source: Caselaw Access Project

author: HOLCOMB, J., JOHNSON, J.,

license: Public Domain

text:
    Jackie Barron WILSON, Appellant v. The STATE of Texas.
    No. AP-75062.
    Court of Criminal Appeals of Texas, En Banc.
    March 1, 2006.

      J. Gary Hart, Austin, for Appellant.
    John R. Rolater, Jr., Asst. District Atty., Dallas, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., MEYERS, KEASLER, HERVEY, and COCHRAN, JJ. join.

On January 21, 2006, appellant filed a motion for rehearing. We overrule appellant’s request for rehearing, withdraw our initial opinion, and issue this corrected opinion in its stead.

In 1989, appellant was convicted of capital murder and sentenced to death. On direct appeal, a majority of this Court reversed the judgment based on an error in jury selection. Wilson v. State, 863 S.W.2d 59, 60 (Tex.Crim.App.1993). The cause was remanded to the trial court, and in 1994, appellant was again tried and convicted of capital murder. Pursuant to the second jury’s answers to the special issues, appellant was again sentenced to death. On direct appeal from the second conviction and death sentence, we affirmed the judgment of the trial court, and the United States Supreme Court denied appellant’s writ of certiorari. Wilson v. State, 522 U.S. 829, 118 S.Ct.93, 139 L.Ed.2d 49 (U.S.Tex.1997), cert. denied, 540 U.S. 1186, 124 S.Ct. 1409, 158 L.Ed.2d 91 (2004). Both appellant’s state and federal writs of habeas corpus were denied. Ex parte Wilson, WR-40,438-01 (Tex.Crim.App.1999) (not designated for publication); Wilson v. Cockrell, 2003 WL 21766540 (2003), cert. denied sub nom., Wilson v. Dretke, 540 U.S. 1186, 124 S.Ct. 1409, 158 L.Ed.2d 91(2004). Appellant is before this Court now on direct appeal from the trial court’s denial of his request for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. We will affirm.

Our holding requires a thorough recitation of the facts. The victim, who we will refer to by her nickname Maggie, was a five-year-old girl. On the morning of November 30, 1988, Maggie’s body was found face-down on the side of a road in a secluded area of Grand Prairie. Her shorts had been pulled down, exposing her buttocks. It was immediately apparent that she had been run over by a car. A further examination revealed that she had been both vaginally and anally raped, strangled, and suffocated. There were tire marks on her body which reflected two distinct tire patterns. A pair of semen-stained panties were found near Maggie’s body.

Investigators discovered that Maggie, who lived in an apartment complex with her mother, brother, and a live-in baby sitter, had been abducted from her bedroom at night. The window in her bedroom had been broken from the outside. Several pieces of glass recovered from inside and outside Maggie’s bedroom had appellant’s fingerprints on them.

Several witnesses testified that they saw appellant driving a red spray-painted Mercury Cougar on the night of the murder, and in a statement he gave police, appellant admitted to driving the car that evening. The two types of tire tracks found on Maggie’s body were consistent with the two types of tires on the Cougar. Thirty-eight human hairs, which were found to be microscopically consistent with Maggie’s hair, were recovered from the undercarriage of the Cougar, and fibers mixed in with those hairs were consistent with the Cougar’s carpet fibers. Nineteen additional hairs were recovered from inside the Cougar, and they were found to be consistent with Maggie’s hair. A chest or pubic hair recovered from Maggie’s genitalia was consistent with a racial group that includes Hispanics; appellant is Hispanic.

Additional evidence in support of the State’s theory involved a similar crime committed by appellant the same evening that Maggie was murdered. Namely, an additional complainant from the same apartment complex testified that appellant broke into her apartment and sexually assaulted her as she slept on the couch. When she awoke, she ordered appellant to leave. The complainant testified that it appeared that appellant had entered through a window. He offered her drugs in exchange for sex; declining, she again ordered appellant to leave, which he did.

There was also testimony from several witnesses who saw appellant drive toward the apartment complex (instead of heading home in the other direction) just before midnight the evening of Maggie’s murder. These witnesses further testified that appellant had been drinking heavily and using cocaine before he departed. When investigators were given appellant’s name by another child living in the apartment complex, a police officer went to appellant’s residence to question him. Upon the officer’s arrival, appellant fled.

In sum, there was ample physical and circumstantial evidence tying appellant to the murder; he was placed at the scene of the murder; he confessed to driving the red spray-painted car that ran over Maggie’s body; and he committed a similar sex crime, using the same method (entering through a window), just before abducting Maggie.

Despite the overwhelming evidence connecting appellant to the kidnapping and murder of Maggie, appellant requested that the trial court order additional testing of certain pieces of evidence, including the hair evidence, the anal swab and smear, blood, and tissue samples. The trial court denied his request, finding that “the defendant has failed to meet the requirements of Chapter 64 for forensic DNA testing.”

Appellant appeals the trial court’s ruling to this Court and complains (1) that some of the State’s biological evidence, which it admits is still in its possession and has never been tested, would exonerate appellant, and (2) that had the more “sophisticated and discriminating” forms of DNA testing been available during appellant’s second trial, he would not have been convicted. Specifically, appellant avers that the 2003 amendments to Chapter 64 have “abrogated this Court’s more onerous construction of Article 64.03(a)(2)(A),” and if the testing were to show that “it was all the DNA of some other perpetrator, not Wilson, then it is at least more likely than not that Wilson would not have been convicted.” See Act of May 9, 2003, 78th Leg. R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16; Tex.Code CRim. PROC Ann. art. 64.03(a)(2)(A) (Vernon Supp.2005).

The State responds that appellant is not entitled to additional DNA testing because identity was not an issue in this case, and appellant would not be able to show that he would not have been convicted if the additional testing were performed. The parties agree that our review is de novo. See, e.g., Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). Applying a de novo standard of review, we conclude that appellant is not entitled to new testing under Chapter 64. Skinner v. State, 122 S.W.3d 808, 813 (Tex.Crim.App.2003).

To be entitled to post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure, appellant bears the burden of establishing, by a preponderance of the evidence, that he “would not have been convicted if exculpatory results had been obtained through DNA testing.” See Tex.Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp.2005); Smith v. State, 165 S.W.3d 361, 363-64 (Tex.Crim.App.2005). Appellant must also show that identity was or is an issue in the case. See Tex.Code CRIM. Proc. Ann. art. 64.03(a)(1)(A)(i).

The State argues that appellant is not entitled to the relief he seeks because identity is not and was not an issue in this case. This is a point well-taken because appellant has never challenged the issue of identity. In none of appellant’s various direct and post-conviction appeals, in neither of his trials, nor here, does appellant claim that the State was prosecuting the wrong man. See id. art. 64.03(a)(1)(B). Rather, he avers he is entitled to new testing or retesting of evidence because there may have been an additional man involved in the abduction, rape, and murder of Maggie. Even if there was another person who aided appellant and has successfully evaded prosecution after all these years, it would have no effect whatsoever on appellant’s conviction and sentence. See Tex. Pen.Code Ann. § 7.02(a)(2). In addition to the fingerprint evidence implicating appellant, there was ample evidence from a variety of sources showing that appellant had a history of abduction and sexual assault, that he was driving the car which ran over Maggie, that he was seen at the apartment complex shortly before Maggie was abducted, and he committed a sexual assault against another victim at the same apartment complex on the same evening. Even if we accept the premise that identity is an issue, the above-mentioned overwhelming evidence shows that the trial court did not err in denying relief. See id. art. 64.03(a)(1)(B) (2005); Skinner v. State, 122 S.W.3d at 813; see e.g., Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim.App.2002).

