AFFIRM; and Opinion Filed January 30, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00746-CR No. 05-14-00747-CR
CLINTON WEBB, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F85-98318-H and F85-98760-H
MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Lang-Miers Clinton Webb and his brother, John Will Webb, were convicted of aggravated robbery
and murder of an Exxon self-service gas station manager in 1985. Clinton was sentenced to life
in prison for both offenses. In 2012, he filed a pro se motion for post-conviction forensic DNA
testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. arts. 64.01–.05 (West 2006 & Supp. 2014). The trial court appointed one lawyer to
represent both appellant and his brother. Appointed counsel filed a combined formal motion for
DNA testing for both appellant’s and his brother’s respective two cases. The trial court ordered
mitochondrial DNA testing of loose hair found in the victim’s hand, but did not order DNA
testing of two firearms and spent bullets. On appeal, appellant argues that the trial court erred by
denying DNA testing of the firearms and spent bullets. We resolve appellant’s sole issue against him. We issue this memorandum opinion because all dispositive issues are settled by law. 1
TEX. R. APP. P. 47.4.
Standard of Review
We review a trial court’s decision on a motion for post-conviction DNA testing under a
bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). “[W]e
afford almost total deference to a trial court’s determination of issues of historical fact and
application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo
other application-of-law-to-fact issues.” Id.
Applicable Law
Article 64.01 of the code of criminal procedure states that a convicted person may file a
motion for DNA testing of evidence containing biological material. TEX. CODE CRIM. PROC.
ANN. art. 64.01(a–1). It defines “biological material” as “an item that is in possession of the state
and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone,
bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA
testing[.]” Id. art. 64.01(a)(1). The convicted person is required to file an affidavit with the
motion, “sworn to by the convicted person, containing statements of fact in support of the
motion.” Id. art. 64.01(a–1).
Upon receiving the convicted person’s motion, the trial court must notify the State and
require the State to “deliver the evidence to the court, along with a description of the condition of
the evidence” or “explain in writing to the court why the State cannot deliver the evidence to the
court.” Id. art. 64.02(a). The trial court may order DNA testing if certain conditions are met. Id.
art. 64.03(a). Among those conditions is that the convicted person “establishes by a
1 We are simultaneously issuing our opinion in appellant’s brother’s appeals, case nos. 05-14-00743-CR and 05-14-00744-CR.
–2– preponderance of the evidence that . . . [he] would not have been convicted if exculpatory results
had been obtained through DNA testing[.]” Id. art. 64.03(a)(2)(A).
Discussion
Appellant’s pro se motion asked for DNA and fingerprint testing of “the firearm
introduced at the trial in this cause.” He stated that “a firearm [ballistics] exam was conducted
on a firearm . . . purporting to be used in the crime by defendant Clinton Webb” but “the results
were not absolutely conclusive that this was the firearm used” and DNA and fingerprint testing
was not done. Appellant attached an affidavit to his pro se motion reiterating the allegations in
his motion and stating, “It is probable that Defendant Clinton Webb, would not have been
prosecuted or convicted if results had been obtained with DNA and fingerprint testing.”
Appointed counsel’s formal motion asked for DNA testing of “evidence containing
biological material” without referring to any specific evidence. In the affidavit attached to the
motion, appellant also did not refer to any specific evidence, but declared, “The ultimate
question in this case was whether I . . . committed the offense of aggravated robbery . . . . There
is a reasonable probability that it would show that I did not commit this offense if testing was
performed on the biological material.” 2 The affidavit did not contain statements of fact to
support why appellant thought DNA testing of the evidence would show he did not commit the
offense.
After receiving notice of appellant’s motion, the State reported to the trial court that the
evidence in the case consisted of loose hair found in the victim’s hand, the victim’s head-hair
standard, two firearms, and spent bullets. The State did not oppose testing the hair found in the
victim’s hand, but it did oppose testing the firearms and spent bullets. The State argued that
appellant had not established there was biological evidence available for testing on the firearms
2 Our appellate record does not contain an affidavit by appellant in the murder case.
–3– and spent bullets, and, even if he had, he did not show “that there is at least a 51% chance that
the jury would not have convicted him had it been aware of the presumptively favorable test
results.”
The trial court signed an order granting mitochondrial DNA testing of the loose hair
found in the victim’s hand. After the results came back that “no amplifiable human
mitochondrial DNA was observed for the hairs from the victim’s hand,” the court issued its
finding that “had these results been available during the trials of these offenses, it is NOT
reasonably probable that [appellant] would not have been convicted.”
On appeal, appellant argues that the trial court erred by denying his motion for DNA
testing of the firearms and spent bullets. But although appellant’s pro se motion asked the court
for testing of a firearm, it did not request testing of spent bullets, and his formal motion did not
request testing of any specific piece of evidence. And because there is no record of a hearing on
appellant’s motion in our appellate record, the record does not show that appellant orally moved
for testing of those items. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002)
(because different motions asked for testing of different evidence, court “not entirely clear as to
what evidence appellant wants tested”).
