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REQUESTS FOR DNA TESTING PRESENT ENORMOUS CHALLENGES
Right to Appointed Counsel Not Absolute: Courts Only Required to Appoint Counsel if Reasonable Grounds Exist for DNA Testing
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair>
Ruben Gutierrez was convicted of capital murder and sentenced to death for the September 5, 1998 robbery/murder of 85-year-old Escolastica Harrison in Brownsville. The elderly woman owned a mobile home park and the trailer in which she lived doubled as an office. Gutierrez was a friend of Harrison’s nephew. He and the nephew, with other neighbors, frequently gathered behind the Harrison trailer to drink and socialize. Through this relationship Gutierrez got to know a lot about how Harrison conducted her business affairs; specifically, that she did not trust banks and kept all of her money in her trailer/office. Gutierrez was one of the few people who knew Harrison kept large sums of money in the trailer.
According to court records, the 21-year-old Gutierrez concocted a plan to “rip-off” Harrison. He recruited two accomplices, Rene and Pedro Garcia, to help him carry out the robbery scheme. On September 5 Gutierrez and Rene Garcia entered the Harrison trailer. When they left with some $600,000.00 Harrison lay dead or dying in a pool of blood, having been stabbed numerous times with two screwdrivers as well as having been severely beaten. Who did what inside the trailer is subject to some dispute. What is virtually certain is that Pedro Garcia remained in a getaway vehicle nearby.
The ensuing police investigation developed information from Harrison’s nephew and four other witnesses that Gutierrez had been seen in the trailer park on the day Harrison was murdered. Three days after the Harrison murder the police went to Gutierrez’s home only to learn he was not there, but they were assured by his mother that she would bring him to the police station. The following day Gutierrez went to the police station and provided investigators with an alibi for the day of Harrison’s murder. He told police he and a friend drove around in the friend’s Corvette all that day, but after interviewing the friend, the police found the alibi did not stand up.
Over the next four days the police arrested Rene and Pedro Garcia who gave statements implicating Gutierrez in the Harrison murder. The police arrested Gutierrez who gave them a second statement. This time he told the police that although he planned the Harrison “rip off,” it was the Garcias who entered the Harrison trailer while he waited in the park. He said that when the Garcias came to pick him up, Rene Garcia had a screwdriver with a lot of blood on it and stated he had killed Harrison. The Garcias, according to Gutierrez, had taken a blue suitcase and a tackle box filled with Harrison’s money. Saying he was repulsed by the murder, Gutierrez told the police he told the Garcias he did not want any of the money and led the police on an unfruitful search for the blue suitcase where he said the Garcias had thrown it.
The following day Gutierrez gave the police a third statement. This time, he told the police that Pedro Garcia drove the truck and dropped him and Rene Garcia at Harrison’s trailer. He said the initial plan to lure Harrison away went awry when Rene Garcia entered the trailer, knocked out Harrison, and then repeatedly stabbed her to death with a screwdriver. The two men fled with Harrison’s money and were picked up by Pedro Garcia after which Pedro drove them down a road where Gutierrez filled the toolbox with money from the suitcase. He discarded the suitcase after which Pedro returned and picked up the other two accomplices.
The police recovered most of the money, including $50,000 Gutierrez had given to his wife’s cousin. The prosecution secured a capital verdict and a death sentence against Gutierrez based on the following evidence: 1) that he was either a party or a principal to the murder of Harrison during a robbery; 2) the medical examiner testified that two weapons had been used to kill Harrison; and 3) four witnesses placed Gutierrez at the trailer park on the day Harrison was murdered.