As noted, appellant’s conviction of capital murder was based on murder committed in the course of a kidnapping. See Tex. Pen.Code Ann. § 19.03(a)(2). Therefore, whether testing on the semen, hairs, or the anal swab would indicate that Maggie was raped by another person, presumably a party to the kidnapping, would be wholly irrelevant. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Tex. Pen.Code Ann. § 7.02(a)(2).

Similarly, appellant’s request to test the blood found in Maggie’s bedroom and on some of the glass recovered from inside and outside her bedroom, again, would not affect the result in this case. That is, 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. See Tex. Pen. Code Ann. § 7.02(a)(2); Whitaker v. State, 160 S.W.3d 5, 9 (Tex.Crim.App.2004). Appellant’s fingerprints were located on the panes of glass in a way that indicated he removed the glass from its frame (finger and thumb prints placed on opposite sides of the perimeter of the pane of glass). This evidence, coupled with the fact that Maggie’s babysitter testified that he had never allowed appellant into Maggie’s room, placed appellant at the scene of the abduction. Thus, further testing of the blood found in Maggie’s room would not be favorable to appellant. See Whitaker, 160 S.W.3d at 9.

Blood-typing tests were performed on some of the blood stains found in Maggie’s room and they matched Maggie’s blood-type. See id. Similarly, if DNA testing showed the remaining blood was not appellant’s or Maggie’s, but that of some other person, the fingerprint evidence independently established that appellant abducted Maggie from her bedroom. This evidence is sufficient to show that appellant could not have met his burden for DNA testing under the more relaxed standard of Chapter 64. See Act of May 9, 2003, 78th Leg. R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16; Tex.Code CRIM. PROC Ann. art. 64.03(a)(2)(A) (Vernon Supp.2005).

Also wholly without merit is appellant’s assertion that newer tests should be conducted on the 19 hairs found inside and 38 hairs found lodged outside the car appellant was seen driving the night of the murder. The initial tests, conducted near the time of the second trial, showed that all of the recovered hairs were consistent with Maggie’s hair. In addition to all the other evidence inculpating appellant, a newer more discriminating test on these hairs would not produce evidence that would exonerate appellant. In any event, if the tests showed that the hairs belonged to some other person, evidence still supported that appellant was at the scene of the abduction and he was driving the car that ran over Maggie. Kitchens v. State, 823 S.W.2d at 258.

In conclusion, even if we were to order that all the evidence be retested, and all the results were consistent with appellant’s theory (that the tests would show an additional perpetrator was involved in the crime), appellant could not meet his burden of establishing, by a preponderance of the evidence, that he would not have been convicted of murder in the course of kidnapping. Tex.Code CRIM. PROC. Ann. art. 64.03(a)(2)(A) (Vernon Supp.2005). We affirm the ruling of the trial court.

JOHNSON, J., filed a concurring opinion.

PRICE and WOMACK, JJ., dissent.

JOHNSON, J.,

filed a concurring opinion.

Numbers flummox many of us, and as a result, numerical evidence can become confusing and misleading. This is particularly true if the evidence that inserts numbers into the legal equation is new and marginally understood. We are now at that point with evaluation of DNA evidence. The experts who come to court to present DNA evidence frequently come up with probabilities of such great magnitude that they are patently unsupportable to those who understand numbers and very impressive to those who do not. The following discussion assumes that the only evidence linking the defendant to the offense is DNA.

The first probability mistake that experts make is to treat all variables as independent. A variable is independent if, when the numerical value of the variable changes, no other variables necessarily change also. In a rectangle, height and width are independent variables; changing the height does not necessarily change the width. A dependent variable is one that necessarily changes in response to a change in another variable. The area of a rectangle is the product of multiplying height times width and is a dependent variable; if the height or width changes, the area necessarily changes.

The probability of two independent variables occurring at the same time is the product of the probabilities for each: if each variable occurs one time in ten, the probability of both variables occurring at the same time is 1/10 x 1/10, or 1/100 = one in one hundred. Probabilities decrease rapidly with the number of variables. With only six independent variables that have individual probabilities of one in ten, the probability of all occurring at once is one in a million. The probability decreases even more rapidly for variables that occur less often than one in ten times; for variables that occur once in a hundred times, the probability of one in a million requires only three variables.

A problem arises when dependent variables are treated like independent ones. In a California case from 1964, The People v. Collins, an older woman returning from the grocery was accosted from behind and did not see her attacker, who took her purse. She did see a young woman running from the scene and described her as weighing about 145 pounds, wearing “something dark,” and having blonde hair that was lighter than Janet Collins’s hair was at the time of trial. A man who had been nearby reported seeing a young white woman with a blonde ponytail running from the direction of the robbery, but did not see the offense occur. He described the woman as slightly over 5 feet tall, of ordinary build, wearing a dark blonde ponytail and dark clothing. He also reported that the young woman got into a yellow or partly yellow car driven by a black man who had a beard and mous-tache.

The defendants, an interracial couple, were arrested and charged because they “sort of’ matched the physical descriptions, owned a car that was at least partly yellow, were newly married, jobless, and broke. They denied involvement and provided an alibi. At trial, the state presented a mathematics instructor from a state college as their expert witness on the probability that the defendants were guilty. The -witness refused to assign probabilities to the various factors chosen by the prosecutor, so the prosecutor proposed “probabilities” of his own; one in three young women were blonde, one in ten wore a ponytail, one in ten cars was at least partly yellow, one in ten black men had a beard, one in four men had a mous-tache, and one in a thousand couples was interracial. The prosecutor then multiplied his own “probabilities” together and calculated that the profile would match one in 12 million couples. • The Collinses were convicted of the robbery based on the claimed probability that no other couple in California matched the reported description of the perpetrators.

In reversing the conviction in 1968, the California Supreme Court noted that the evidence was presented “[without presenting any statistical evidence whatsoever in support of the probabilities for the factors selected.” Collins, 438 P.2d at 36 n9. The Court also noted that all of the selected factors were treated as independent and factually true and that there was no adjustment for dependent variables or the possibility of mistake. Id. at 39. Most men with beards also have moustaches, so a correction for the overlap was necessary. Id. at 39 nl5. The Supreme Court also noted that the witness had failed to consider other plausible possibilities, for example, the young woman was a light-skinned African-American with bleached hair.

Some of the bad guesses increased probability, others decreased it, but the expressed probability itself was not reliable. “Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in the search for truth, must not cast a spell over him.” Id. at 33. The Collins Court also noted that, even if one accepted the prosecutor’s guesses, appropriate calculations indicated that there was a substantial probability that more than one other couple matched the selected factors. Id. at 43.

Multiplying the probabilities of all variables together, without regard to dependence, leads to a probability that is too small, often greatly too small. For example, variable A has a probability of occurring one time in one thousand, and always occurs with variable B. B always occurs with A. A and B are dependent variables, and the probability that A and B will occur together is still one in one thousand, because they never occur separately. If the probabilities of a random match to A and B are improperly multiplied together, the probability of both A and B occurring together is 1/1000 x 1/1000 = 1/1,000,000, or one in a million, and is one thousand times too small. The numbers soon get out of hand. One expert testified that a given profile occurred one time in 2.578 sextillion (2.578 followed by 21 zeroes), a number larger than the number of known stars in the universe (estimated at one sextillion). The population of Earth is about 6.5 billion, so anything in the sextil-lion range is more than one trillion times larger than the population of Earth. It is no wonder that, faced with numbers too large to conceive, some juries simply dismiss DNA evidence as not helpful, not persuasive, or not credible. The other side of the coin is a jury that accepts any claim about probabilities “because it’s DNA.” They have all seen “CSI: Crime Scene Investigation” or “NCIS” and “know” that DNA is infallible.

