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EX PARTE BROXTON v. <<

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Court of Criminal Appeals of Texas.

EX PARTE Eugene Alvin BROXTON, Applicant

NO. WR-42,781-04

Decided: September 28, 2022

James G. Rytting, Houston, Houston, for Applicant.

ORDER

We have before us a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5.1

In 1992, a jury convicted Applicant of capital murder for the 1991 killing of Sheila Dockens in the course of a robbery. Tex. Penal Code § 19.03(a)(2). The jury answered the special issues submitted pursuant to Article 37.071 and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Broxton v. State, 909 S.W.2d 912, 916 (Tex. Crim. App. 1995). We denied his post-conviction application for a writ of habeas corpus challenging his 1992 conviction and sentence. Ex parte Broxton, No. WR-42,781-01 (Tex. Crim. App. October 27, 1999) (not designated for publication).

Applicant later obtained relief via habeas corpus in the United States District Court and received a new punishment hearing. Broxton v. Johnson, 2001 U.S. Dist. LEXIS 25715, at 13 (S.D. Tex., March 28, 2001). At the new punishment hearing in 2003, the jury answered the special issues in the State's favor, and the trial court sentenced Applicant to death. This Court affirmed the judgment of the trial court. Broxton v. State, No. AP-71,488, (Tex. Crim. App. June 29, 2005) (not designated for publication). We denied relief on Applicant's initial post-conviction writ of habeas corpus application challenging his 2003 death sentence. Ex Parte Broxton, No. WR-42,781-02 (Tex. Crim. App. Jan. 27, 2010) (not designated for publication). We dismissed his subsequent post-conviction application for a writ of habeas corpus in 2011. Ex parte Broxton, No. WR-42,781-03 (Tex. Crim. App. June 8, 2011) (not designated for publication).

Applicant filed the instant application in December 2021. He raises eleven claims. Specifically, Applicant asserts that: the State withheld favorable and material evidence regarding the recovery of the weapon used in the instant offense in violation of Brady 2 (Claim 1); the State presented false and misleading testimony about the murder weapon (Claim 2); the State violated due process when it failed to disclose a supplemental report from the Harris County Sheriff's Office (Claim 3); he is entitled to relief under Article 11.073 based on “newly available DNA evidence” (Claim 4) and “newly available print evidence” (Claim 5); State's use of peremptory strikes was racially discriminatory (Claim 7); and he is actually innocent (Claim 8). He also argues that trial counsel were ineffective for failing to: challenge the reliability of eyewitness identification testimony (Claim 6); present mitigating evidence at sentencing (Claim 9); rebut the State's future dangerousness argument (Claim 10); and challenge evidence relating to the murder and extraneous offenses (Claim 11).

To satisfy Article 11.071, § 5(a), the legal or factual basis must have been unavailable as to all previous applications. We have held that Article 11.073 provides a new legal basis for habeas relief in the small number of cases where an applicant can show by a preponderance of the evidence that he would not have been convicted if the newly available scientific evidence had been presented at trial. Ex parte Robbins, 478 S.W.3d 678, 690 (Tex. Crim. App. Nov. 26, 2014). “An applicant also must establish that the facts he alleges are at least minimally sufficient to bring him within the ambit” of Article 11.073. Id.

Article 11.073 applies to relevant scientific evidence that was not available to be offered by the defendant at trial, or that contradicts scientific evidence relied on by the State at trial. Art. 11.073(a). In this case, with regard to Claim 4, Applicant has alleged prima facie facts sufficient to invoke Article 11.073.

After reviewing the record, we have determined that Claim 4 meets the requirements of Article 11.071 § 5(a). We therefore remand that claim to the trial court for a review on the merits. See Art. 11.071, § 5(c); Robbins, 478 S.W.3d at 690. The remaining claims do not meet the requirements of Article 11.071 § 5(a) and should not be reviewed.

IT IS SO ORDERED THIS THE 28th DAY OF SEPTEMBER, 2022.

