly narrow construction of the term “exculpatory” in making 

its probabilistic determination of whether Appellant would have been 

found guilty armed with the results of new testing. Appellant’s Br. 53–

60. Instead, Appellant argues that the appropriate exculpatory 

presumption under Article 64.03(a)(2)(A) is that the DNA of a third party, 
28 

known offender would be found on the items the convicted person seeks 

to test. Appellant’s Br. 52–60. Appellant’s complaints are without merit 

and the trial court’s decision should be upheld. 

A. Appellant’s lack of specificity worked to his detriment. 

 As noted above, a convicted person must prove by a preponderance 

of the evidence that he or she would not have been convicted assuming 

exculpatory results on the items sought to be tested. Tex. Code Crim. 

Proc. art. 64.03(a)(2)(A). It is clear that the convicted person bears the 

evidentiary burden on this point. See, e.g., Wilson v. State, 185 S.W.3d 

481, 484 (Tex. Crim. App. 2006). Moreover, courts cannot “consider posttrial evidence when deciding” this issue. Holberg v. State, 425 S.W.3d 

282, 285 (Tex. Crim. App. 2014). 

 Initially, Appellant’s lack of clarity hampers his ability to show that 

the trial court erred. He faults the trial court’s oral ruling for containing 

“no findings of fact [and] no relevant evidence,” Appellant’s Br. 41, but 

Appellant’s lack of specificity as to which items to test and how each item 

fits into the larger evidentiary picture looms over his case even today. As 

demonstrated above, see supra Argument II, the State is still not sure 

what Appellant wants to test. It is hard to fault the trial court’s ruling 
29 

that Appellant failed in his burden of proof when Appellant did not even 

clearly articulate which items the trial court was supposed to apply the 

presumed-exculpatory-result standard. Because he did not make clear 

precisely what items were to factor into the Article 64.03(a)(2)(A) test, 

Appellant cannot demonstrate error in the trial court’s ruling. 

B. The trial court properly eschewed Appellant’s request 

to consider post-trial evidence and such evidence is not 

properly before this Court. 

 As to Appellant’s failure-to-consider-post-trial-evidence complaint, 

Holberg demonstrates that Appellant is clearly wrong and that the trial 

court was clearly right to not consider such evidence. In rejecting the 

same type of tactic Appellant uses, the Court held: 

Thus, despite the influx of newly asserted post-trial factual 

developments that the appellant calls upon us to consider, our 

review is limited to discerning whether, and to what extent, 

exculpatory results from . . . DNA testing would alter the 

landscape if added to the mix of evidence that was available 

at the time of trial. 

Holberg, 425 S.W.3d at 285. Holberg is absolutely dispositive of 

Appellant’s point of error and the trial court did not err by failing to 

consider Appellant’s post-trial evidence. 

 In addition, much of the evidence Appellant now relies upon he 

failed to provide to the trial court despite the fact Appellant’s request for 
30 

a live hearing was granted, something which the trial court was not 

required to do. See Whitaker v. State, 160 S.W.3d 5, 8–9 (Tex. Crim. App. 

2004) (“Nothing in Chapter 64 requires the trial court to conduct a 

hearing, regardless of whether the State attaches affidavits to its 

response”). Thus, Appellant has forfeited his right for this evidence to be 

considered, independent of Holberg, because he did not introduce it at the 

evidentiary hearing on his Chapter 64 motion. Cf. Mays v. State, 285 

S.W.3d 884, 889 (Tex. Crim. App. 2009) (“In order to preserve error 

regarding a trial court’s decision to exclude evidence, the complaining 

party must . . . make[] an ‘offer of proof’ which sets forth the substance of 

the proffered evidence.”). Thus, the trial court did not err in its Article 

64.03(a)(2)(A) ruling with evidence that Appellant did not even attempt 

to introduce at the Chapter 64 hearing. 

 Additionally, this Court should not consider the appended, posttrial evidence, separate from Holberg and Appellant’s forfeiture of the 

issue, because “[g]eneral considerations governing appellate review apply 

here.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). 

First, “[a]n appellate court may not consider factual assertions that are 

outside the record, and a party cannot circumvent this prohibition by 
31 

submitting an affidavit for the first time on appeal.” Id. (footnotes 

omitted). Second, “an appellate court’s review of the record itself is 

generally limited to the evidence before the trial court at the time of the 

trial court’s ruling.” Id. (footnote omitted). Both considerations apply 

here and both counsel against Appellant’s attempt to unmoor the trial 

court’s ruling from the record before it. 

 Appellant’s pursuit to thwart these well-worn rules finds no home 

in Routier, despite Appellant’s argument to the contrary. Rather, Routier

stands for the unremarkable proposition that trial courts, in engaging in 

probabilistic determinations about how either new or additional evidence 

would have affected a trial if such evidence had been presented at trial, 

must, necessarily, consider the facts of the trial. See Routier, 273 S.W.3d 

at 244 n.2 (“However, in its order denying appellant’s motion for postconviction DNA testing, the convicting court did indicate it had 

considered ‘the evidence adduced at trial[.]’” (alteration in original)). 

Nothing in Routier remotely stands for the proposition that, in making 

an Article 64.03(a)(2)(A) determination, that post-trial evidence can be 

considered. Even if it did, Holberg’s more recent vintage and its express, 

directly-on-point holding means Holberg controls. Thus, Appellant’s 
32 

attack on the trial court’s ruling for not having considered post-trial 

evidence fails. 