The reality of the human genome is that some genes are recessive and are therefore dependent on other genes for expression. For example, blue eyes occur only if both parents pass on the gene for blue eyes. If one parent passes a gene for brown eyes, the probability is high that the child’s eyes will not be blue. Many genes are intertwined to some degree; blue eyes often accompany blonde hair, but some Irish have strikingly blue eyes and black or red hair. It is very difficult to determine the probability of a given characteristic because we do not have a map of how each gene affects every other gene. It may be that one in ten people have blue eyes and one in twenty is (really) blonde, but because we know that the probability of blue eyes increases if the person is blonde, simply multiplying 1/10 x 1/20 will not tell us the true probability of having both blue eyes and blonde hair; the calculated value will be too low. If you are Japanese, there is close to a one hundred percent probability that you will have dark hair and brown eyes. When the probability of a person of Japanese ancestry having both dark hair and brown eyes is calculated, we must take that into account. All of these characteristics are controlled by DNA, and the same rules that apply to any probability calculation also apply to calculating the probabilities of a DNA match; if areas A and B of each DNA sample match, but A and B always occur together, A and B must be treated as one area of matching, not two.

In this case, the claim at trial was that only 1 in 2,083 persons of Hispanic descent would match appellant’s DNA profile. How was that number calculated? We do not know. An even more basic question is: what makes one “Hispanic”? Appellant’s surname is Wilson, a name not ordinarily thought to be Hispanic. May we assume that appellant’s father was not Hispanic? Part Hispanic? Part African-American? Part Western European? Eastern European? Asian? Were the differing probabilities of a non-Hispanic gene pool taken into account in calculating probabilities? How are probabilities for racial groups calculated in general? How do we calculate reasonably accurate probabilities for people like that famous self-described “Ca-blinasian,” Tiger Woods? We do not know.

Secondly, a statement that the DNA profile of the defendant occurs in only one in one million members of a given racial group means just that: if the reference group is one million individuals, one person will match; if you have two million individuals in the reference group, two individuals will' match, and so on. Unfortunately, most people translate that statement, that only one person in a million matches the profile, to mean that there is one chance in a million that the defendant is not guilty. Statistically, however, a city with ten million members of the reference group will include ten individuals who match the profile, and thus, there is only a one in ten chance that the defendant is guilty.

In this case, the offense occurred in Dallas County. Assuming a county population of one million and an Hispanic population of thirty percent, 300,000 Hispanics live in Dallas County. DNA is very reliable as to gender, so if we assume equal occurrence of gender, there are 150,000 Hispanic males in Dallas County. Dividing 150,000 by 2083, we find that, statistically, 72 men in Dallas County fit the profile. But do we really know that the perpetrator lived in Dallas County? Dallas is part of the Metroplex, which has a population of more than 3 million, and we are a mobile society. In the Metroplex, there are 216 statistical men who fit the profile. Could he be visiting from Houston (216 men) or Chicago (360 men)? Assuming that Mexico City is close to 100% Hispanic, 5,281 men in that city alone match the profile. How many male residents of Mexico City (or Guadalajara, Ciu-dad Juarez, Acapulco, etc.) were in Dallas County at the time of the offense? Even if we restrict the possibilities to Dallas County, a stated probability that only one Hispanic in 2,083 matches this profile does not mean that there is one chance in 2,083 that he is not guilty; it means that the probability is one in 72 that he is guilty.

Finally, trial attorneys need to understand how to validate (or repudiate) DNA evidence. They must begin with the reported match. Prosecutors may leap from a lab report saying that the samples match to an immediate conclusion that the defendant is guilty, thus the origin of the term “prosecutor’s fallacy.” But is it really a match? How many areas of the DNA strands coincide? How big is the specified error range? Just as for fingerprints, the more areas that match, the more likely that this is truly a match. If there appears to be a match, advocates then need to discover how often the laboratory that did the DNA testing produces a false positive. Part of the problem for the State of California in the O.J. Simpson trial was the revelation that the state’s testing laboratory had a false positive rate of 1 in 200, that is, one match in 200 was not, in fact, a match, thus opening the door for the defense to argue that the sample really did not match Simpson’s DNA.

Once it is established by the state that the two samples do, in fact, match within an appropriate margin of error, the next question is whether the defendant is the source. The random probabilities that are routinely used are valid only for unrelated persons. The closer the relative, the greater the number of areas on the DNA strand that will match. Identical twins have identical DNA. Parents will share DNA similarities with their children, and siblings will have many commonalities. Double first cousins will also have many commonalities; first cousins will have fewer commonalities, yet still a significant number. The only living male in a given family has a high probability of being the source, but a family with only sons over several generations will present a greater challenge. If the state shows' that the defendant is the source, there is one more hurdle; can the defendant be placed at the crime scene in the appropriate time frame?

DNA is durable; it does not evaporate or dissipate, and the time at which it was deposited on a surface cannot be directly determined. If the DNA sample was retrieved from a place where the defendant lives, works, or visits frequently, it is probably not probative, as one would expect to find the defendant’s DNA in those places. Sex crimes aside, if the sample is from a place where the defendant should not have been, the DNA, by itself, can confirm only that he was there at some time and cannot, by itself, prove conclusively that he was there at the time of the crime. By the same token, DNA cannot prove that the defendant was not there at the time of the crime.

DNA analysis is a powerful tool in determining guilt or innocence, and usually there is other evidence that links the defendant to the offense, but we must remember that DNA analysis is performed by humans and is not foolproof, nor are the conclusions drawn from the analysis always correct. Only if all the prerequisites for reliability — true match, correct source, and presence at the crime scene in the applicable time frame — are satisfied can society have confidence that the DNA evidence is, in and of itself, strong enough to support a conviction.

I concur in the judgment of the Court.

      . Appellant was acquainted with the family, because he was a friend of the live-in babysitter. Evidence showed that appellant had visited Maggie's apartment before and, in at least one instance, appellant "exhibited undue interest in Maggie at a birthday party prior to the murder,” as noted by the State in its brief. Moreover, evidence was admitted showing that appellant was familiar with the apartment complex because he had resided there sometime before the murder. The live-in babysitter testified that he had never allowed appellant into the children’s bedrooms. The live-in babysitter was eliminated as a suspect based on hair, blood, and fingerprint samples he voluntarily submitted to investigators prior to trial.

      . The evidence at trial showed that there was one Nitto brand tire and three Goodyear brand Eagle GT tires on the Cougar. There were fifteen points of comparison between the Nitto tire and the tread print on Maggie’s leg. There were six points of comparison between the tread print on Maggie's back and the Goodyear tires.

      . Additional evidence was admitted at the punishment phase of trial showing that appellant had previously abducted and sexually assaulted a woman by drugging her drink while patronizing a bar in Lubbock.

      . At oral argument and in his brief on the merits, appellant argued that the legislative amendments to Chapter 64 would permit the additional testing he now requests, where before, under our holding in Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App.2002), he would not have been entitled to the tests. As we explained in Smith, the Legislature amended Chapter 64 in response to our holding in Kutzner and relaxed the standard to a preponderance of the evidence. Smith, 165 S.W.3d at 363-64; see Act of May 9, 2003, 78th Leg. R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16. But even when considering the undisputed facts of this case under the more relaxed standard, appellant could not have met his burden of proof. That is, the evidence does not preponderate in appellant’s favor that he would not have been convicted if the blood, hair, semen, or tissue samples produced exculpatory results. See Whitaker v. State, 160 S.W.3d 5, 9 (Tex.Crim.App.2004).

