Leon Harrison v. the State of Texas

Affirmed and Memorandum Opinion filed November 7, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00324-CR

LEON HARRISON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 635921

MEMORANDUM OPINION

Appellant Leon Harrison (“appellant”) appeals the trial court’s denial of his
post-conviction motion for mitochondrial DNA testing of hair fragments. This is
appellant’s sixth appeal from successive motions for post-conviction DNA testing.1

1
Harrison v. State, No. 14-02-01239-CR, 2003 WL 22902265, at *1 (Tex. App.—
Houston [14th Dist.] Dec. 9, 2003, pet. ref’d) (mem. op., not designated for publication)
(“Harrison I”); Harrison v. State, No. 14-07-00287-CR, 2008 WL 220711, at * 1, (Tex. App.—
Houston [14th Dist.] Jan. 29, 2008, pet. ref’d) (mem. op., not designated for publication)
(“Harrison II”); Harrison v. State, No. 14-13-00239-CR, 2014 WL 801302 at *1 (Tex. App.—
Houston [14th Dist.] Feb. 27, 2014, pet. ref’d) (per curiam) (mem. op., not designated for
In two issues, appellant contends that (1) reasonable grounds exist for his post-
conviction motion because mitochondrial DNA testing was unavailable at the
Texas Department of Public Safety Crime Laboratory (“Crime Lab”) when certain
evidence underwent DNA testing and the hair fragments have not been previously
tested; and (2) the trial court erred in denying his motion for appointed counsel.
Because appellant has not met his burden under article 64.03(a)(2)(A) of the Code
of Criminal Procedure to obtain post-conviction DNA testing and because the trial
court did not abuse its discretion in denying appointment of counsel for appellant’s
motion, we affirm.

I. BACKGROUND

Appellant was convicted of sexual assault in 1992. The complainant, a
fifteen-year-old girl, alleged that she was “gang raped” by several men, including
appellant. Harrison II, 2008 WL 220711, at * 1. Two of the men, Roderic Brooks
and Ernest Pickaree, confessed and implicated appellant as an additional assailant.
Id. The complainant did not identify a fourth man—appellant’s cousin Lawrence
Pickaree—in a line-up. See id. However, she identified appellant in a line-up. Id.
Appellant signed a confession, which he has since argued was inaccurately taken
by the police, and he pleaded guilty to sexual assault. See id. He was sentenced to
two years’ imprisonment in September 1992. Id. Although acknowledging that he
helped drive the complainant to and from the house where the sexual assault
occurred, appellant contends that he did not sexually assault her. He claims that he
was on the telephone in the living room during the incident. See id.

publication) (“Harrison III”); Harrison v. State, No. 14-15-00833-CR, 2016 WL 3362477, at *1
(Tex. App.—Houston [14th Dist.] June 16, 2016, no pet.) (per curiam) (mem. op., not designated
for publication) (“Harrison IV”); Harrison v. State, No. 14-16-00995-CR, 2018 WL 2925687, at
*1 (Tex. App.—Houston [14th Dist.] June 12, 2018, no pet.) (per curiam) (mem. op., not
designated for publication) (“Harrison V”).

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In post-conviction DNA testing in 2012,2 the Crime Lab tested DNA
extracts from a swab of the complainant’s underwear and two vaginal swabs using
Short Tandem Repeat (STR) Polymerase Chain Reaction (PCR) 3 analysis. No
semen was detected on the underwear and one vaginal swab. Semen was detected
on the second vaginal swab, but the DNA from the semen did not belong to
appellant. The semen’s DNA instead matched Roderic Brooks, one of the men
convicted of the sexual assault. The Crime Lab also collected trace evidence from
complainant’s underwear by tape lift, including fibers, hair fragments that were
“unsuitable for microscopic comparison,” animal hairs, and a possible head hair
fragment. However, per the Crime Lab, “head hair comparisons cannot be
performed” because “more than five years have passed since the time of the
offense.”

After a hearing in which these results were admitted, the trial court entered
unfavorable findings for appellant. Appellant has since unsuccessfully appealed the
trial court’s unfavorable findings in Harrison III, 2014 WL 801302 at *1, and
petitioned for additional DNA testing in Harrison IV and Harrison V before
seeking dismissal of the latter two appeals.

