Anthony Scott Brown v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00296-CR

ANTHONY SCOTT BROWN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 30,831-A-DNA, Honorable Dee Johnson, Presiding

April 28, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Proceeding pro se and in forma pauperis, Appellant, Anthony Scott Brown,

presents a sole issue maintaining the trial court abused its discretion in denying his motion

for DNA testing filed pursuant to chapter 64 of the Texas Code of Criminal Procedure. 1

We affirm.

1 As noted infra, abuse of discretion is not the standard for reviewing the denial of a motion for DNA

testing.
BACKGROUND

In August 2020, a DPS Trooper driving behind a pickup with “a bunch of stuff” in

the bed ran a check on the license plate. He discovered the pickup had been reported

stolen from Midland. The trooper stopped the pickup at a convenience store. Appellant

was the driver,2 and he was accompanied by a female passenger. He claimed he had

recently purchased the pickup and produced a handwritten bill of sale with a purchase

price of $1,000 dated two days after it had been reported stolen. He did not, however,

have title to the pickup. After the trooper confirmed the pickup was still reported stolen,

he arrested Appellant for unauthorized use of a motor vehicle, and the female passenger

was released. At the time of his arrest, Appellant possessed $2,500 in cash.

The pickup was impounded and per DPS policy, an inventory search was

conducted. The search revealed a small blue plastic container near the driver’s side door

handle with over eleven grams of methamphetamine inside. Drug paraphernalia was also

found scattered inside the pickup.3 Although Appellant was initially arrested for

unauthorized use of a motor vehicle, he was indicted for manufacture or delivery of

methamphetamine.

At trial, the trooper testified to the events leading to the discovery of the

methamphetamine and drug paraphernalia and Appellant’s subsequent arrest. A forensic

chemist confirmed the weight of the methamphetamine.

During the defense’s case-in-chief, the trooper was recalled. He conceded the

female passenger could have “planted” the blue container in the driver’s side armrest and

2 Testimony and documentary evidence showed Appellant has an extensive criminal history.

3 Some of the paraphernalia was found in a backpack which Appellant claimed was left behind by

the female passenger.
2
that one of the syringes could have belonged to her. He testified no usable fingerprints

were taken from the items found.

Appellant testified in his own defense and the evidence was later re-opened to

allow him to testify twice more to offer his version of events. He denied any knowledge,

ownership, possession, or control of the methamphetamine and drug paraphernalia. He

admitted using drugs in the past but placed the blame for the contraband found in the

pickup on his female passenger.

The jury rejected his claims of innocence and convicted him of manufacture or

delivery of methamphetamine in an amount of four grams or more but less than 200,

enhanced by two prior felony convictions.4 His punishment was assessed at confinement

for seventy-five years. This Court affirmed the conviction. See Brown v. State, No. 07-

22-00107-CR, 2023 Tex. App. LEXIS 1028 (Tex. App.—Amarillo Feb. 16, 2023, no pet.)

(mem. op., not designated for publication).

On April 9, 2024, Appellant filed a verified pro se motion for DNA testing. He

asserted forensic DNA material existed and requested testing to determine ownership of

the evidence. He maintained testing would establish a greater than fifty-one percent

chance he would not have been convicted as the evidence would be exculpatory in

nature. He alleged testing would show the female passenger owned the contraband

making identity of the actual perpetrator of the offense an issue in the case. Finally,

Appellant asserted his request for testing was not made to unreasonably delay execution

of his sentence or the administration of justice.

4 TEX. HEALTH & SAFETY CODE ANN. § 481.112(d); TEX. PENAL CODE ANN. § 12.42(d).

3
By its response to the motion, the State argued identity was not an issue in the

case. It maintained Appellant was seeking DNA testing solely to support his version of

events that he had no knowledge or possession of the contraband and not to establish

the identity of another. The State further argued Appellant failed to establish by a

preponderance of the evidence he would not have been convicted if exculpatory results

had been obtained through DNA testing.

On August 21, 2024, the trial court, without holding a hearing,5 denied the motion

and made the following findings:6

• Identity was not an issue in Movant’s conviction for possession of a
controlled substance with intent to deliver . . . ;

• Movant has failed to establish by a preponderance of the evidence that he
would not have been convicted even if exculpatory results had been
obtained through DNA testing; and

• Movant has failed to show reasonable grounds for the filing of this motion
so he is not entitled to appointed counsel.

STANDARD OF REVIEW
Appellate review of a trial court’s denial of a motion for post-conviction DNA testing

is reviewed under a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim.

App. 2002). We afford almost total deference to a trial court’s determination of issues of

5 Under the circumstances present here, the trial court was not required to hold a hearing. But see

TEX. CODE CRIM. PROC. ANN. art. 64.04 (requiring a hearing after testing for a trial court to find whether it
was reasonably probable inmate would not have been convicted).

6 Appellant complains of the trial court’s failure to make findings of fact and conclusions of law

despite his request and notice of past due findings. Although his request is not contained in the clerk’s
record, he did include a copy of the document in the appendix to his brief. The document is file-stamped
October 31, 2024, well outside the twenty-day deadline from the August 21 order for requesting findings
and conclusions. TEX. R. CIV. P. 296, 297. Thus, the trial court was not required to make any findings.
4
historical fact and application-of-law-to-fact issues that turn on credibility and demeanor

and review de novo other application-of-law-to-fact issues. Id.

APPLICABLE LAW

To obtain post-conviction DNA testing, a convicted person must establish all the

requirements of chapter 64. Swearingen v. State, 303 S.W.3d 728, 731 (Tex. Crim. App.