      . Citing to In re McBride, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (identity not at issue where prior DNA test inculpated McBride, even though not admitted into evidence); Hart v. State, 2004 WL 199271, at *3, 2004 Tex.App. Lexis 1006 at *9 (Tex.App.-San Antonio 2004, no pet.) (not designated for publication) (identity not at issue where defendant’s fingerprints at the crime scene); Eubanks v. State, 113 S.W.3d 562, 566 n. 1 (Tex.App.-Dallas 2003, no pet.) (noting that identity was not an issue at trial where victim was defendant’s daughter); Morris v. State, 110 S.W.3d 100, 103 (Tex.App.-Eastland 2003, pet. ref'd) (holding identity not at issue where victim knew defendant because defendant was victim's mother’s long-term boyfriend). The State also cites to cases where courts have held that post-conviction DNA testing is not obligatory where the appellant did not challenge the sufficiency of the evidence on appeal, as appellant chose not to do here. See Green v. State, 100 S.W.3d 344, 345 (Tex.App.-San Antonio 2002, no pet.) (holding identity not at issue where appellate challenge to sufficiency of the evidence directed to an element other than identity); McBride, 82 S.W.3d at 397 (noting same). The State further points out that applicant as much as conceded the issue of identity in his state application for habeas corpus relief in writing; “The forensic evidence circumstantially connected him with Maggie's death by showing he apparently handled the broken glass from her bedroom window, that it was he who anally raped her, and that she was run over by the car he was driving that night.”

      . It is important to note that the anal swab appellant wants re-tested had already been tested, and that result showed a DNA profile matching appellant's DNA profile — only 1 in 2083 Hispanics would match this profile. What is more, appellant has not explained how the newer more discerning DNA test would cast doubt on the reliability of the earlier test.

      . Moreover, it is simply commonsensical that the hairs recovered from the undercarriage of the Cougar belonged to Maggie, as tire-print evidence firmly established that she was run over by the Cougar. The same logical conclusion can be drawn about the tissue found underneath the car that appellant wants tested. Because it was firmly established that the Cougar ran over Maggie's body, it would be ludicrous to test the tissue sample evidence. That is, due to the other evidence firmly establishing appellant’s guilt, appellant cannot show that he would not have been convicted if the testing on the hair and tissue samples produced exculpatory results. See Tex.Code Crim. Proc. Ann. 64.03(a)(2)(A) (Vernon Supp. 2005).

      . In response to a motion for rehearing, the Court has withdrawn its original opinion and substituted a corrected opinion. This concurring opinion accompanied the original opinion of the Court and is reissued in order to accompany the corrected opinion.

      . In this context, a probability is the likelihood that the DNA of a randomly selected person will match the DNA of a known sample.

      .In a defined system, a variable is a characteristic that has a numerical value that changes.

      . 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33 (Cal.1968) (reversed and remanded for a new trial).

      .In 1964, the probability of a young woman having a ponytail was probably higher that one in ten, but even in California, the incidence of natural blondes was likely to be less than one in three. Except for taxis, yellow cars are uncommon; probably, many fewer that one in ten non-taxi cars were yellow. In 1964, the number of interracial couples was probably far fewer than one in a thousand.

      . He then performed the "prosecutor’s fallacy.” Post, infra.

      . Other possibilities include: the young woman wore a blonde wig; she was running, not because she ha d robbed the older woman, but because she was late; she and the driver were merely car-pooling and were not a couple; the perpetrators were not from California.

      . See, e.g. Ex parte Russeau, No. WR-61,389-01 (Tex.Crim.App. writ application pending) (trial court’s findings of fact and conclusions of law, p. 38) ("1 in 115.6 quintillion for Caucasians, 1 in 10.28 quintillion for blacks, and 1 in 1.578 sextillion for Hispanics.”); Benford v. State, 2005 WL 240611, 2005 Tex.App. LEXIS 840, No. 03-02-00686-CR (Tex.App.-Austin, delivered February 3, 2005, unpublished, pet ref d) ("1 in 8.77 trillion [in the Caucasian population], 1 in 7.46 trillion for African-Americans, and 1 in 4.52 trillion for Hispanics”).

      . http://imagine.gsfc.nasa.gov/docs/ask^as-tro/answers/ 970115.html. “We believe that there are on the order of 10 21 stars in our universe.”

      . Mr. Woods’s father has Caucasian, African-American, Asian, and First People ancestors. His mother is Thai.

      . "The attorney and social psychologist William Thompson and his student Edward Schumann seem to have coined the term 'prosecutor’s fallacy.’ ” Gerd Gigerenzer, Calculated Risks 154 (2002).

      . DNA analysis scans fragments in 13 areas of high variability. High probability of a true match is assumed if four to five areas match. See www.ornl.gov /sci/techresources/Hu-man_Genome/home.shtml, a site funded by the United States Department of Energy Office of Science. Given that only the individual whose DNA it is will match all 13 tested areas, using an explanation of the probability of a random match that is expressed in terms of how many areas match and the closeness of the matches instead of using statistics may be more persuasive to the finder of facts. Many people feel as Benjamin Disraeli did when he said, "There are three kinds of lies: lies, damn lies, and statistics.”

      . The form of the DNA molecule is a double helix, similar in structure to a loosely coiled ladder with two long, continuous "legs" and many "rungs.” Nuclear DNA has four nitrogenous bases, referred to A, C, G, and T. Each base matches with only one other base, but because the sequence is directional, the order of the bases matters: A + T and G + C are different from T + A and C + G. The bases are arranged in varying sequences from rung to rung and the sequencing order encodes genetic information. By way of simplistic explanation, in a laboratory analysis DNA strands are broken into fragments, which are separated by electrophoresis, placed on a nylon membrane, and x-rayed. The result is an autoradiogram, a series of bands that resemble the bars of a UPC, but are less well delineated. Because the bands are not sharply defined, a match may be found when the bands in two samples align within a stated margin of error. As the allowed margin of error becomes larger, the statistical reliability of the match becomes smaller. The nuclear DNA strands that are analyzed are "non-coding” sections, that is, nuclear DNA that has no known function in the production of protein. Non-coding nuclear DNA has less selection pressure than coding nuclear DNA and therefore shows higher variability among individuals. Higher variability makes it easier to exclude or include individuals. Mitochondrial DNA goes even further toward identifying individuals because it 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. One of its uses is to differentiate between person who have different mothers, such as paternal half siblings, or cousins, or fathers and sons. The Y chromosome, present only in males, is passed directly from father to son and may offer similar information for males.

      . A false positive is a test result that indicates that a factor is present, but in fact it is not. E.g., a blood test indicate that the person is HIV positive, but in fact the person is not infected.

      . Gerd Gigerenzer, Calculated Risks 167 (2002).


author: PRICE, J., WOMACK, J., HERYEY, J.,

text:
    Ex parte Carlos CARMONA.
    Nos. AP-75182-AP-75184.
    Court of Criminal Appeals of Texas.
    March 1, 2006.

      Jason Mills, Fort Worth, for Appellant.
    Katherine A. Drew, Asst. District Atty., Dallas, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

announced the judgment of the Court and delivered an opinion,

in which JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.

The applicant seeks relief through habe-as corpus from an adjudication of guilt that resulted in the revocation of deferred adjudication and a ten-year sentence of imprisonment in the Texas Department of Criminal Justice-Correctional Institutions Division. The applicant was adjudicated guilty based entirely upon perjured testimony. We grant the applicant relief because his community supervision was revoked without due process of law.