DISSENTING OPINION

In this capital murder case, Applicant claims that he is entitled to relief from his conviction because of newly available DNA evidence. The Court finds that Applicant has satisfied the subsequent-writ bar and remands the case to the trial court for a review on the merits. I disagree because the DNA evidence is not particularly significant and because inculpatory evidence at trial strongly linked Applicant to the crime. Notably, the surviving victim of the attack identified Applicant as the culprit, and stolen items from the crime were recovered from Applicant and his girlfriend shortly after the offense. In addition, another person testified that Applicant admitted to committing the crime, and a weapon matching a gun displayed during the attack was recovered from Applicant. Consequently, I would conclude that Applicant has not made a prima facie showing under Article 11.073 that he would not have been convicted if the new the scientific evidence had been presented at trial. And because he fails to make such a prima facie showing, he cannot satisfy an exception to the subsequent-writ bar.

Applicant has filed two prior habeas applications: one in 2005 and the other in 2011. A court may not consider the merits of a subsequent habeas application in a death penalty case unless an exception set out in Section 5 of the habeas statute is met.1 At issue here is whether Applicant has shown a “new” legal or factual basis for relief. To demonstrate a new basis under the statute, the subsequent application must contain “sufficient facts establishing that ․ the current claims and issues have not been and could not have been presented previously in a timely initial application or a previously considered application ․ because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.”2 Here, applicant alleges a new legal basis, the “new science” provisions of Article 11.073, enacted in 2013.3 To avail himself of that new legal basis, he relies on post-trial DNA testing, most of which also occurred after his 2011 application (testing in 2003, 2015, 2017, and 2018).

To avail himself of a new legal claim, however, an applicant must allege facts that bring his claim “under the umbrella of that ‘new’ legal claim.”4 He must “make out a prima facie case for relief under the new law.”5 That reasoning applies equally to an applicant's reliance on new facts, because the new facts must still establish a claim upon which relief could be granted.6 One of the elements needed to prevail under Article 11.073 is a finding that “had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.”7

Since Applicant's trial, dozens of items of physical evidence have been subjected to DNA testing. Applicant has been excluded as a possible contributor to the DNA on all of the tested items. Unknown male DNA was identified as the contributor of a single-source profile on a key chain with keys and a remote alarm that had been handled by the attacker and was recovered in the car of State's witness Chris Shook.8 For several reasons, none of this DNA evidence matters.

First, the jury already knew that Applicant's fingerprints had not been found on any of the items tested before trial, so any testimony about the lack of Applicant's DNA on the items would be entirely consistent with the evidence the jury already heard. It would not have affected the verdict.

And as far as evidence that someone else's DNA was present, touch DNA poses special problems because skin cells are ubiquitous, a person can deposit someone else's skin cells on something he touches, and we cannot determine when a skin cell was deposited.9 Even on an item as personal as keys, the presence of an unknown person's DNA does not mean that he was involved in the crime. We do not know whether the unknown person even touched the key chain, and even if he did, we do not know whether the circumstances surrounding that touching would connect him to the crime. Applicant says that the evidence would point more directly to Chris Shook's role in the offense than to Applicant's but, notably, the DNA on the key chain has not been compared to Chris Shook's DNA.

Second, the evidence at trial established that Waylon Dockens, the deceased's husband who survived the attack, positively identified Applicant, both by appearance and by voice, as the person who attacked him and his wife Sheila. There was only one attacker, and according to Applicant's pleadings in this application, he is a dark-skinned Black man. Christopher Shook, the only other person shown to have any connection to the crime—because he was in possession of some of the stolen items and claimed Applicant gave those items to him and confessed to him—is white. There is no likelihood that Waylon confused the two men. Applicant speculates that Shook could have conspired with a man named Billy Gibson, who is Black, to commit the offense and pin it on Applicant, but there does not appear to me to be a strong basis for such speculation.