Following the denial of his direct appeal and the unsuccessful state and federal applications for post-conviction habeas corpus relief, Gutierrez filed a motion under Art. 64, Texas Code of Criminal Procedure, for “forensic DNA testing” and appointment of counsel. The condemned inmate sought to have the following evidence subjected to DNA testing:
- A blood sample taken from the victim, Escolastica Harrison;
- A shirt belonging to the victim’s nephew which contained apparent blood stains;
- Nail scrapings taken from the victim during autopsy;
- Blood samples collected from the nephew’s bathroom, from a raincoat located in our just outside his bathroom, and from the sofa in the victim’s trailer; and
- A single loose hair found around the third digit of the victim’s left hand found during the autopsy.
The basis of Gutierrez’s motion rested on the premise that the issue of who actually killed Harrison had not been resolved at his trial. The motion conceded that Gutierrez and the Garcias were involved in the robbery of Harrison but the evidence was never clear as to who actually killed her. While Chapter 64 does permit post-conviction forensic DNA testing, the statute does not create what the Texas Court of Criminal Appeals has called a “free-standing due process right” to such testing. The appeals court, in Ex Parte Ruben Gutierrez (May 4, 2011), held that Chapter 64 entails rules that “harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice …” A trial judge, under Chapter 64, is required to order DNA testing only if the judge’s find all of the below prerequisites:
- The evidence exists that by its nature permits DNA testing;
- The evidence was either (1) justifiably not previously subjected to DNA testing because DNA testing (A) was not available, or (B) was incapable of providing probative results, or (C) did not occur “through no fault of the convicted person, for reasons that are of such a nature that the interests of justice require DNA testing; or (2) subjected to previous DNA testing by techniques now superseded by more accurate techniques;
- That evidence is in a condition making DNA testing possible;
- The chain of custody of the evidence is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;
- Identity was or is an issue in the underlying criminal case;
- The convicted person has established by a preponderance of evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
- The convicted person has established by a preponderance of the evidence that the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
The appeals court at the outset emphasized that while a prisoner has a “limited right to appointed counsel” in a Chapter 64 proceeding, this right is not absolute and the trial judge’s decision to appoint counsel will be controlled by his/her finding “that reasonable grounds exist for the filing of a motion.” To find “reasonable grounds” the trial judge must determine that the prisoner has met all the Chapter 64 prerequisites. Only after the trial judge has made this initial determination is a hearing required on a Chapter 64 motion after which the court must find that had the DNA results been available at trial the prisoner “would not have been convicted.” Significantly, the appeals court emphasized that “exculpatory DNA testing results do not, by themselves, result in relief from a conviction or sentence. Chapter 64 is simply a procedural vehicle for obtaining certain evidence which might then be used in a state or federal habeas proceeding.”
Chapter 64, thus, is a narrow “procedural vehicle” through which a convicted prisoner can secure relief from a possible wrongful conviction. With respect to his request for appointment of counsel, Gutierrez argued in his Chapter 64 motion that “he was not present during, did not participate in, and did not know or anticipate the victim’s murder and is thus not guilty of capital murder.” The State opposed this specific allegation and the motion in general on the theory that any exculpatory results would only “muddy the waters” and would not produce any basis for habeas corpus relief. The State supported its theory with three premises: 1) Gutierrez’s own statement, which was presented at trial, stated he was in the Harrison trailer/office when she was killed and that he assisted in stealing her money; 2) other trial evidence demonstrated that Gutierrez and an accomplice entered the Harrison trailer/office with two different types of screwdrivers and that the victim was killed with two different screwdrivers; and 3) the statements of the Garcias, which were not introduced at trial, said Gutierrez was present in Harrison’s trailer/office and that he participated in both the robbery and murder.