I. Factual and Procedural Background

The applicant was placed on deferred adjudication for ten years and fined $2000 for his guilty plea to sexually assaulting Amanda Leal, retaliating against Leal, and unlawful possession of a firearm by a felon. Days after the applicant was placed on deferred adjudication community supervision for these three crimes, the State filed a motion to adjudicate guilt in each case based upon Leal’s claim of a subsequent assault.

At the adjudication hearing, the State presented three witnesses. Leal testified that the applicant struck her in the face in a grocery store parking lot. Leal also stated that she had had no medical work done on her face and that she did not check into a hotel with the applicant on the same night as the alleged assault took place. Lawrence Battles testified that he witnessed the assault on Leal by the applicant and that he had never met Leal prior to the assault taking place. Finally, Linda Chacon, Leal’s cousin, stated that she saw Leal at the grocery store and witnessed her bloody appearance on the day of the assault.

As a result of the testimony of these three witnesses, the trial court adjudicated guilt on the original offenses and sentenced the applicant to ten years’ incarceration. The applicant filed a motion for new trial alleging that the revocation was based solely on perjured testimony. The trial court denied the motion because it did not include verified affidavits. On direct appeal, the applicant’s claim of ineffective assistance of counsel was overruled.

The applicant filed an application for writ of habeas corpus in each case, claiming that the alleged assault used to support the adjudication of guilt never took place. During the hearing on the applications, Leal admitted that she had perjured herself in retaliation for the abuse she had suffered in the past and because the applicant did not call her when he was released from jail. She testified that she had fabricated her report to the police and that she had lied during the adjudication hearing. Leal also stated that she had checked into a hotel with the applicant on the day of the claimed assault. Leal then testified that she had convinced her cousin, Linda Cha-con, to falsely testify that she saw Leal at the grocery store where the alleged assault took place.

Further negating the evidence offered by the State to adjudicate the applicant’s guilt, Leal admitted that, through her work as an exotic dancer, she had known Battles, the State’s witness who claimed to have seen the assault, well before the alleged assault took place. Battles supplied affidavits admitting that he had fabricated his testimony at Leal’s request, although he later invoked his constitutional right against self-incrimination and refused to testify. Finally, medical records revealed that the bruises and bandages on Leal’s face were actually the result of rhino-plasty, not an assault perpetrated by the applicant.

The trial court entered findings of fact in all three cases, listing the specific inconsistencies between Leal’s testimony at the adjudication hearing and the affidavits and testimony given in the habeas proceedings. It specifically found that Leal had committed perjury. The trial court recommended granting relief if this Court concludes that the applicant’s claim is cognizable.

We ordered the parties to brief the limited question of whether a claim that adjudication of guilt was entered based entirely on perjured testimony is cognizable. We hold that, under the limited circumstances •of this case, the applicant’s claim is cognizable and that he is entitled to relief.

II. Law and Analysis

A. Cognizability

Habeas corpus is reserved for those instances in which there is a jurisdictional defect in the trial court which renders the judgment void, or for denials of fundamental or constitutional rights. If the applicant’s claim fits within one of these categories, then his claim is cognizable in post-conviction habeas proceedings.

The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Probationers have an obvious interest in retaining their conditional liberty. The State also has an interest in ensuring that revocation proceedings are based on accurate findings of fact and the informed exercise of discretion, which avoid the unnecessary interruption of a successful effort at rehabilitation and provide for the safety of the community. In Morrissey v. Brewer, the United States Supreme Court held that due process applies to parole revocations. Commenting on the condition of one on parole, the Court noted:

Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked.

In Gagnon v. Scarpelli the Supreme Court held that the procedures outlined in Morrissey for parole revocation should also apply to probation proceedings.

To meet the requirements of due process, the final revocation of probation must be preceded by a hearing, where the probationer is entitled to written notice of the claimed violations of his probation, disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, a neutral hearing body, and a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation. As we said in Ex parte Hale, “the Constitution of our country has been interpreted to protect persons who are released [on community supervision], from reincarceration without due process of law.”

Accordingly, due process requires that reincarceration occur only after the disclosure of evidence against the defendant. Within this right to disclosure of evidence afforded by due process, we can infer the requirement that revocation may not occur when it is based solely on perjured testimony. Because habe-as review is appropriate for denials of fundamental or constitutional rights, the applicant’s claim that his community supervision was revoked solely on perjured evidence, and therefore without due process of law, is cognizable under the habe-as jurisdiction of this court.

The State argues, however, that the applicant’s claim may not be cognizable because Code of Criminal Procedure Article 42.12, section (5)(b) states that no appeal may be taken from the trial court’s determination to adjudicate guilt. This prohibition of an appeal from a decision to adjudicate guilt does not, however, prohibit a collateral attack on the determination to adjudicate guilt through habeas corpus because appellate proceedings are different from collateral, post-conviction proceedings.

Code of Criminal Procedure Article 3.01 states that, “All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specifically defined.” The Code does not specifically define either appeal or habeas corpus. In Black’s Law Dictionary, appeal is defined as “[a] proceeding undertaken to have a decision reconsidered by bringing it to a higher authority.” Habeas corpus, in the context of a challenge to a final felony conviction, is a collateral attack on the judgment. A collateral attack is “[a]n attack on a judgment entered in a different proceeding.” Appeals and ha-beas corpus are two different types of proceedings. If the legislature meant to foreclose habeas relief from adjudication proceedings, it could have said so explicitly, but it did not. We conclude that the prohibition on direct appeals in Article 42.12, section 5(b) is not a bar to habeas relief in the applicants case.

Having concluded that the applicant’s claim is cognizable in habeas proceedings, we will address the merits of his claim.

B. Violation of Due Process

Leal’s and Battles’s recantations are evidence that the applicant’s community supervision was revoked without due process of law. Further, the trial court has entered findings of fact and conclusions of law and has specifically found that Leal committed perjury. While this Court is not bound by the findings of the trial court in post-conviction habeas corpus proceedings, such findings are considered if supported by the record.

The witnesses against the applicant either have recanted their testimony or them bias and lies have been exposed. Further, the evidence of physical abuse, consisting of photos of Leal’s bruised and bloodied face, has been proven to be the result of a medical procedure rather than an attack by the applicant. The record supports the trial court’s findings, and we are convinced that the applicant’s community supervision was revoked without due process of law because it was revoked solely on the basis of perjured testimony. Accordingly, the applicant is entitled to relief.

The trial court’s judgment revoking the applicant’s community supervision is set aside and the Director of the Texas Department of Criminal Justice — Correctional Institutions Division is ordered to return applicant to the custody of Dallas County for further proceedings by the trial court.

WOMACK, J., filed a concurring opinion.

HERVEY, J., filed a dissenting opinion, in which KELLER, P.J. and KEASLER, J., joined.

MEYERS, J., did not participate.

WOMACK, J.,

filed a concurring opinion.

It seems to me there are three issues.

The first is, shall habeas corpus relief be granted from a judgment revoking community supervision when the judge of the convicting court has found from the testimony of recanting witnesses, and this Court agrees, that the defendant did not violate the conditions of his community supervision? I would hold that, if habeas corpus relief from a judgment of guilt beyond a reasonable doubt will be granted on the basis of recantations, as this court has held, then it must follow that relief from a community-supervision revocation will be granted.