C. The trial court applied the proper exculpatory-result 

presumption. 

 As to Appellant’s incorrect-exculpatory-presumption argument, 

that, too, fails. In one of the Court’s most recent Chapter 64 opinions, the 

Court defined “‘exculpatory results’ to mean only results ‘excluding [the 

convicted person] as the donor of this material.’” State v. Swearingen, 

424 S.W.3d 32, 38 (Tex. Crim. App. 2014) (alteration in original) 

(emphasis added) (quoting Blacklock v. State, 235 S.W.3d 231, 232 (Tex. 

Crim. App. 2007)). While Appellant suggests that cases like Blacklock

and Esparza v. State, 282 S.W.3d 913 (Tex. Crim. App. 2009), support his 

third-party-presumption argument, they actually undermine it. 

 In Blacklock, the Chapter 64 movant had been convicted of 

aggravated robbery and aggravated sexual assault. 235 S.W.3d at 232. 

He sought to test vaginal smears from the victim and semen left on the 

victim’s pants and panties during the attack. Id. This Court reversed a 

court of appeals, noting that the record established that the “victim’s lone

attacker is the donor of the material for which [the] appellant seeks DNA 

testing.” Id. (emphasis added). Thus, if DNA testing “exclud[ed] [the] 
33 

appellant as the donor of th[e] [semen],” it would have establish his 

innocence. Id. This firmly stands for the proposition that trial courts are 

only to presume that the results of testing would “exclud[e]” the convicted 

person, not include someone else. 

 In Esparza, the underlying crime was an aggravated sexual 

assault. 282 S.W.3d at 914–17. The convicted person sought to test a 

rape kit, including vaginal and oral swabs and a fabric cutting. Id. at 

918. In reversing the court of appeals, this Court held that it was 

improper for the court of appeals to assume “the presence of a third 

party’s DNA” in deciding whether the convicted person would not have 

been convicted presuming exculpatory results. Id. at 921. Instead, 

because it was undisputed that the victim’s “attacker deposited semen or 

seminal fluid inside [the victim] during the assault,” id., a convicted 

person in a “sexual assault case[]” can prove innocence if the DNA from 

a rape kit is presumed to not to be his. Id. at 922. Esparza, which relied 

heavily on Blacklock, supports the proposition that the proper 

exculpatory result is simply that the convicted person’s DNA would not 

be found on the items he or she desired to test. See also Ex parte 

Gutierrez, 337 S.W.3d 883, 899 (Tex. Crim. App. 2011) (“The burden 
34 

under Article 64.03(a)(2)(A) is met if the record shows that exculpatory 

DNA test results, excluding the defendant as the donor of the material, 

would establish, by a preponderance of the evidence, that the defendant 

would not have been convicted.” (emphasis added)). 

 Moreover, it is clear that the trial court was prohibited from 

assuming that any item would bear the DNA of a known offender. This 

was recently rejected in Swearingen, where the Court stated: 

 A requirement to assume that the results of testing were 

not only from someone other than the convicted person but 

that the other person was a repeat offender (or as the appellee 

argued before this court, a repeat offender with a similar 

modus operandi), makes it hard to imagine a case in which we 

would not grant DNA testing. Such compelling DNA results 

would certainly overcome any mountain of inculpatory 

evidence. We believe that had the legislature meant to so 

drastically lower the barrier for Chapter 64 testing, they 

would have said so explicitly. The statute requires only that 

the results be run through CODIS. It does not set a standard 

for exculpatory results. 

424 S.W.3d at 39. As such, the trial court was correct in not applying the 

presumption of a CODIS-matched DNA result in determining whether 

Appellant would have been convicted when factoring in exculpatory test 

results. 

 Applying the proper exculpatory presumption—that Appellant’s 

DNA would not be found on a particular item—it is clear that the trial 
35 

court did not err. However, this Court should find that Appellant has 

forfeited the issue on appeal, at least as to how an exculpatory result on 

any particular item would factor into the trial evidentiary mix. While 

attempting to demonstrate error in how the trial court came to the 

conclusion that Appellant did not prove that he would have likely been 

convicted presuming exculpatory results, he does not actually discuss 

why the trial court’s decision is erroneous with respect to any particular 

item he (maybe) seeks to test. Put another way, Appellant does not 

describe how the absence of his DNA on each item he (maybe) seeks to 

test would prove that he would likely not have been convicted considering 

only the evidence at trial. 

 Appellant’s primary substantive argument (instead of processbased argument) in challenging the adverse Article 64.03(a)(2)(A) finding 

is this—had the trial court presumed “an alternative known 

suspect . . . on the evidence [Appellant] seeks to test (i.e., the belt used to 

strangle Ms. Stites, the victim’s name tag, her clothing, fingernail 

scrapings, and other evidence very likely handled by her killer),” it could 

only have concluded that Appellant would not have been found guilty. 

Appellant’s Br. 57–58. But this cursory briefing is hardly an item-by-
36 

item analysis of how each item fits into the evidence at trial. As such, 

the State respectfully requests that the Court find this issue forfeited on 

appeal for inadequate briefing. See Lucio v. State, 351 S.W.3d 878, 896–

97 (Tex. Crim. App. 2011) (finding that the failure to provide record 

citations in relation to the applicable legal authority was inadequate 

briefing). Nevertheless, the State alternatively addresses the evidence 

Appellant at least mentions in his brief to demonstrate the correctness of 

the trial court’s Article 64.03(a)(2)(A) finding. 