2
We take judicial notice of the Crime Lab test results and the trial court’s Findings of
Fact after the 2012 DNA testing, from the Harrison III clerk’s record. An appellate court is
limited to the record that is before it on appeal and generally may take judicial notice only of (1)
facts that could have been properly judicially noticed by the trial judge or (2) facts that are
necessary to determine whether the appellate court has jurisdiction of the appeal. Tafel v. State,
536 S.W.3d 517, 523 (Tex. 2017) (per curiam). Both the Crime Lab test results and trial court’s
findings of fact fall within the first category.
3
In Skinner v. State, 665 S.W.3d 1, 12 n. 11 (Tex. Crim. App. 2022), the court explained
that PCR is a DNA amplification method that makes millions of copies of a specific sequence of
DNA in a matter of only a few hours. “‘Without the ability to make copies of DNA samples,
many forensic samples would be impossible to analyze’ due to being small or degraded, like
those often found at crime scenes.” Id. (quoting John M. Butler, Forensic DNA Typing: Biology,
Technology, and Genetics of STR Markers 63 (2d ed. 2005)). STR refers to sequences of DNA
that are repeated multiple times within DNA. Id. STRs are effective in identifying human
components of DNA material. Id.

3
In this appeal, appellant contests the trial court’s denial of his motion under
Chapter 64 of the Texas Code of Criminal Procedure for mitochondrial DNA
testing4 of hair fragments and denial of his request for appointed counsel. See Tex.
Code Crim. Proc. Ann. art. 64.03.

II. ADDITIONAL POST-CONVICTION DNA TESTING

Chapter 64 of the Code of Criminal Procedure governs post-conviction
forensic DNA testing of evidence. The trial court denied appellant’s motion for
such testing. In reviewing the trial court’s ruling on a defendant’s motion for post-
conviction DNA testing under Chapter 64, when the trial court does not enter
separate findings, the reviewing court implies the necessary findings to support the
ruling so long as they are reasonably supported by the record. Dunning v. State,
572 S.W.3d 685, 692 (Tex. Crim. App. 2019). We apply a bifurcated standard of
review, affording almost total deference to a trial court’s resolution of historical
facts and mixed questions that turn on credibility and demeanor, but we review de
novo questions of law, and mixed questions that do not turn on credibility and
demeanor. Id.

Under article 64.03(a)(2)(A), the convicted person must prove by a
preponderance of the evidence that he would not have been convicted if
exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc.
Ann. art. 64.03(a)(2)(A). This is a threshold issue. LaRue v. State, 518 S.W.3d 439,
445 (Tex. Crim. App. 2017).

The sexual assault occurred at the home of appellant’s cousins Ernest and
Lawrence Pickaree. Ernest Pickaree pleaded guilty to the sexual assault and
4
“Mitochondrial DNA . . . is separate from nuclear DNA and different from it in that
mitochondrial DNA comes solely from the mother and is therefore a clone of her mitochondrial
DNA rather than a blending of the nuclear DNA from both parents.” Wilson v. State, 185 S.W.3d
481, 490 n.13 (Tex. Crim. App. 2006) (Johnson, J., concurring).

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implicated appellant. Roderic Brooks, whose semen has now been confirmed as a
source of DNA on one of the vaginal swabs, pleaded guilty to the sexual assault
and also implicated appellant. In this case, mitochondrial DNA testing of the hair
fragments, at best, would show that one of the assailants who sexually assaulted
the complainant or who was present that night left his hair at the crime scene. See
id. at 449. Testing of the hair might confirm their involvement, but it would not
exonerate appellant. See Wilson v. State, 185 S.W.3d 481, 485 (Tex. Crim. App.
2006) (stating that “if newer, more discriminating DNA testing showed that
another perpetrator was involved, that finding would not exonerate appellant
because it would show nothing more than there was another party to the crime, at
best”). “In cases involving accomplices, a defendant can only meet his burden
under Article 64.03(a)(2)(A) if he can show that testing, if exculpatory, will
establish that he did not commit the crime as either a principal or a party.” Ramirez
v. State, 621 S.W.3d 711, 723 (Tex. Crim. App. 2021).