Second, is habeas corpus relief on that basis available in the particular kind of community supervision called “deferred adjudication,” despite the statutory provision, “No appeal may be taken from this determination”? For the reasons given in the opinion of the Court, ante at 496, I agree that it is.

Finally, is the relief the Court gives in this case proper? I agree that it is.

HERYEY, J.,

filed a dissenting opinion in which KELLER, P.J., and KEASLER, J., joined.

I agree that Article 42.12, § 5(b), Tex. Code CRIM. PROC., does not suspend collateral attacks on revocation proceedings. Because the prosecution was unaware that all of the evidence it used to revoke applicant’s deferred adjudication “probation” was perjured, the requisite state action to establish a due process violation is called into question. See Sanders v. Sullivan, 863 F.2d 218, 222 (2nd Cir.1988) (discussing cases holding that due process violation requires “a showing of prosecutorial involvement in the perjury” to constitute the requisite state action necessary to a due process violation). It is, however, not very difficult to decide that a citizen of this State has a state-law right not to be convicted or have his probation revoked based on perjured testimony. And, just as the prosecution has a duty to correct perjured testimony at trial when it comes to its attention thus establishing the requisite state action in that circumstance, the courts of this State should have a similar duty when a conviction based on perjured testimony comes to their attention with their failure to correct it also supplying the requisite state action. In this case, I agree with the Court’s opinion to the extent that it decides that an uncorrected revocation of probation based solely on perjured testimony violates due process. See Sanders, 863 F.2d at 222-26; see also Ex parte Carmona, 185 S.W.3d 492, 496 (Tex.Cr.App. Nos AP-75, 182; 75,183; 75,-184, delivered this date) (deciding that applicant’s community supervision was revoked without due process of law “because it was revoked solely on the basis of perjured testimony”).

I, therefore, agree with the Court that applicant is entitled to relief. The Court’s judgment, however, does not grant the relief to which applicant is entitled. The Court’s judgment sets aside the trial court’s judgment revoking applicant’s probation and remands applicant to the custody of Dallas County for further proceedings. This judgment does not order applicant’s immediate release, and it arguably does not set aside applicant’s convictions. The Court’s judgment, therefore, may be ambiguous on whether the State, which agrees that applicant’s probation was revoked based solely on perjured testimony but disagrees that applicant is entitled to relief in this proceeding, may continue to incarcerate applicant on these convictions. I would decide that the Court s judgment should set aside applicant’s convictions, reinstate his deferred adjudication probation, and order his immediate release.

Because the Court’s judgment does not expressly provide these remedies, I respectfully dissent.

        . Carmona v. State, No. 05-02-00145-CR, 05-02-00146-CR, 05-02-00147, 2003 WL 22480917, 2003 Tex.App. LEXIS 9351 (Tex.App.-Dallas Nov.4, 2003, no pet.) (not designated for publication). The applicant alleged that counsel was ineffective for filing an inadequate motion for new trial.

      . Leal was later prosecuted for aggravated perjury.

      . Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex.Crim.App.1996).

      . Bearden v. Georgia, 461 U.S. 660, 666 & n. 7, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

      . Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . Ibid. (citations omitted). See also United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1086 (2d Cir.1971) ("It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.”); Murray v. Page, 429 F.2d 1359 (10th Cir.1970) (parole revoked after eight years; 15 years remaining on original term).

      . Gagnon, 411 U.S. at 782, 93 S.Ct. 1756.

      . Id. at 786, 93 S.Ct. 1756.

      . 117 S.W.3d 866, 871 (Tex.Crim.App.2003) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation revocation)).

      . Gagnon, 411 U.S. at 786, 93 S.Ct. 1756.

      . Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex.Crim.App.1996).

      . Black’s Law Dictionary 74 (Abridged 7th ed.2000).

      . Id. at 208.

      . Ibid.

      . This is not the first time that jurists have offered opinions on this point. Judge Over-street explained in his concurring opinion in Olowosuko v. State, in which this Court affirmed that Article 42.12, section 5(b) does not allow an appeal from a trial court’s determination to adjudicate guilt, “it would seem that a deferred adjudication probationer’s only avenue of recourse to complain of the adjudication is via Chapter Eleven of the Code of Criminal Procedure.” 826 S.W.2d 940, 942 (Tex.Crim.App.1992). Further, a court of appeals has commented on the availability of habeas to challenge an adjudication of guilt even though an appeal is statutorily prohibited. In Kendall v. State, the Second Court of Appeals noted that a remedy, if any, for error at an adjudication hearing is by way of a post-conviction writ of habeas corpus. 929 S.W.2d 509, 510 (Tex.App.-Fort Worth 1996, pet. ref’d).

        . Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.1997).

      . See Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App.1996).

      . See Code Crim. Proc. art 42.12, § 5(b).

      . See, e.g., Tex. Pen.Code, § 1.02(4) (an objective of penal code is "to safeguard conduct that is without guilt from condemnation as criminal”); Tex.Code Crim. Proc., Article 1.03(5) (an object of criminal procedure code is to "ensure a fair and impartial trial”); Jimenez v. State, 32 S.W.3d 233, 244 (Tex.Cr.App.2000) (McCormick, P.J., concurring) ("due process of law” ensures that a citizen receives whatever the constitution and state law — the "law of the land” — provide).

      . See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (conviction obtained through perjury, "known to be such by representatives of the State," violates due process, and the same result obtains when the State, although not soliciting perjury, allows it to go uncorrected when it appears); Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Cr.App.1983), cert. denied, 454 U.S. 919, 102 S.Ct. 422, 70 L.Ed.2d 231 (1981).


author: JOHNSON, J.,

text:
    Ex parte Sean Arash FOROOGHI, Applicant.
    No. WR-58447-03.
    Court of Criminal Appeals of Texas.
    March 1, 2006.
    Sean Arash Forooghi, pro se.
    Lynn Ellison, Districy Atty., Jourdan-ton, Matthew Paul, State’s Atty., Austin, for State.
   JOHNSON, J.,

filed a concurring statement,

in which COCHRAN, J., joined.

In his application for writ of habeas corpus, applicant claimed that he was not being credited with time spent in custody both while in SAFP and while waiting for an opening in SAFP. It is well settled that an inmate is not entitled to credit for time in custody if that time was a condition of probation. This Court remanded this writ to the trial court for findings of fact in regard to if either or both time periods pertaining to SAFP were a condition of probation.

In its findings on remand, the trial court stated that SAFP was a condition of applicant’s probation, thus he is not entitled to time credit for that period of time. However, the trial court recommended granting credit for time spent in custody while awaiting an opening in SAFP. From this, I conclude that the trial court did not intend that period of time to be a condition of probation.

In Ex parte Ybarra, 149 S.W.3d 147 (Tex.Crim.App.2004), we stated clearly that an inmate who is seeking pretrial time-credit must first request credit for the claimed time by filing a nunc pro tunc motion in the convicting court and, if denied, appeal the denial, via a petition for mandamus, to the appropriate court of appeals. We also said, but perhaps not so clearly and certainly not as often in subsequent orders, that “the trial court has the authority to correct the judgment to reflect the appropriate time credit by nunc pro tunc order and should do so.” Ybarra at 148.

Because of the tangled nature of the proceedings in this case, a nunc pro tunc order may or may not have been appropriate. I merely point out that such an order may resolve similar cases without resort to appellate writs.

I join the decision of the Court.


author: JAMES T. CAMPBELL, Justice.

text:
    Clarence D. BROWN, Appellant, v. LUBBOCK COUNTY COMM. COURT, et al., Appellees.
    No. 07-04-0265-CV.
    Court of Appeals of Texas, Amarillo, Panel D.
    Sept. 13, 2005.
    Opinion Overruling Rehearing Nov. 21, 2005.