D. Appellant failed to prove by a preponderance of the 

evidence that he would not have been convicted armed 

with exculpatory test results. 

1. Items found on Stites 

 Concerning the pants, the jury heard that there were two saliva 

stains on them, which had DQ Alpha alleles 1.2 and 4. 49.RR.112. The 

jury knew that Stites had DQ Alpha alleles of 1.2 and 4, 49.RR.101, and 

that Appellant’s DQ Alpha alleles were 1.2 and 3, 49.RR.118. 

Consequently, the jury knew Appellant’s DNA was not found on Stites’s 

pants and they nevertheless convicted him. Thus, he does not prove by a 

preponderance that the jury would not have convicted him given that 

they already knew his DNA was not found on Stites’s pants. 
37 

 As to the panties, the jury learned that DQ Alpha alleles of 1.2 and 

3 and D1S80 alleles of 22 and 24 were discovered in them. 49.RR.110. 

The jury knew Appellant’s DQ Alpha alleles were 1.2 and 3 and his 

D1S80 alleles were 22 and 24. 49.RR.118–19. Thus, Appellant matched 

the male fraction found in the panties at these alleles. If Appellant was 

not found in the panties, however, the jury would still have known that 

his DNA was on Stites’s breasts, 49.RR.111, in her vaginal cavity, 

49.RR.104, and in her rectal cavity, 49.RR.107. Thus, Appellant does not 

demonstrate that he would not have been convicted had his DNA been 

“only” in and on Stites’s body, instead of in her panties. 

 Similarly, had the jury known that Appellant’s DNA was not on the 

socks, shoes, and bra, they still would have convicted Appellant. 

Contrary to Appellant’s witnesses’ opinions at the Chapter 64 hearing, 

the jury heard testimony that there was no evidence to indicate Stites 

had been dragged to her resting place. 44.RR.153. Accordingly, the jury’s 

result would not have been any different had they known Appellant’s 

DNA was not on these items of clothing, but “only” inside and on Stites’s 

body. 
38 

 The lack of Appellant’s DNA on Stites’s nametag also would not 

prove he would not have been convicted. The jury knew the nametag was 

tested for fingerprints, 47.RR.30, but that Appellant’s fingerprints were 

not on it, 47.RR.42. As such, the jury knew that Appellant was not linked 

with the item, yet still they convicted him. Again, Appellant does not 

show that if his DNA was not on this item that he would have avoided 

conviction. 

 Finally, regarding the hand bags, there was testimony that no 

evidence was collected from Stites’s fingernails because “[t]hey were so 

short that it was impossible to even try to clip anything, much less try to 

scrape anything from underneath them.” 44.RR.163. And there was no 

testimony that Stites fought her attacker. As such, the jury would not 

blink if Appellant’s DNA was not found underneath Stites’s nails, which, 

according to Appellant, could possibly be found in the bags around her 

hands. See Ex parte Gutierrez, 337 S.W.3d at 900–01 (finding no 

reasonable probability of not being convicted because there was “no 

evidence to suggest that the [victim] was able to hit or scratch her 

murderers with her fingernails as they attacked her”). 

 
39 

2. Items found near Stites 

 Jurors heard that Stites borrowed the white t-shirt from Fennell. 

45.RR.108. And jurors heard that both the white t-shirt and the belt 

fragment were subjected to fingerprint analysis but that Appellant’s 

fingerprints were on neither item. 47.RR.43–44, 49. Again, the jury’s 

decision would not have been affected by not finding Appellant’s DNA on 

either item. 

 Regarding the beer cans and their extracts, the jury heard the cans 

were collected off the side of the road, 45.RR.25, and that it was not 

uncommon to find such items on country roads, 45.RR.45. Assuming that 

Appellant’s DNA is not on these items does not prove by a preponderance 

that he would have not been convicted. 

3. Item discovered by a citizen 

 At trial, all that was revealed about the condom was that “someone” 

turned it into the sheriff’s office. 52.RR.134–35. The condom, however, 

“appeared to be old and cracked and worn out . . . hav[ing] been out in 

the woods for some time,” 52.RR.142, and there was no information 

regarding when the condom was given to authorities, 52.RR.143. Trial 

counsel mentioned the condom in closing, saying it was found “[n]ot right 

there, down the way, but in the general area.” 56.RR.110. That a condom, 
40 

with no seeming connection to the crime, would not have Appellant’s 

DNA on it does not prove by a preponderance of the evidence that he 

would not have been convicted. 

4. Items found in or near the truck 

 Fennell testified that his truck was “just in disarray” because he 

had “thrown [his] baseball stuff” in the truck the night before Stites’s 

murder, a practice which he called “normal.” 45.RR.98. Fennell was a 

little league baseball coach and had coached his team and transported a 

little leaguer in his truck the evening before Stites’s murder. 45.RR.78–

79, 97. Thus, the jury would not be surprised to not find Appellant’s DNA 

but someone else’s on any of the items found in or near Fennell’s truck. 

 Moreover, the jury heard that several items found inside or near 

the truck—a gas emergency book, various receipts, lighter, Big Red gum 

pack, paper napkin, pen—and the truck itself were examined for 

fingerprints, 47.RR.32–35, 39–42, but that Appellant’s fingerprints were 

not discovered on the items, 47.RR.43, and that he did not match 

fingerprints that were developed on the truck, 47.RR.28. The jury’s 

decision would not be affected had they had also known that Appellant’s 

DNA was not in the truck. And, the jury’s verdict would not be any 
41 

different if Appellant’s DNA was not found on any of these items but still 

found on and inside Stites’s physically- and sexually-abused body. Cf. 

Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (“The presence 

of another person’s DNA at the crime scene will not, without more, 

constitute affirmative evidence of [the convicted person’s] innocence.”). 

5. Items presently in the possession of the Bastrop 

District Clerk 

 As explained more fully below, see infra Argument V, many of the 

items Appellant (maybe) wants to test have been handled by numerous 

individuals—attorneys, court personnel, and jurors—without gloves at 

Appellant’s capital murder trial and they were stored commingled and 

without protective packaging in the Bastrop District Clerk’s Office.25 

4.RR(DNA).178–183, 194, 199–200. Assuming for the sake of argument 

that Appellant is right that touching these items ungloved would leave 

the handler’s DNA behind, finding another person’s DNA on these items 

would not demonstrate by a preponderance of the evidence that 

Appellant would not have been convicted. See Swearingen, 424 S.W.3d 

 

25 Assuming that Appellant only wants to test what is listed in his brief, this 

would include: blue pants; panties; socks; shoes; bra; nametag; white t-shirt; belt; 

earring; HEB-branded shirt; knife with metal cover; pieces of a green cup; and brown 

planner. 
42 

at 38–39 (“Primarily, this is because the victim’s having encountered 

another person would not factually exclude the [convicted person] from 

having killer her. There are many ways someone else’s DNA could have 

ended up in the victim’s fingernails. Such results would not require an 

inference that the [convicted person would [have] been acquitted.”). 

 “In sum, granting DNA testing in this case would ‘merely muddy 

the waters.’” Ex parte Gutierrez, 337 S.W.3d at 901. Because Appellant 

does no more than that, the Court should affirm the trial court’s Article 

64.03(a)(2)(A) decision. 

IV. The trial court’s finding of unreasonable delay is amply 

supported by the record. 

 Appellant argues that the trial court’s overall finding that he filed 

his Chapter 64 motion to unreasonably delay the execution of his 

sentence or the administration of justice is in error. Appellant’s Br. 60–

86. He asserts that Chapter 64 does not impose a filing deadline or 

“require a movant to explain why he did not raise a claim earlier.” 

Appellant’s Br. 63. Further, Appellant claims that Chapter 64 motions 

filed within a month of an execution setting are, presumptively, filed for 

the purpose of unreasonable delay but those filed before such a setting 

are not. Appellant’s Br. 63–64. Because he falls into the latter camp, his 
43 

motion was not an unreasonable delay. He also alleges that each 

subsidiary fact finding is wrong. Appellant’s Br. 65–86. Contrary to 

Appellant’s arguments, the trial court’s umbrella ruling and its 

underlying factual findings are all abundantly supported by the record. 

 A convicted person bears the burden of proving, by a preponderance 

of the evidence, that he or she does not seek DNA testing to unreasonably 

delay the execution of sentence or the administration of justice. Tex. 

Code Crim. Proc. art. 64.03(a)(2)(B). This Court has not elucidated the 

factors to be considered in determining unreasonable delay; however, 

Judge Hervey’s concurrence in State v. Patrick provides some factors to 

consider: 

Last minute requests for DNA testing without regard to the 

promptness of the request, the proximity in time between the 

request and execution of sentence, or a determination as to 

when the convicted person could have previously requested 

DNA testing would pose a hindrance to the Legislative 

mandate of Chapter 64 opposing unreasonable delay. 

86 S.W.3d 592, 598 (Tex. Crim. App. 2002) (Hervey, J., concurring). The 

State believes that additional factors here—the failure to provide time 

estimates, prior litigation history, and present litigation tactics—should 

also be considered holistically and a finding of unreasonable delay upheld 

unless entirely unsupported by the record. 
44 

 This Court has previously indicated that such a determination “is 

an application-of-law-to-fact question and is therefore given de novo 

review.” Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003). 

Nevertheless, the State believes the appropriate standard of review in 

this case is “almost total deference” because Appellant placed his 

credibility at issue—he averred, in his (belatedly) sworn Chapter 64 

motion, that: (1) the motion was brought in good faith; (2) it was brought 

as soon as it appeared the federal habeas proceedings “were coming to a 

close;” (3) and he could not have brought it any sooner because of 

technological- and legislative-changes. 2.CR(DNA).100. At the hearing, 

the State introduced evidence, which was admitted without objection, 

contesting those (belatedly) sworn averments. Thus, the State 

challenged Appellant’s credibility and the more favorable almost-totaldeference standard should apply. See Rivera, 89 S.W.3d at 59. 

Regardless of the standard of review, “the trial court’s finding regarding 

unreasonable delay is supported by the record” and should be affirmed. 

Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005). 
45 

A. The timing, breadth, and ambiguity of Appellant’s DNA 

testing request support the finding of unreasonable 

delay. 

 Appellant has continuously and aggressively challenged his 

judgment of conviction since the day he was sentenced to death in 1998. 

See supra Statement of Facts I. Against this backdrop, the Legislature 

enacted Chapter 64 in 2001, Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 

2, 2001 Tex. Sess. Law Serv. Ch. 2 (codified at Tex. Code Crim. Proc. arts. 

64.01–64.05), and the last amendment was in 2011, Act of June 17, 2011, 

82nd Leg., R.S., ch. 366, § 1–4, 2011 Tex. Sess. Law Serv. Ch. 366 

(codified at Tex. Code Crim. Proc. arts. 64.01, 64.035, 64.04). Appellant 

never sought DNA testing after it became statutorily available, that is, 

until he lost his federal habeas appeal in the Fifth Circuit. 