Third, and critically, about 24 hours after the murder, Applicant and his girlfriend were found in possession of property stolen from the victims. Included in the items stolen were a watch, a small folding knife, a purse, a wallet, and an engagement ring. Police recovered a watch and a small folding knife from Applicant's person when they arrested him on a warrant for another offense.10 Waylon Dockens testified that these items were either his or exact duplicates. He testified that the knife was in fact the same brand, a Kershaw. The police recovered a purse, a wallet, and an engagement ring from Applicant's girlfriend while she was present in Applicant's apartment.11 Waylon testified that the purse was in fact his wife's, that the wallet looked exactly like the one his wife had, and that the ring was either his wife's or was exactly like the one his wife owned. No explanation has been given for how Applicant and his girlfriend could have acquired these items other than through Applicant's commission of the robbery.

The DNA evidence in this case does not rebut the strong evidence incriminating Applicant. An eyewitness identified Applicant as the perpetrator, and a mere 24 hours after the robbery, Applicant (and his girlfriend) were found in possession of some of the stolen items without any exculpatory explanation.

Although the eyewitness identification and the possession of stolen items listed above are by themselves enough to reject a conclusion that the new DNA evidence would have made a difference at Applicant's trial, there was other significant, though less weighty, evidence of Applicant's guilt. Applicant fled from the police, and the police recovered a .22 pistol from the ground next to Applicant where he fell at the end of the chase. When shown the weapon, Waylon Dockens testified, “It appears to be the same weapon [that was displayed during the attack] or one similar or exactly to it.”

Christopher Shook testified that Applicant confessed that he robbed, pistol-whipped, and shot a couple at the Magnolia Motel. He further testified that Applicant gave him some of the items that were stolen during the attack and told him to throw them away. These items included a calendar book, address book, and savings account book identified as belonging to Sheila Dockens, and a voided check belonging to her. These items ended up in an orange bag that Shook said he tossed over the fence at Applicant's apartment. Shook also claimed that Applicant gave him the victims’ key chain, with keys and car remote, that were later recovered from Shook's car. Shook had a criminal record, and Applicant argues that his testimony is not trustworthy. But Shook was not the attacker, so he had to have gotten the stolen items from somewhere else. Even if the veracity of Shook's testimony would seem uncertain in isolation, it looks more incriminating in light of Waylon's eyewitness identification of Applicant and of Applicant's (and his girlfriend's) undisputed possession of some of the stolen items.

I respectfully dissent.

FOOTNOTES

1.   Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.

2.   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

1.   Tex. Code Crim. Proc. art. 11.071, § 5(a).

2.   Id. § 5(a)(1).

3.   See Acts 2013, 83rd Leg., ch. 410 (S.B. 344).

4.   Ex parte Staley, 160 S.W.3d 56, 63 (Tex. Crim. App. 2005).

5.   Ex parte Oranday-Garcia, 410 S.W.3d 865, 867 (Tex. Crim. App. 2013).

6.   See Ex parte Henderson, 246 S.W.3d 690, 693 (Tex. Crim. App. 2007) (Keller, P.J., dissenting) (discussing Staley).

7.   Tex. Code Crim. Proc. art. 11.073(b)(2).

8.   DNA testing of items used to restrain the victims yielded mixtures, with a female major contributor matching Sheila Dockens, the murder victim, and at least one male minor contributor. No interpretable result were obtained from the minor component of the mixtures.

9.   Hall v. State, 569 S.W.3d 646, 658 (Tex. Crim. App. 2019).

10.   The knife was in his pocket, and Applicant was wearing or holding the watch. At trial, defense counsel argued that there was a discrepancy in the testimony as to how Applicant was possessing the watch, but the State argued that this showed, if anything, that Applicant was trying to get rid of it.

11.   Applicant alleges that “no physical evidence of the offense was found in his apartment,” but this seems to be inaccurate.

Per curiam.

Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, JJ., joined.

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