      Clarence D. Brown, Snyder, pro se.
    John Charles Grace, Asst. Criminal Dist. Atty., Lubbock, Carol Gardner, Asst. Atty. General, Austin, for appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant, Clarence D. Brown, appeals the dismissal of his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm the dismissal.

Brown is an inmate confined in the Institutional Division of the Texas Department of Criminal Justice as a result of a conviction for sexual assault in 1997 or 1998. In February 2004 he brought suit against the Lubbock County Commissioners Court, the commissioners, the Lubbock County District Attorney and the judge of the 72nd District Court, Blair Cherry, alleging they deprived him of constitutional rights by creating and applying procedures which denied him the assistance of counsel prior to his indictment. He also alleged the district attorney engaged in malicious prosecution. Appellant sought recovery of $300,000.00 in actual damages, plus punitive damages from each defendant. He attached an affidavit of indigence and copy of his inmate trust account statement to his petition. An amended petition added 364th District Judge Bradley Underwood and Lubbock County Magistrate Judge David Hazlewood as defendants.

The Lubbock County defendants filed an answer including a plea to the jurisdiction asserting sovereign immunity and affirmative defenses including the failure to give notice of claim under the Texas Tort Claims Act, failure to comply with Chapter 14 of the Civil Practice and Remedies Code, and limitations. In a separate answer the district judge defendants asserted defenses of absolute immunity, limitations, and the failure to comply with Chapter 14 of the Civil Practice and Remedies Code. They also alleged the claims were frivolous and sought recovery of attorney’s fees and costs.

The district judge defendants filed a motion to dismiss pursuant to Chapter 14. The motion sought dismissal without prejudice on the basis appellant failed to file an affidavit or statement of previous suits (§ 14.004), the disposition of administrative grievance (§ 14.005), or certified copy of his inmate trust account (§ 14.006(f)). It sought dismissal with prejudice under section 14.003 on the basis the suit was frivolous or malicious, arguing the suit had no probability of success because judges have absolute immunity and the claims were barred by the two-year limitations applicable to actions under Title 42, Section 1983 of the United States Code.

The trial court dismissed the claims against all defendants, with prejudice, on April 14, 2004. The order recites appellant’s claims lack an arguable basis in law and were dismissed pursuant to section 14.003. It also dismissed for failure to comply with sections 14.004, 14.005, and 14.006(f). Appellant perfected appeal from that order and filed a motion for rehearing. The motion for rehearing detailed the authority on which appellant relies to support his position the defendants illegally denied him the timely assistance of counsel. In the motion appellant also argued the trial court’s dismissal for failure to comply with the procedural requirements of Chapter 14 should not have been with prejudice because any such defects can be cured. Appellant attached a declaration of previously filed suits to his motion for rehearing. That document listed ten suits, each of which were petitions for habeas corpus arising out of his sexual assault conviction. The trial court denied the motion by express order on May 11, 2004.

Appellant now presents five issues on appeal, asking (1) whether the trial court abused its discretion in dismissing his suit with prejudice under sections 14.004, 14.005, and 14.006(f) of the Civil Practice & Remedies Code, (2) whether his claims lack an arguable basis in law, (3) whether he was denied the assistance of counsel at a critical stage, (4) whether the policy and procedure used by the District Courts of Lubbock County violate Article V, Section 12(b) of the Texas Constitution and the U.S. Constitution, and (5) whether the defendants’ application of Articles 32.001 and 28.061 of the Code of Criminal Procedure violated his federal due process rights.

The district judge defendants respond with a brief arguing dismissal was proper under sections 14.005 and 14.006(f) because appellant failed to file affidavits that he exhausted administrative remedies and of his previous suits. They also argue the suit was properly dismissed as frivolous. The Lubbock County defendants’ brief adopts the argument of the district judge defendants, adding that dismissal was proper based on appellant’s failure to comply with section 14.004, requiring a separate affidavit listing previous suits.

We address appellant’s issues and supporting arguments in the order he presents them. Texas courts have consistently held the affidavit of previous filings required by section 14.004 is a procedural matter which can be cured by amendment. See, e.g., Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex.App.-Corpus Christi 2001, pet. denied); Hickman v. Adams, 35 S.W.3d 120, 125 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The record shows appellant did correct the defect by filing a declaration of his previous suits as an attachment to his motion for rehearing. We agree dismissal with prejudice was not proper under section 14.004.

Section 14.005 applies to suits arising out of a claim “subject to the grievance system established under Section 501.008 [of the] Government Code.” When applicable, it requires the inmate to provide the date the grievance was filed, the date of the written decision and a copy of that decision. Section 501.008 of the Government Code directs the Department of Criminal Justice to create a grievance system for inmates. The system is the exclusive administrative remedy for “a claim for relief against the department that arises while the inmate is housed in a facility operated by [or for] the department[.]” Tex. Gov’t Code Ann. § 501.008(a) (Vernon 2004). Appellant’s claims are not subject to the grievance system under Section 501.008 because they are not against the Department or its employees and did not arise during his confinement. Consequently, section 14.005 is inapplicable to appellant’s suit and it does not support the trial court’s dismissal of that suit.

On appeal the district judge defendants concede appellant had filed a certified copy of his inmate trust account statement as required by section 14.006(f). We agree and find the dismissal was not supported on that basis. We sustain appellant’s first issue. That holding does not require reversal of the trial court’s order unless no other basis supports the dismissal.

In his second issue appellant challenges dismissal of his suit as frivolous under section 14.003(a)(2). The statute sets forth factors a trial court may consider in determining whether a claim is frivolous. They include whether (1) the claim’s realistic chances of success are slight, (2) the claim has no arguable basis in law or in fact, (3) it is clear the party cannot prove facts supporting the claim, and (4) the claim is substantially similar to a previous claim because it arises from the same operative facts. Id. The trial court’s order of dismissal recited its finding the claims lack an arguable basis in law.

Appellant’s argument supporting his second and third issues focuses on the merits of his claim that the period between his arrest and indictment was a “critical stage” of the proceeding against him at which the right to counsel attached, and the failure to appoint counsel deprived him of a right secured by the constitution. He concludes this deprivation supports a claim under Title 42, Section 1983 of the United States Code.

Judges acting in their judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their jurisdiction. See Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex.2002). This immunity extends to actions that are done in error, maliciously, and even in excess of the judge’s authority. See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). It is overcome only for actions that are: (1) nonjudicial, that is, not taken in the judge’s official capacity; or (2) taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Appellant’s petition clearly alleges the judicial defendants were acting in their judicial capacities. It does not allege they acted in the complete absence of jurisdiction. Appellant did not address appellees’ claims of immunity in the trial court or his initial brief on appeal. In a reply brief, appellant argues judicial immunity does not apply to claims for declaratory relief. Such an exception would be inapplicable here because the only relief sought in appellant’s petition was recovery of money damages. The trial court did not abuse its discretion in finding the claims against district judges Blair Cherry and Bradley Underwood, and magistrate judge David Hazlewood lack an arguable basis in law and dismissing the claims against those defendants.