2.CR(DNA).106–13. Even then, it was only an informal request. 

2.CR(DNA).106–13. The State agreed to test some of the items Appellant 

requested. 2.CR(DNA).144–48. 

 In the interim, the State moved for an execution date. 

1.CR(DNA).34–35. On the day the trial court first set Appellant’s 

execution date, Appellant filed his Chapter 64 motion and asked for a 

significant number of items to be tested, including items beyond what 
46 

was in his informal request. 2.CR(DNA).77, 115–17. Months later he 

supplemented (or amended) that large request with more items. 

3.CR(DNA).250–53. A month after that—at the Chapter 64 hearing—he 

added (or amended) his request with even more items. 2.RR(DNA).30–

53, 106–24. See also supra Argument II. Given Appellant’s Chapter 64 

litigation, it was not improper for the trial court to find unreasonable 

delay. 

1. Time between Appellant’s request and his 

execution date 

 It is appropriate to consider the time between “proximity in time 

between the request and execution of sentence.” Patrick, 86 S.W.3d at 

598. Inherent in such a consideration is the nature of the request—a 

request to test a single item using one DNA testing technique a month 

away from an execution date will obviously be seen as more reasonable 

than requesting a large and nebulous amount of items using an 

unspecified variety of DNA testing techniques in that same time frame. 

 Here, at the hearing setting an execution date, the State sought a 

date six months out to accommodate the agreed-to DNA testing of three 

types of swabs, four hairs, and a fabric cutting. Appellant’s Chapter 64 

request dwarfed the agreed-to DNA testing, which was thought to need 
47 

about six months for completion. Despite the fact that the State provided 

a timeline for that testing, 1.RR(DNA).14, and despite the fact that 

Appellant previously proposed to enter into a DNA-testing scheduling 

order, 1.CR(DNA).48, Appellant now chastises the trial court for having 

considered his failure to provide an estimated timeline for DNA testing. 

Appellant’s Br. 65–66. While Appellant is correct that Chapter 64 does 

not require that a convicted person propose an estimated completion date 

for DNA testing, Appellant’s Br. 65, it also does not define unreasonable 

delay, see Tex. Code Crim. Proc. art. 64.03(a)(2)(B), meaning that it is not 

improper for a trial court to take into account the timing and breadth of 

the requested testing. Here, it was absolutely proper for the trial court 

to believe that Appellant’s massive and ever-changing request, seemingly 

prompted by the loss in the Fifth Circuit and filed on the same day as the 

hearing on the State’s motion to set an execution date, was intended to 

unreasonably delay the execution of sentence or administration of justice. 

2. Promptness of the request and previous 

opportunities to request testing 

 It is also proper to consider the “promptness of the request . . . [and] 

when the convicted person could have previously requested DNA 

testing.” Patrick, 86 S.W.3d at 598. Chapter 64 had been in existence 
48 

for more than thirteen years and its last amendment was effective almost 

three years before Appellant filed his Chapter 64 motion. Such a delay 

should be considered presumptively unreasonable. See Thacker, 177 

S.W.3d at 927 (“Appellant waited over four years to file his motion, and 

that motion was filed less than a month before his scheduled execution.” 

(emphasis added)). 

 Moreover, the evidence before the trial court showed that one of 

Appellant’s attorneys, on behalf of another death row inmate, filed a 

Chapter 64 motion substantially similar and, in some places verbatim, to 

Appellant’s a year-and-a-half before Appellant’s filing. 

7.RR(DNA).RX14. Notably, this filing contained an expert’s affidavit and 

an affidavit from the convicted person whereas, in Appellant’s case, these 

items did not come for months. Compare 7.RR(DNA).RX14, with

3.CR(DNA).233–34, 317–18. And the same attorney, on behalf of the 

same death row inmate, filed a second Chapter 64 motion two months 

before Appellant’s. 9.RR(DNA).RX15. Thus, it was entirely appropriate 

to find that Appellant had the legal expertise necessary to file his 

Chapter 64 motion much sooner than he did. 
49 

 Further, this Court held long ago that the pendency of federal 

habeas proceedings did not prevent a convicted person from seeking 

Chapter 64 relief on account of the “two-forums” rule. See Thacker, 177 

S.W.3d at 927. As such, it was entirely appropriate for the trial court to 

find that Appellant’s federal habeas proceeding was not an impediment 

to his seeking testing under Chapter 64. 

 To this, Appellant argues that the trial court did not take into 

account the State’s “foot-dragging” and his prior request for DNA testing. 

Appellant’s Br. 67–70. However, the evidence of the State’s supposed 

dilatoriness was not before the trial court—Appellant relies on his 

attorney’s affidavit filed in opposition to the State’s motion to accelerate 

this appeal. Appellant’s Br. 21–23. Thus, it cannot be a basis for 

undermining the trial court’s decision and it should not be considered on 

appeal. See Whitehead, 130 S.W.3d at 872. 

