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