Prosecuting attorneys also enjoy immunity when performing in then-role as prosecutors. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Texas courts have followed federal courts and consistently held as a matter of law that absolute immunity extends to quasi-judicial officers, including prosecutors performing such typical prosecutorial functions as initiating criminal prosecution and presenting the State’s case. Oden v. Reader, 935 S.W.2d 470, 474-75 (Tex.App.Tyler 1996, no pet.). Even allegations a prosecutor’s decisions were the result of bribes are insufficient to destroy immunity. Clawson v. Wharton County, 941 S.W.2d 267, 271 (Tex.App.-Corpus Christi 1996, writ denied). The record supports a conclusion by the trial court that the Lubbock County District Attorney was acting in a quasi-judicial capacity and is immune from appellant’s claims. The trial court did not abuse its discretion in dismissing the claims against District Attorney William Sowder.

Individuals acting in a legislative capacity are also immune from liability for their legislative actions. In re Perry, 60 S.W.3d 857, 859 (Tex.2001). Legislative immunity applies to legislators at the federal, state, and local levels of government. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004), citing Bogan v. Scott-Harris, 523 U.S. 44, 53, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). Commissioners court duties include legislative, executive and judicial functions. Ector County v. Stringer, 843 S.W.2d 477, 478 (Tex.1992). The adoption of a policy by a commissioner’s court is legislative in nature because it reflects a discretionary, policy-making decision of general application. See In re Perry, 60 S.W.3d at 860. Appellant’s claims against the members of the commissioners court arise from their performance of legislative functions and are barred by those defendants’ legislative immunity. The trial court did not abuse its discretion in dismissing appellant’s claims against the members of the commissioners’ court.

To any extent appellant’s naming the Lubbock County Commissioner’s Court as a defendant implicates Lubbock County, we note that the county is protected by sovereign immunity as a subdivision of the state. Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003). Unless waived, sovereign ini-munity deprives a trial court of subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Appellant did not plead any waiver of sovereign immunity applicable to the Lubbock County Commissioners Court and dismissal of his claims against that defendant was proper.

We find the trial court did not err in dismissing appellant’s suit as frivolous pursuant to section 14.003 of the Texas Civil Practice & Remedies Code. We overrule his second issue. Appellant’s remaining issues seek, in effect, declarations that the policies and procedures used for appointment of counsel in criminal cases in Lubbock County deprived him of a constitutional right. Such determinations would not affect the outcome of this proceeding, and our addressing the issues would result merely in advisory opinions which we may not issue. See Valley Baptist Medical Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000). See also Tex.R.App. P. 47.1 (opinion must address those issues necessary to final disposition of the appeal). We affirm the trial court’s order.

ON MOTION FOR REHEARING

Appellant has presented a motion for rehearing challenging the holdings in our original opinion concerning his asserted claims for declaratory relief, and his claims against Lubbock County and its commissioners court. With these comments, we will overrule the motion for rehearing.

Appellant’s motion seeks rehearing of our determination that his claims against the judicial defendants were barred by the doctrine of absolute immunity. In our original opinion we noted that appellant had argued in a reply brief that judicial immunity would not bar his claims for declaratory relief. In response to that argument, we found that appellant’s pleadings did not seek declaratory relief. On rehearing, appellant concedes the prayer in his amended petition did not seek declaratory relief, but points out the paragraphs asserting claims against each defendant did. Even assuming, arguendo, the amended petition was sufficient to give fair notice of claims for declaratory relief, and assuming, arguendo, that a claim for declaratory relief only might not be barred by absolute judicial immunity, that would not alter our conclusion the trial court did not abuse its discretion in dismissing the claims against district judges Cherry and Underwood, and magistrate judge Hazle-wood, because they lack an arguable basis in law.

Neither appellant’s original petition nor his appellate brief identify the specific declaration he seeks. He appears to seek a declaration that each of the judges deprived him of his constitutional right to counsel, but does not indicate how such a declaration would settle any uncertainty or controversy. See Tex. Civ. Prac. & Rem.Code Ann. § 37.008 (Vernon 1997) (authorizing denial of relief when declaration would not resolve controversy). In a reply brief on rehearing, and in response to appellees’ contention his exclusive remedy is through a habeas corpus proceeding, appellant denies he is attempting to invalidate his conviction, but observes “should [he] decide to file a habeas [corpus] application, the [declarations] Will assist the habeas court in deciding whether [he] was denied the effective assistance of counsel.]”

The United States Supreme Court discussed the relationship between claims under section 1988 and habeas corpus in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The Court concluded:

[I]ih order to recover damages for ... harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is ■not cognizable under § 1983.

Id. at 486-87. In Young v. Dretke, 356 F.3d 616 (5th Cir.2004), on which appellant relies, the Fifth Circuit held that an appointed counsel’s failure to seek pre-indictment dismissal, on the same grounds appellant now asserts would have precluded his prosecution, established the denial of the right to counsel and entitlement to habeas corpus relief. Id. at 629.

Application of the holding in Young to the standard established in Heck compels the conclusion that appellant’s section 1983 claims are so related to his conviction that they may not be asserted before the granting of the writ of habeas corpus, or other post-conviction relief “invalidating” his conviction. See Heck, 512 U.S. at 487. Restated, he may not prosecute a claim under section 1983 to support a future habeas corpus petition, but must obtain relief by habeas corpus to assert a section 1983 claim. Therefore the trial court could have found his assertion of the 1983 claim against the judicial defendants without the prerequisite “invalidation” of his conviction has no arguable basis in law.

Appellant’s motion for rehearing also challenges the statement in our original opinion that to any extent Lubbock County is implicated by his suit naming the members of its commissioner’s court, the county is immune from suit as a subdivision of the state. He contends his petition properly can be read as asserting a section 1983 claim against Lubbock County, and that counties are not protected by state-law sovereign immunity from suits under section 1983. Appellant’s asserted claims against the commissioners similarly are based on the alleged denial of appellant’s right to counsel at what he contends is a critical stage of his prosecution. The trial court thus could have concluded those claims, like his claims against the judicial defendants, are not cognizable under section 1983 absent a grant of habeas corpus or similar relief to appellant. Heck, 512 U.S. at 486-87. Even were we to agree with his contentions on rehearing, we therefore could not agree the trial court’s dismissal of appellant’s claims reflects an abuse of discretion.

Appellant’s motion for rehearing is overruled.

      . The Lubbock County defendants include the Commissioners Court, its members Kenny Maines, James Kitten, Gilbert Flores and Patti Jones, and Lubbock County District Attorney William Sowder.

      . Tex. Civ. Prac. & Rem.Code Ann. Ch. 101 (Vernon 2005).

      . The record does not show whether the motion to dismiss was presented to the trial court before its ruling.

      . See Tex. Gov’t Code Ann. § 54.874 (Vernon 2005) (providing magistrate in Lubbock County has the same immunity as a district judge.)

      . See Mireles v. Waco, 502 U.S. 9, 10 n. 1, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

      . As our original opinion noted, the record indicates appellant has filed several petitions in state court for habeas corpus seeking relief from his sexual assault conviction. None have been acted on favorably. The record also reflects that his habeas corpus petition filed in federal court was dismissed with prejudice.

      . Appellant’s argument on rehearing refers to the commissioners court and Lubbock County interchangeably. Lubbock County offers authority indicating the commissioners court is not an entity capable of being sued separate from the county and contends appellant failed to name the county as a defendant. See Darby v. Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir.1991). Appellant’s petition named the members of the commissioners court, other than the county judge, in their individual and official capacities. A suit against a governmental official in his official capacity is a suit against the governmental entity. Will, 491 U.S. at 71; Ware v. Miller, 82 S.W.3d 795, 800 (Tex.App.-Amarillo 2002, pet. denied). We agree with appellant his suit asserted claims against the county.

      . Appellant cites, among other cases, Hewlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). See also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Disposition of appellant's motion for rehearing does not require us to assess the application of the holdings of those cases to Lubbock County.