 Further, Appellant’s argument also ignores that requesting DNA 

testing in an almost twenty-year-old crime would naturally have 

attendant delay, especially when needing to locate and document 

evidence from four law enforcement agencies, a medical examiner’s office, 

a crime lab, and a clerk’s office in a case that had been closed for almost 
50 

sixteen years. Even assuming that Appellant’s argument can be 

considered on appeal, the “foot-dragging” did not prevent Appellant from 

filing a protective Chapter 64 motion which he could have withdrawn had 

it been rendered moot by an agreement. Cf. Pace v. DiGuglielmo, 544 

U.S. 408, 416 (2005) (noting that a state inmate may file a “‘protective’ 

petition” in federal court to ensure compliance with timeliness 

standards). Accordingly, Appellant’s latter-day blame shifting is no 

excuse for his more-than-a-decade-delayed filing. And Appellant’s lastminute attempt to shift blame for his dilatoriness to the State should be 

recognized by this Court and taken into account. See Rosales v. State, 

748 S.W.2d 451, 456 (Tex. Crim. App. 1987) (noting that, in the 

indigence-on-appeal context, the hiring of an appellate lawyer can be 

considered in deciding whether the appellant is indigent). 

 Appellant also appears to suggest that the State’s requests for 

extensions of time in another proceeding somehow undermine the trial 

court’s decision. Appellant’s Br. 16–17. Neither the argument nor the 

evidence was provided to the trial court and should not be considered on 

appeal. See Whitehead, 130 S.W.3d at 872. But, even considering this 

forfeited issue, there was only one 10-day extension in the Fifth Circuit 
51 

and two 30-day extensions in the Supreme Court after Appellant 

informally requested DNA testing, assuming that is the appropriate 

request measure. An additional 70 days in two different proceedings 

pales in comparison with Appellant’s thirteen- or almost-three-year delay 

following the enactment of Chapter 64 or its latest amendment. 

 As to his prior, non-Chapter 64 DNA testing motion, the trial court 

faulted him for failing to file despite availability under Chapter 64, 

3.CR(DNA).344, and, as Appellant admits, his non-Chapter 64 DNA 

testing motion was filed before Chapter 64’s enactment, Appellant’s Br. 

7. This demonstrates no error in the trial court’s findings. Moreover, 

Appellant dubbed his Chapter 64 motion as his “first request for postconviction DNA testing.” 2.CR(DNA).100. He can hardly fault the trial 

court for not mentioning a motion he seemingly forgot about. 

 Appellant also argues that prior versions of Chapter 64 were “legal 

impediments” to his filing for DNA testing until the 2011 amendments 

defining “biological material.” Appellant’s Br. 70–76. If this were 
52 

actually true, it is news to Henry Skinner26 and Larry Swearingen,27 who 

filed Chapter 64 motions both before and after certain amendments to 

Chapter 64. Moreover, this Court confirmed that the amendments to 

term “biological material” did not result in the sea change Appellant 

suggests. See Swearingen, 424 S.W.3d at 37 (“The recent amendments 

have not fixed this problem in most cases. No part of the amendments 

addresses a method for determining the existence of biological 

material.”). Assuming arguendo the truth of Appellant’s impediment 

argument, however, it still does not explain why Appellant waited almost 

three years after the Legislature defined “biological material” to file his 

Chapter 64 motion. Appellant clearly was dilatory in his request for DNA 

testing and the trial court’s finding of unreasonable delay should be 

upheld. 

 

26 Skinner v. State, No. AP-76675, 2012 WL 2343616 (Tex. Crim. App. June 20, 

2012); Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009); Skinner v. State, 122 

S.W.3d 808 (Tex. Crim. App. 2003). 

27 State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014); Swearingen v. 

State, 303 S.W.3d 728 (Tex. Crim. App. 2010); Swearingen v. State, 189 S.W.3d 779 

(Tex. Crim. App. 2006)
53 

B. Appellant’s overall litigation history left little doubt 

that his Chapter 64 motion was filed for purposes of 

unreasonable delay 

It is also not error for a trial court to consider the entirety of a 

convicted person’s litigation history to determine his present intent. 

Multiple courts, including this one, have found that Appellant has 

engaged in fragmented and dilatory litigation. See 10.RR(DNA).RX16, 

at 11 (“Moreover, [Appellant’s] motion is untimely. . . . [Appellant] fails 

to provide this court with any explanation as to why he waited until 

[more than two years after filing his final federal habeas petition] . . . to 

request additional testing of evidence.”); id. at 12 (“The same concerns 

this court has about [Appellant’s] untimely motion for additional testing 

of evidence applies to his extraordinary delay in proffering Bayardo’s 

affidavit.”); 10.RR(DNA).RX17, at 17 n.17 (“[W]e find that even had the 

district court not considered Dr. Bayardo’s affidavit, it would have acted 

within its discretion because the affidavit was untimely. [Appellant] has 

provided no persuasive reason for waiting to well over a decade to revisit 

Dr. Bayardo’s testimony.”); Reed V, 2009 WL 97260, at *1 (describing 

Appellant’s as “[t]aking a piecemeal approach”). 
54 

 Moreover, Appellant, multiple times and as early as almost eight 

months before the trial court entered its findings, stated he was going to 

file additional postconviction litigation, but never did—at least not before 

he filed his notice of appeal—despite providing the trial court with a 

proposed filing deadline.28 1.CR(DNA).47; 1.RR(DNA).10 (“We will be 

filing within 30 days.”). 

 Further, Appellant waited months to provide the trial court with an 

expert’s affidavit or his own, despite a statutory requirement to submit 

the latter. See Tex. Code Crim. Proc. art. 64.01(a–1). This delay occurred 

despite evidence that Appellant’s counsel knew of the personal-affidavit 

requirement a year-and-a-half earlier. Compare 7.RR(DNA).RX14, with

3.CR(DNA).317–18. In addition, Appellant’s winding and nebulous DNA 

testing request, described in detail above, should be considered here, too. 

