Texas Stamp


PD-1212-17 03/28/2018

“The Court of Appeals erred in failing to consider the conflict between the new test results and the results presented at trial, as well as the defensive evidence presented by appellant, when deciding whether the new test results cast doubt on the validity of the conviction.”

Asberry was convicted of murder for stabbing and killing Daugherty.  At trial, DNA test results of blood from inside a car Asberry drove with Daugherty as a passenger could not exclude either of them as contributors.  However, the expert testified that the DNA profile was of “low significance” because half of Texas’ population would be included as possible sources.  Asberry obtained Chapter 64, post-conviction DNA testing.  This time Asberry and Daugherty were excluded as contributors. After considering the entire record, the trial court found that Asberry had not established that he would not have been convicted had the new results been available at trial.

Asberry appealed. He argued that the State’s case was weak. Additionally, the new DNA test results “completely contradicted” the results offered at trial; therefore, there would be no physical evidence linking him or the car to Daugherty.  The “State was left with non-credible testimony by jailhouse informants, past instances of Asberry luring men to his vehicle and attempting to have sex with them, statements that Asberry knew he was a suspect, and an admission by Asberry that he was with Daugherty earlier in the day.”  The court of appeals rejected Asberry’s claim the new results “completely contradicted” the ones at trial because neither man had been proven to be a source.  The court then observed that there was substantially more evidence of guilt than Asberry suggested.  Therefore, the trial court did not err in making an unfavorable finding.

Asberry argues that the court of appeals misapplied the standard of review.  The “most glaring” error, he asserts, is that it failed to recognize that the old and new results are conflicting.  Even if the “odds were low,” it is important that the results could have been used to place Daugherty in the car, while the new ones could not. Asberry also contends that the court ignored the defensive evidence presented at trial, focusing instead on only evidence of guilt.  He points out that at trial, the State focused on the defensive evidence in arguing for the admission of extraneous offense evidence. Asberry concludes, there is a 51% (i.e., preponderance) chance that, without the physical evidence, the State would not have satisfied its burden.

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