Appellant has not demonstrated that results obtained from mitochondrial
DNA testing of hair fragments will establish that he did not commit the offense as
either a principal or a party. See id. Before appellant’s conviction, the complainant
and two co-defendants identified him as an assailant in the sexual assault.
Appellant signed a written confession admitting the offense. Appellant includes his
affidavit and two other affidavits to cast doubt on the veracity of his and Ernest
Pickaree’s confessions and to contend that it was Lawrence Pickaree and Roderic
Brooks who raped the complainant. In making an article 64.03(a)(2)(A)
determination, courts do not consider such post-trial factual developments. Id.
Because the sexual assault was a multi-assailant crime, the presence of hairs, even
if belonging to someone other than appellant, does not exonerate him. See Ex parte
Gutierrez, 337 S.W.3d 883, 902 (Tex. Crim. App. 2011). Thus, we conclude that

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appellant has not met article 64.03(a)(2)(A)’s requirements, and the trial court
properly denied DNA testing. We overrule issue one.

III. APPOINTMENT OF COUNSEL

In his second issue, appellant argues that the trial court erred when it denied
appointment of counsel for appellant’s sixth motion for post-conviction DNA
testing. An indigent convicted person intending to file a motion for post-conviction
DNA testing currently has a limited right to appointed counsel. See Tex. Code
Crim. Proc. Ann. art. 64.01(c); Ex parte Gutierrez, 337 S.W.3d at 899. As
originally written in 2001, article 64.01(c) stated that a defendant was entitled to
the appointment of counsel merely upon requesting counsel and establishing
indigence. Lewis v. State, 191 S.W.3d 225, 227 (Tex. App.—San Antonio 2005,
pet. ref’d). Since the Legislature amended article 64.01(c), the convicted person
has the additional burden of establishing “reasonable grounds for a motion to be
filed.” Tex. Code Crim. Proc. Ann. art. 64.01(c); see Lewis, 191 S.W.3d at 227.
The trial court expressly stated that appellant has had multiple attorneys appointed
for DNA testing5 and “there are no reasonable grounds that exist for the filing of
Applicant’s current motion.” Because appointment of counsel involves a
discretionary decision, and is not a purely ministerial act, we review such a finding
under an abuse-of-discretion standard. In re Marshall, 577 S.W.3d 581, 583 (Tex.

5
We note that appellant was represented by appointed counsel in Harrison III, Harrison
IV, and Harrison V. In Harrison III and Harrison V, the appointed attorneys filed Anders briefs
on appeal, evaluating the records and demonstrating there were no arguable grounds to be
advanced on appeal. See Anders v. California, 386 U.S. 738 (1967). This court agreed in
Harrison III that appellant’s appeal was wholly frivolous and without merit. 2014 WL 801302 at
*1. In Harrison V, this court granted appellant’s motion to withdraw his notice of appeal after
briefs were filed. 2018 WL 2925687, at *1. In Harrison IV, appellant and his appointed attorney
jointly signed a motion to withdraw his notice of appeal before briefing, and this court dismissed
the appeal. 2016 WL 3362477, at *1.

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App.—Houston [14th Dist.] 2019, orig. proceeding).

Reasonable grounds for testing are not present unless the convicted person
presents “a valid or viable argument” that test results “could plausibly show that
[he] would not have been convicted.” Gutierrez, 337 S.W.3d at 891–92 (internal
quotation marks omitted). In other words, a convicted person’s failure to establish
the prescribed statutory requirements to obtain DNA testing in his Chapter 64
motion may frustrate his entitlement to appointment of counsel. See id. For the
reasons already discussed in issue one, appellant’s motion did not present a viable
argument that DNA test results from the hair fragments would have prevented his
conviction. This conclusion similarly frustrates his second issue. We conclude that
the trial court did not abuse its discretion in denying appointment of counsel. We
overrule appellant’s second issue.

IV. CONCLUSION

Having overruled both of appellant’s issues, we affirm the trial court’s order
denying appellant’s motion for post-conviction mitochondrial DNA testing.

/s/ Margaret "Meg" Poissant
Justice

Panel consists of Justices Bourliot, Hassan, and Poissant.
Do not publish — TEX. R. APP. P. 47.2(b).

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