See supra Section II. The record clearly supports that Appellant’s 

Chapter 64 motion is part and parcel with Appellant’s prior dilatory 

litigation. 

 

28 As Appellant notes, he filed his seventh state habeas application on February 

13, 2015. Appellant’s Br. 80 n.32. This is about six months after Appellant promised 

to file it. This would be another appropriate situation for the Court to take notice of 

in deciding the correctness of the trial court’s decision. See Rosales, 748 S.W.2d at 

456. 
55 

 Appellant argues that the trial court should not have taken his 

litigation history into account in determining unreasonable delay 

because, essentially, he thinks it is irrelevant. Appellant’s Br. 76–86. 

But, an individual’s prior actions can be used for a variety of purposes, 

including proving intent, plan or habit. See, e.g., Tex. R. Evid. 404(b), 

406. Thus, because Appellant shouldered the burden of proof to establish 

no unreasonable delay of his execution or administration of justice, his 

litigation history became relevant as it would in any case of establishing 

diligence. The trial court’s decision finding unreasonable delay was wellsupported by the record and should be upheld on appeal. 

V. Appellant failed to prove chain of custody for items housed 

by the Bastrop District Clerk. 

 A convicted person must prove that the items he or she seeks to test 

have “been subjected to a chain of custody sufficient to establish that [the 

items have] not been substituted, tampered with, replaced, or altered in 

any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). In 

short, a convicted person “is not entitled to DNA testing unless he first 

shows that unaltered evidence available for testing.” Prible v. State, 245 

S.W.3d 466, 467 (Tex. Crim. App. 2008) (emphasis added). Appellant 
56 

failed in his proof, at least with respect to items housed by the Bastrop 

District Clerk. 

 A postconviction investigator testified at Appellant’s Chapter 64 

hearing that all of the items in possession of the Bastrop District Clerk 

are stored comingled and without protective covering.29 4.RR(DNA)178–

83. As a certified peace officer with a background in collection of 

evidence, 4.RR(DNA).183–84, the postconviction investigator testified 

that he believed that the storage of these items allowed for 

contamination, were materially altered, and were tampered with, 

4.RR(DNA).185–86. 

 A deputy clerk testified that several other exhibits—seemingly the 

paper goods Appellant (maybe) no longer wants to test—were stored in 

the same manner as the other exhibits—together and without 

prophylactic measure. 4.RR(DNA).193–94. 

 Finally, the lead trial prosecutor in Appellant’s case testified that, 

once the items introduced at trial were handled without gloves by 

 

29 The items in possession of the Bastrop District Clerk are found in Appellant’s 

Exhibit 2. 5.RR(DNA).DX2. Appellant (maybe) requests testing of the following 

items in that official’s possession: blue pants; panties; socks; shoes; bra; nametag; 

white t-shirt; belt; earring; HEB-branded shirt; knife with metal cover; pieces of a 

green cup; and brown planner. 
57 

attorneys, court personnel, and jurors, in accord with the standards of 

that time. 4.RR(DNA).198–201. 

 Paolucci, on cross-examination, conceded that there is “a good 

chance [that the evidence in possession of the Bastrop District Clerk is] 

contaminated evidence.” 2.RR(DNA).72. And Lankford testified that the 

comingled storage was “not ideal,” with the possibility that each item has 

the DNA of more than a dozen people on it. 3.RR(DNA).149–52. She also 

conceded that, hypothetically, if someone opened the sealed packaging of 

evidence in a DNA laboratory and then touched the item ungloved, that 

would prove “you’ve tampered with our evidence.” 3.RR(DNA).155. 

 The evidence before the trial court, and Appellant’s witnesses’ 

concessions, readily establish that the items in the possession of the 

Bastrop District Clerk’s Office have been “tampered with” or “altered in 

any material respect.” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii); see 

Pate v. State, No. 10-09-00360-CR, 2011 WL 652920, at *1 (Tex. App.—

Waco Feb. 23, 2011, pet. ref’d) (“The items in question were trial exhibits, 

and therefore, handled by numerous persons during the trial.”); Riggins 

v. State, No. 11-03-00307-CR, 2004 WL 743742, at *1 (Tex. App.—

Eastland Apr. 8, 2004, no. pet.) (agreeing that evidence stored without 
58 

temperature controls by a district clerk was insufficient to prove an 

adequate chain of custody). 

 In arguing otherwise, Appellant ignores “tampered with” or 

“altered in any material respect.” Appellant’s Br. 86–89. But his 

witnesses conceded this point. While it can be said with certainty where 

these items are housed, that is not all that is required as the statutory 

definition reflects. Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(ii). And, 

while these items might still be “in a condition making DNA testing 

possible,” Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i), which was the 

primary thrust of Appellant’s witnesses’ testimony, that is a different 

requirement than chain of custody, Tex. Code Crim. Proc. art. 

64.03(a)(1)(A)(ii). Appellant did not prove that requirement here and the 

trial court’s decision should be affirmed on such basis with respect to 

those items in the possession of the Bastrop District Clerk. 

VI. Appellant did not prove biological material on the non-per 

se items he sought to test. 

 Under Chapter 64, DNA testing is only permitted for evidence 

“containing biological material.” Tex. Code Crim. Proc. art. 64.01(a–1). 

The meaning of this statute is clear—this Court has “explicitly held that 

[a convicted person] must prove biological material exists and not that it 
59 

is merely probable.” Swearingen, 424 S.W.3d at 38. Appellant failed in 

this endeavor. 