Additionally, the court’s order did not deny testing of the firearms and spent bullets. In
fact, the order did not refer to that evidence at all. Even if we consider appellant’s pro se motion
as a request for DNA testing on a firearm, the record does not reflect that appellant asked for or
got a ruling on the request. See Shannon v. State, 116 S.W.3d 52, 54–55 (Tex. Crim. App. 2003)
(rules of preservation apply to motions for post-conviction DNA testing). And appellant’s
affidavit did not include a statement of facts to support testing of the firearms or spent bullets.
See TEX. CODE CRIM.
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AFFIRM; and Opinion Filed January 30, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00746-CR No. 05-14-00747-CR
CLINTON WEBB, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F85-98318-H and F85-98760-H
MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Lang-Miers Clinton Webb and his brother, John Will Webb, were convicted of aggravated robbery
and murder of an Exxon self-service gas station manager in 1985. Clinton was sentenced to life
in prison for both offenses. In 2012, he filed a pro se motion for post-conviction forensic DNA
testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. arts. 64.01–.05 (West 2006 & Supp. 2014). The trial court appointed one lawyer to
represent both appellant and his brother. Appointed counsel filed a combined formal motion for
DNA testing for both appellant’s and his brother’s respective two cases. The trial court ordered
mitochondrial DNA testing of loose hair found in the victim’s hand, but did not order DNA
testing of two firearms and spent bullets. On appeal, appellant argues that the trial court erred by
denying DNA testing of the firearms and spent bullets. We resolve appellant’s sole issue against him. We issue this memorandum opinion because all dispositive issues are settled by law. 1
TEX. R. APP. P. 47.4.
Standard of Review
We review a trial court’s decision on a motion for post-conviction DNA testing under a
bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). “[W]e
afford almost total deference to a trial court’s determination of issues of historical fact and
application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo
other application-of-law-to-fact issues.” Id.
Applicable Law
Article 64.01 of the code of criminal procedure states that a convicted person may file a
motion for DNA testing of evidence containing biological material. TEX. CODE CRIM. PROC.
ANN. art. 64.01(a–1). It defines “biological material” as “an item that is in possession of the state
and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone,
bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA
testing[.]” Id. art. 64.01(a)(1). The convicted person is required to file an affidavit with the
motion, “sworn to by the convicted person, containing statements of fact in support of the
motion.” Id. art. 64.01(a–1).
Upon receiving the convicted person’s motion, the trial court must notify the State and
require the State to “deliver the evidence to the court, along with a description of the condition of
the evidence” or “explain in writing to the court why the State cannot deliver the evidence to the
court.” Id. art. 64.02(a). The trial court may order DNA testing if certain conditions are met. Id.
art. 64.03(a). Among those conditions is that the convicted person “establishes by a
1 We are simultaneously issuing our opinion in appellant’s brother’s appeals, case nos. 05-14-00743-CR and 05-14-00744-CR.
–2– preponderance of the evidence that . . . [he] would not have been convicted if exculpatory results
had been obtained through DNA testing[.]” Id. art. 64.03(a)(2)(A).
Discussion
Appellant’s pro se motion asked for DNA and fingerprint testing of “the firearm
introduced at the trial in this cause.” He stated that “a firearm [ballistics] exam was conducted
on a firearm . . . purporting to be used in the crime by defendant Clinton Webb” but “the results
were not absolutely conclusive that this was the firearm used” and DNA and fingerprint testing
was not done. Appellant attached an affidavit to his pro se motion reiterating the allegations in
his motion and stating, “It is probable that Defendant Clinton Webb, would not have been
prosecuted or convicted if results had been obtained with DNA and fingerprint testing.”
Appointed counsel’s formal motion asked for DNA testing of “evidence containing
biological material” without referring to any specific evidence. In the affidavit attached to the
motion, appellant also did not refer to any specific evidence, but declared, “The ultimate
question in this case was whether I . . . committed the offense of aggravated robbery . . . . There
is a reasonable probability that it would show that I did not commit this offense if testing was
performed on the biological material.” 2 The affidavit did not contain statements of fact to
support why appellant thought DNA testing of the evidence would show he did not commit the
offense.
After receiving notice of appellant’s motion, the State reported to the trial court that the
evidence in the case consisted of loose hair found in the victim’s hand, the victim’s head-hair
standard, two firearms, and spent bullets. The State did not oppose testing the hair found in the
victim’s hand, but it did oppose testing the firearms and spent bullets. The State argued that
appellant had not established there was biological evidence available for testing on the firearms
2 Our appellate record does not contain an affidavit by appellant in the murder case.
–3– and spent bullets, and, even if he had, he did not show “that there is at least a 51% chance that
the jury would not have convicted him had it been aware of the presumptively favorable test
results.”