2010). Before a trial court may order forensic DNA testing under chapter 64, the evidence

must show identity was an issue in the case. TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1)(C). The convicted person must also show by a preponderance of the

evidence he would not have been convicted if exculpatory results had been obtained

through DNA testing and the request for DNA testing was not made to unreasonably delay

execution of a sentence or administration of justice. Id. at (a)(2)(A), (B). “A ‘favorable’

DNA test result must be the sort of evidence that would affirmatively cast doubt upon the

validity of the inmate’s conviction; otherwise, DNA testing would simply ‘muddy the

waters.’” Ex parte Gutierrez, 337 S.W.3d 883, 892 (Tex. Crim. App. 2011). If DNA testing

would not show by a preponderance of the evidence the inmate would not have been

convicted, then there is no reason for a court to order DNA testing. Prible v. State, 245

S.W.3d 466, 469–70 (Tex. Crim. App. 2008).

Whether identity is an issue in a case is determined by analyzing whether (1) the

offense is the type for which DNA results would indicate the identity of a culpable party

and (2) the material subject to DNA testing was collected in a manner and from a location

that would allow a conclusion that the source of the DNA was the true perpetrator.

Pegues v. State, 518 S.W.3d 529, 535 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Identity is not an issue in a case if DNA testing could not determine who committed the

5
offense or exculpate the person convicted. Prible, 245 S.W.3d at 470; Pegues, 518

S.W.3d at 535.

Whether the DNA of another would establish a greater than fifty percent chance

the defendant would not have been convicted depends on the circumstances of the case.

Hall v. State, 569 S.W.3d 646, 656 (Tex. Crim. App. 2019). The presence of another’s

DNA may not have any tendency to exonerate the convicted person of the offense. Id.

Even when another’s DNA may tend to be exonerating, the convicted person’s burden

will not be satisfied “if the record contains other substantial evidence of guilt independent

of that for which the movant seeks DNA testing.”7 Swearingen, 303 S.W.3d at 736. When

the presence of another’s DNA is so strongly exonerating, the convicted person’s burden

is satisfied despite the existence of other substantial inculpatory evidence. Esparza v.

State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009).

Appellant’s request for testing involved touch DNA. The Court of Criminal Appeals

has acknowledged the “special problems” posed with touch DNA—“epithelial cells are

ubiquitous on handled materials,” because “there is an uncertain connection between the

DNA profile identified from the epithelial cells and the person who deposited them,” and

because “touch DNA analysis cannot determine when an epithelial cell was deposited.”

Dunning v. State, 572 S.W.3d 685, 693 (Tex. Crim. App. 2019).

7 Items Appellant requested be tested included one syringe found in a cosmetic bag, a glass pipe

found in an eyeglass case, a hair clip, a sock containing paraphernalia, the handles of the backpack, and
another glass pipe.
6
ANALYSIS

Appellant maintains DNA testing will provide exculpatory results and expose the

true perpetrator of the crime.8 He challenges the trial court’s finding that identity was not

an issue in the case by asserting that confirmation of the female passenger’s DNA would

establish she possessed the contraband which led to his conviction. Just as he did during

trial, on appeal, he maintains his innocence.

Appellant’s insistence that testing certain items would have excluded him as the

perpetrator and shown they belonged to the female passenger is problematic. As the

Court in Dunning determined, “the significant possibility of [touch] DNA being deposited

by an innocent person reduces the probative value of any [touch] DNA test result.” Id. In

Dunning, although DNA testing excluded the appellant as a major contributor, the Court

nevertheless found he did not satisfy the requirements imposed under chapter 64. Id.

See Molish v. State, No. 07-23-00053-CR, 2023 Tex. App. LEXIS 5627, at *5 (Tex. App.—

Amarillo July 31, 2023, no pet.) (mem. op., not designated for publication) (citing Flores

v. State, 491 S.W.3d 6, 10 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (noting that

even if evidence implies another’s presence, it does not exclude convicted person from

having committed the offense or reasonably establish he would not have been

convicted)).

By his motion, Appellant did not establish identity was an issue in the case. His

arguments did not demonstrate DNA testing would have identified his female passenger

8 Appellant argues what he believes is insufficiency of the evidence to support his conviction. He
did not, however, raise a sufficiency challenge in his direct appeal, and the present appeal pertains only to
the denial of his motion for DNA testing. Chapter 64 may not be used to mount a collateral attack on a
conviction. Weems v. State, 550 S.W.3d 776, 781 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(recognizing issues related to the movant’s conviction were beyond the scope of chapter 64).
7
as the person who committed the offense and exclude him as the perpetrator. Although

the female passenger ruled out his exclusive possession of the place the contraband was

found, there was inculpatory evidence to support his conviction. He had $2,500 cash on

his person. Scales, baggies, syringes, and other paraphernalia were found in the

common areas of the pickup and not inside the backpack. As the driver of the pickup, he

was in close proximity to the door where the blue container which held methamphetamine

was found. The logical force of these factors connected Appellant to the contraband and

are indicia of knowing possession and intent to deliver. Mixon v. State, 481 S.W.3d 318,

323 (Tex. App.—Amarillo 2015, pet. ref’d).

Here, the presence of another’s DNA would not have been “strongly exonerating”

and there was substantial circumstantial evidence of Appellant’s knowing possession with

intent to deliver methamphetamine.9 Appellant failed to satisfy the requirements of article

64.03. We conclude the trial court did not err in denying Appellant’s motion for DNA

testing. His issue is overruled.

CONCLUSION

The trial court’s Order Denying Motion for DNA Testing is affirmed.

Alex Yarbrough
Justice

Do not publish.

9 Under chapter 64, a convicted person is entitled to appointed counsel only if the trial court finds

reasonable grounds for a motion to be filed. Id. at art. 64.01(c).
8