 Appellant tried to prove biological material existed on a variety of 

items—because of Appellant’s lack of clarity, however, the State is still 

unsure exactly what he seeks to test—but ultimately failed to do so.30 

Paolucci conceded that he had not physically examined the evidence and 

had no personal knowledge as to how Stites was murdered. 

2.RR(DNA).64–65. And he conceded that there was no way to know if 

there was biological material on any of these items unless DNA testing 

was performed on them. 2.RR.(DNA).67. Further, Paolucci admitted 

that “you can’t say for sure where—where these items were touched.” 

2.RR(DNA).75. 

 Lankford, too, conceded that “the only way to know for sure [if there 

is biological material] is to test the[ item] and obtain a DNA profile.” 

2.RR(DNA).143. Indeed, she stated that “I couldn’t testify to there being 

a biological stain, for instance, on an item of clothing without testing it.” 

 

30 Assuming that Appellant currently only seeks to test those items addressed on 

appeal, the non-per se biological material items are: blue pants (in the areas he seeks 

to test); panties (in the areas he seeks to test); socks; shoes; bra; nametag; hand bags; 

white t-shirt; belt; beer cans; condom; pen; earring; HEB-branded shirt; knife with 

metal cover; pieces of green cup; brown planner; lighter; box cutter; and Big Red gum 

pack. 
60 

2.RR(DNA).148. And, like Paolucci, Lankford could not say where any 

particular item had been handled such that skins cells might have been 

deposited. 2.RR(DNA)148–49, 169. 

 With respect to the non-per se physical items in this case, Appellant 

did not prove there was biological material in any particular location. 

Even if the Court assumes that “touch” DNA will be deposited from every 

contact with human skin, all of Appellant’s witnesses conceded that they 

could not prove where any particular item had been so manipulated. As 

such, this case is no different than Swearingen, where a convicted 

person’s expert said it was likely that certain items had skin cells on 

them. See Swearingen, 424 S.W.3d at 37–38. But that is not enough. 

 Further, there was trial testimony that on many of the items 

Appellant requests to be tested there were “no stains of evidentiary value 

on them.” 49.RR.89–93.31 And nothing was collected from underneath 

Stites’s fingernails because they were too short, so Appellant cannot 

prove biological material on the hand bags either. 44.RR.163. The trial 

 

31 This includes the: white T-shirt; white flakes; bra; paper napkin; white paper 

sheet; knee brace; and HEB-branded shirt. 49.RR.89–90. 
61 

court’s decision should be affirmed, at least with respect to the non-per 

se biological material items, on this basis too. 

VII. The State re-urges its motion to accelerate this appeal. 

On January 27, 2015, the State moved this Court to accelerate 

Appellant’s appeal. State’s Motion for Accelerated Appeal, Reed v. State, 

No. AP-77,054 (Tex. Crim. App. Jan. 27, 2015). As apparent from the 

arguments above, Appellant has engaged in piecemeal and dilatory 

litigation tactics and it is clear that Appellant’s Chapter 64 motion and 

the attendant appeal have been filed to unreasonably delay the execution 

of his sentence and the administration of justice. As such, the State 

respectfully re-urges the motion to accelerate for purposes of this Court’s 

decisional process. Appellant should not be allowed to delay his presently 

scheduled execution date. 

 
62 

PRAYER FOR RELIEF 

 The State respectfully requests that the Court affirm the trial 

court’s decision denying Appellant’s request for DNA testing pursuant to 

Chapter 64. 

Respectfully submitted, 

BRYAN GOERTZ 

Criminal District Attorney 

Bastrop County, Texas 

 /s/ Matthew Ottoway 

MATTHEW OTTOWAY 

Assistant Criminal District Attorney/ 

Assistant Attorney General 

Texas Bar No. 24047707 

Post Office Box 12548, Capitol Station 

Austin, Texas 78711 

Tel.: (512) 936-1400 

Fax: (512) 320-8132 

Email: matthew.ottoway@texasattorney 

 general.gov

Attorneys for the State 
63 

WORD-LIMIT CERTIFICATE OF COMPLIANCE 

 This brief complies with Rule 9.4(i)(2)(A) of the Texas Rules of 

Appellate Procedure. It contains 12,125 words, Microsoft Word 2013, 

Century Schoolbook, 14 points. 

/s/ Matthew Ottoway 

MATTHEW OTTOWAY 

Assistant Criminal District Attorney/ 

Assistant Attorney General 

CERTIFICATE OF SERVICE 

 I do hereby certify that a true and correct copy of the foregoing 

pleading was served by placing same in the United States mail, postage 

prepaid, on this the 23rd day of February, 2015, addressed and 

electronically sent to: 

Bryce Benjet Mark S. Chehi 

40 Worth Street, Suite 701 Robert A. Weber 

New York, New York, 10013 Jason M. Liberi 

bbenjet@innocenceproject.org Nicole A. DiSalvo 

 Andrew G. Mirsis 

Andrew F. MacRae SKADDEN, ARPS, SLATE, MEAGHER & 

LEVATINO PACE LLP FLOM LLP 

1101 S. Capital of Texas Hwy. One Rodney Square, P.O. Box 636 

Building K, Suite 125 Wilmington, Delaware 19899 

Austin, Texas 78746 mchehi@skadden.com

amacrae@levatinopace.com robert.weber@skadden.com 

 /s/ Matthew Ottoway 

MATTHEW OTTOWAY 

Assistant Criminal District Attorney/ 

Assistant Attorney General