The trial court signed an order granting mitochondrial DNA testing of the loose hair
found in the victim’s hand. After the results came back that “no amplifiable human
mitochondrial DNA was observed for the hairs from the victim’s hand,” the court issued its
finding that “had these results been available during the trials of these offenses, it is NOT
reasonably probable that [appellant] would not have been convicted.”
On appeal, appellant argues that the trial court erred by denying his motion for DNA
testing of the firearms and spent bullets. But although appellant’s pro se motion asked the court
for testing of a firearm, it did not request testing of spent bullets, and his formal motion did not
request testing of any specific piece of evidence. And because there is no record of a hearing on
appellant’s motion in our appellate record, the record does not show that appellant orally moved
for testing of those items. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002)
(because different motions asked for testing of different evidence, court “not entirely clear as to
what evidence appellant wants tested”).
Additionally, the court’s order did not deny testing of the firearms and spent bullets. In
fact, the order did not refer to that evidence at all. Even if we consider appellant’s pro se motion
as a request for DNA testing on a firearm, the record does not reflect that appellant asked for or
got a ruling on the request. See Shannon v. State, 116 S.W.3d 52, 54–55 (Tex. Crim. App. 2003)
(rules of preservation apply to motions for post-conviction DNA testing). And appellant’s
affidavit did not include a statement of facts to support testing of the firearms or spent bullets.
See TEX. CODE CRIM. PROC. ANN. art. 64.01(a–1); Dinkins, 84 S.W.3d at 642 (general statement
–4– that statutory requirements were met not sufficient; appellant must provide affidavit containing
statements of fact to support motion).
Appellant argues that the State did not deliver the firearms and spent bullets to the court
as the statute required, and if it had, he could have determined whether they contained biological
evidence to test. But appellant does not cite the record showing he made this argument below or
that he asked the trial court to inquire of the State about the delivery of the evidence. See
Shannon, 116 S.W.3d at 54–55 (appellant may not complain on appeal if appellant did not ask
court to make inquiry of State about existence of evidence).
Appellant also argues that if the results of testing on the firearms and spent bullets had
been exculpatory, he would not have been convicted because the evidence showed that “there
were two unknown individuals who actually committed this offense” and “there is certainly a
greater than 50% chance that [he] would not have been convicted.” See Holberg v. State, 425
S.W.3d 282, 286–87 (Tex. Crim. App. 2014) (Chapter 64 requires convicted person to “show by
a preponderance of the evidence (that is, greater than 50% likelihood) that [he] would not have
been convicted had any exculpatory results generated by the proposed testing been available at
the time of [his] trial.”). Appellant has not cited and we have not found where he made this
argument to the trial court. See Shannon, 116 S.W.3d at 54–55. But even if he had, the evidence
at trial showed that four men, one of whom was appellant, committed the aggravated robbery and
murder. Webb v. State, 766 S.W.2d 236, 238 (Tex. Crim. App. 1989). 3 Consequently, appellant
bore the burden to establish that he would not have been convicted as a principal or as a party.
Ex parte Gutierrez, 337 S.W.3d 883, 900 (Tex. Crim. App. 2011) (appellant’s burden more
difficult when there is no lone offender whose DNA must have been left at scene); Prible v.
3 In his motion, appellant did not cite evidence from the trial. On appeal, he cites the evidence as described by the court of criminal appeals in its opinion. See Webb v. State, 766 S.W.2d 236, 238 (Tex. Crim. App. 1989). The court said the evidence at trial showed that there was an eyewitness to the crime who identified appellant, his brother, and two other individuals as the persons who robbed and murdered the gas station manager. Id. The eyewitness identified appellant as the shooter. Id.
–5– State, 245 S.W.3d 466, 469 (Tex. Crim. App. 2008) (testing not authorized if it would not result
in exculpatory evidence that would have altered outcome of trial). Additionally, there are no
statements of fact in appellant’s affidavit to support a finding in his favor on this issue. See
Gutierrez, 337 S.W.3d at 901 (concluding that even if DNA was present in fingernail scrapings,
it “might just as likely have come from appellant’s accomplice . . . and that would not exculpate
appellant”).
We conclude that appellant did not meet the Chapter 64 requirements for DNA testing of
the firearms and spent bullets. To the extent the trial court’s order implicitly denied DNA testing
of those items, we cannot conclude that the court erred. We resolve appellant’s sole issue against
him.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
140746F.U05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLINTON WEBB, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-14-00746-CR V. Trial Court Cause No. F85-98318-H. Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.
Based on the Court’s opinion of this date, the September 17, 2013 order of the trial court is AFFIRMED.
Judgment entered this 30th day of January, 2015.
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CLINTON WEBB, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-14-00747-CR V. Trial Court Cause No. F85-98760-H. Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.
Based on the Court’s opinion of this date, the September 17, 2013 order of the trial court is AFFIRMED.
–8–