## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-78,955-01

EX P ARTE DANNY LEE HOLL OWAY, II, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 18662 IN THE 6T H DISTRICT COURT

F ROM LAMA R COUNTY

Per curiam . O P I N I O N Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y o ung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was char g ed with murder b u t convicted by a jury of the lesser included offe nse of manslau gh t er . He was sentenc ed to twenty y ear s’ imprisonment. The Six th Court of Appea ls aff irmed his conviction. Holloway v. State , No. 06-02-00216- CR, 2013 W L 22491053 (Tex. App. – Texarkana , Nov. 5, 2003, pet. ref’d ). I n 2006, Applicant moved for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedur e. I n 2009, the trial court g rante d the motion and order ed t h e DN A testing reque sted by Applicant. The subject of the testing was a knife that was found in Applicant’s2

car afte r the offe nse. Severa l witnesses testified at Applicant’s trial that the knife looked like the knife wielded by Applicant during the fig ht that led to the death of the victim, Ashley L ee. Although the kni fe had tested presumptively positive for blood, no DNA testing had been perfor med on the knife at the time of Applicant’s tria l. The results of the DNA testing perf ormed on two stains from the knife indicated that Ashley L ee was excluded as a possible source of, or contributor to, the DNA profile obtained from the knife. A hear ing was conducte d on the post-conviction DNA testing results, at which Applicant argued that h e wa s en t i t l ed to a new trial beca use the State had ref

err ed to the knife as the wea pon used b y Applicant and r elied on the knife to prove the a ffirmative deadly -we apon alleg ation. On Dec ember 3, 2012, Applicant filed this application for writ of habea s corpus in the trial court. This Court rec eived the application on J anua ry 1 4 , 2 0 13. Applicant orig inally raised five g rounds for revie w in his application, including prosec utorial misconduct in fa i l i n g t o disclose exculpatory evidenc e to the defense, ineffec tive assistance of t rial counsel, and actual i nnocenc e. On Fe bruar

y 13, 2013, this Court rema nded the matter to the trial cour t to obtain finding s and aff idavits addressing Applicant’s c laims. On April 10, 2013, the trial court conducte d a habea s hear ing, at which Applicant indicated that he intended to pursue only the actua l-innocenc e claim. After the habea s hear ing, the trial court enter ed finding s of fac t and conclusions of law, rec ommending that relief be g rante d on the basis of actua l innocence

. Howeve r, this Court has revie wed the transcr ipts of the trial, t h e p ost-conviction DNA hear ing and the habea s hear ing, and conclude s that the trial court’s finding s of fac t, conclusions of law, and r ecommenda

tion to gra

nt relief a re not supporte d by

the re cord.3

An applicant for habeas relief based on a claim of actual innocenc e mus t demonstrate that the newly discovere d evidenc e, if true, cre ates a doubt as to the corr ectne ss of the verdic t sufficie nt to undermine confide nce in the verdic t and that it is probable that the verdic t would be differ ent on retria l. Ex parte Elizondo , 947 S.W .2d 202, 206 (Tex. Crim. App. 1996). I n the context of a fre estanding claim of actua l innocenc e, an a pplicant ca

n establish that it is “proba ble” that the verdict would be differ ent on retria l only if he can “show by cl ea r an d co n v incing evidenc e that no

rea sonable juror would have c onvicted him in light of the ne w evidenc e.” Id., at 209. I n this c ase, the trial court finds that the ex cl u s i o n o f the victim, Ashley L ee, as a possible source of, or contributor to, the DNA profile found on the knife taken from Applicant’s car proves that the knife

was not the murder wea

pon. The trial court finds that there is a rea sonable probability that the knife

was the piece of tang ible evidenc e relied upon by the jury to convict Applicant, and conclude s that there is a reasonable probability t h at n o rea sonable juror would have convicted Applicant had the DNA e vidence been a

vailable a t trial. The evidenc e pre sented at trial in this case included testimony from sever al witnesses who

wer e prese nt duri n g t h e fi gh t at a Paris, Texas nightc lub that led to the death of Ashley L ee, a by stander to the fig ht. The State prese nted testimony from at least six witnesses who saw Applicant with a knif

e o r saw Applicant stab someone during the melee. Two of the State’s witnesses, Courtney Gra

y and Mike L ipscomb, wer e themselves stabbed by Applicant during the fig ht, and two other witnesses testified that they saw Applicant stab Ashley L ee while he was wildly swing ing the knife a round in the cr owd. The defe nse prese nted testimony from Applicant’s common-law wife, whose hand was cut with a serr ated knife when she was try ing to extricate Applicant from the fig ht. She testified that she4

did not see any one with a knife at the scene , and that Applicant did not own a knife like the one that had been t aken from hi s car while t hey wer e at the hos pital g etting her hand treated

. The defense prese nted testimony from three other witnesses who testified that t h ey did not see any one with a knife on the night of the offe nse, one witness who saw Applicant with a small pocket knife, not the larg e s u rvi val kni fe taken from Applicant’s car, and one witness who t estified that another patron of the nig htclub had a knif e re sembling the rec overe d knife e arlier in the evening

. The knife rec overe d from Applicant’s car was tested for fing erpr ints, and the knife and a rag in which it was wra

pped wer e tested for the prese nce of blood. No fing erpr ints wer e found, and the rag tested negative for blood. Howeve r, t he two stains on the kni fe t es t ed p resumptively positive for blood. No additional evidenc e reg arding the source of the blood or DNA was prese nted at trial. The State now argues that the trial prosec utor never re p re s ented to the jury that the knife found in Applicant’s car was the knife used by Applicant to stab Ashley L ee. Howeve r, the State’s witnesses testified that the knife used by Applicant looked like the knife rec overe d from Applicant’s

car , and a police office r testified that the knife rec overe d from Applicant’s car qualified as a deadly

wea pon, in support of the aff

irmative deadly -we apon alleg ation. Clearly , the implication at trial was that the knife rec overe d from Applicant’s car was the knife he used to sta b three people during the fig ht. Howeve r, the absenc e of Ashley L ee’ s DNA from the stains on the k nife is not clea rly exculpatory , as arg

ued by Applicant. The testimony at trial indicated that Applicant stabbed at least two other people during the fig ht and sug g ested that he may also have cut his wife’ s hand while she

was try ing to e x tricate him from the fig ht. The abse nce of fing erpr ints on the knife was explained at trial by the possibili ty that the knife had been wiped off prior to its discovery

. Such clea ning could5

also have remove d some or all of A shley L ee’ s DNA fr om the knife. Fur thermore , even if, as Applicant argues, the knife was “t h e piece of tang ible evidenc e” upon which the jury relied to convict him, there was ample “intang ible” evidenc e that Ap p l i cant stabbed severa l people with a knife on the ni g ht of t he offense, i n cl u d i ng the t estimony of people who saw A

pplicant stab people , and people who wer e themselve s stabbed. The results of the Chapter 64 DNA testing in this case do not show by clea r and convincing evidenc e that no re asonable juror would have convicted him in light of the new e vidence . Even if evidenc e had been prese nted at t ri al that Ashley L ee’ s blood was not on the knife discovere d in Applicant’s car , it is unlikely th at such evidenc e would have overc ome the testimony of the witnesses who saw Applicant with a knife, saw Applicant use the knife, or wer e themselves injured by the knife wielded by Applicant, whether or not i t was the same knife found in his car afte r the offe nse. Relief is denied. Copies of this opinion shall be sent to the Texas D epar tment of Criminal J ustice-Corr ectional Institut ions Division and Pardons and Paroles Division.

Deliver ed: Octobe r 30, 2013 Publis h.