Both the trial court and the court of criminal appeals adopted the State’s position, finding that Gutierrez had failed to present “reasonable grounds” to justify relief under Chapter 64. The appeals court pointed out that “[Chapter 64] does not define ‘reasonable grounds,’ but courts of appeals have developed some guiding principles. Though a convicted person need not prove entitlement (or a prima facie case of it) to DNA testing as a precondition for obtaining appointed counsel, whether ‘reasonable grounds’ exist for testing necessarily turns on what is required for testing. Basic requirements are that biological evidence exists, that evidence is in a condition that can be tested, that the identity of the perpetrator is or was an issue, and that this is the type of case in which DNA would make a difference. Courts have found that reasonable grounds for testing are not present if no biological evidence exists or if it has been destroyed, or if identity was not or is not an issue. Reasonable grounds are present when the facts stated in the request for counsel or otherwise known to the convicting court suggest that a ‘valid’ or ‘viable’ argument for testing can be made.”
The appeals court added that even if a trial court could assume that DNA testing would produce results that excluded the prisoner as the source of the incriminating evidence, this could indeed be considered “exculpatory” or “favorable” evidence. But the mere revelation of exculpatory and/or favorable evidence alone does not mean the prisoner would not have been convicted had this evidence been presented at trial. “A ‘favorable’ DNA test result,” according to the appeals court, “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’.”
Gutierrez could not squeeze through this narrow procedural opening. While the appeals court made a number of other factual and legal findings, the court summed up its position with the following observation: “ … this is not a case in which testing of biological evidence left by a lone assailant is sought. This case was tried under the law of parties, and the identity of the parties—[Gutierrez], Rene Garcia, and Pedro Garcia—was not an issue at trial, and is not an issue now. This combination, of (1) [Gutierrez’s] third statement, placing him inside Mrs. Hamilton’s home with a screwdriver in his hand, (2) Rene Garcia’s statement that places him inside Mrs. Hamilton’s home and stabbing her, and (3) Pedro Garcia’s statement that places him inside Mrs. Harrison’s home at the time of the murder, is highly probative of whether identity was or is an issue. The trial judge is the sole judge of the credibility of these three consistent statements, all of which clearly and unequivocally place [Gutierrez] inside Mrs. Hamilton’s home at the time of the murder. Therefore, we adopt this factual finding. Together with all the circumstantial evidence admitted at trial, this information supports the trial judge’s ultimate legal ruling that there are no ‘reasonable grounds’ for a motion to be filed under Chapter 64.”
The Gutierrez case is significant for another reason. Prior to trial, defense counsel filed a motion to inspect the evidence which was granted by the trial court. Defense counsel inspected the evidence and did not pursue a motion for “independent testing of the evidence” and/or for the appointment of an expert; and while the State was late in disclosing the actual evidence, defense counsel did not move for a continuance because he decided it would be pointless. Defense counsel elected to pursue a trial strategy through cross-examination of police witnesses that these law enforcement officials had “fell down on the job” because they did not DNA test biological and physical evidence found at the crime scene. The appeals court found this to be “sound trial strategy.”
While we stop short of saying that defense counsel’s trial strategy amounted to ineffective assistance, we cannot support the appeals court’s conclusion that it is always “sound trial strategy.” We can only say that once a defense attorney files a motion to inspect the evidence, which is granted by the trial court, the attorney has a responsibility to compel a prompt disclosure of that evidence by the State; and, if the inspection reveals biological or physical evidence which has not been DNA tested, defense counsel must consult openly with his client about requesting the appointment of an investigator to test the evidence because any incriminating evidence revealed through this defense testing could be accessed by the prosecution.
We suspect that defense counsel’s failure to move for independent inspection of the biological and physical evidence in the Gutierrez case was influenced by the three incriminating statements given by all the indicted parties in the case. There was obviously a greater chance that incriminating rather than exculpatory evidence would be revealed through independent testing.
Finally, the Gutierrez ruling is significant if for no other reason than it underscores the difficulties faced by prisoners seeking Chapter 64 forensic DNA testing. Such motions cannot be based on speculation or hunches. The threshold prerequisites which must be satisfied are enormous, imposing a heavy burden on the prisoner to show that absent the exculpatory evidence, he would not have been convicted. That’s a daunting burden. And Gutierrez failed to carry that burden.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
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John T. Floyd Law Firm
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Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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