Fain, Roger Eugene ( 2015 )

6'5-/ST
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
THE STATE OF TEXAS §
ORIGINAL
APPELLANT §
§
V. § NO.
§
ROGER EUGENE FAIN §
APPELLEE §
APPELLEE'S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF: THE!
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS IN CAUSE N0.03-T35B05B9iCR:-M:R
REVERSING THE DECISION TO DENY APPELLEE POST-CONVICTION FORENSIC DNA TESTING
IN CAUSE NUMBER 95-112-K277 IN THE 277TH JUDICIAL DISTRICT COURT OF WILLIAMSON
COUNTY, TEXAS; THE HONORABLE DOUG SHAVER, VISITING JUDGE.
§§§§
APPELLEE'S PETITION FOR DISCRETIONARY REVIEW RECEIVED IN
COURT OF CRIMINAL APPEALS
$§§§
MAY 22 2015
Prepared By: Abe! ACOSta, Clerk
Roger Eugene Fain
TDCJ-CID #700474
Petitioner/Appellee
William G. McConnell Unit
3001 South Emily Drive
Beeville, Texas 7B102
FILED IN
COURT OF CRIMINAL APPEALS
MAY 22 2015
Abel Acosta, Clerk
TABLE OF CONTENTS
PAGES
ITEMS
~ ' -.-
: •£..:
Table of Contents
Identity Sf"badges, Parties and Counsels. ii- iii
Index of Authorities iv
Petition For Discretionary Review 1
Statement Regarding Oral Arguments ' 1
Statement of Procedural History 1- 2 .
2
Questions For Review
Grounds For Relief 2
Ground For Relief No. 1
"DID THE COURT OF APPEALS ERR BY NOT RENDERING ITS DECISION IN
ACCORDANCE WITH THE SEPTEMBER 1ST 2011, AMENDMENTS TO THE CODE
OF CRIMINAL PROCEDURE, ART. 64.01?"
Ground For Relief No. 2
"DID THE COURT OF APPEALS ERR IN RENDERING ITS DECISION UTILIZING
THE INCORRECT STANDARD OF REVIEW?"
Ground For Relief No. 3
"DID THE COURT' OF APPEALS: PROPERLY DETERMINE THAT THERE EXISTS A
REASONABLE PROBABILITY THAT EXCULPATORY DNA TESTING OF THE EVIDENCE
FOR WHICH FAIN SEEKS TESTING WOULD PROVE "ACTUAL INNOCENCE"?
Ground For Relief No. 4
"DID THE COURT OF APPEALS ERR BY RENDERING AND BASING THEIR
DECISIONS ON ISSUES NOT PRESENTED FOR REVIEW AND/OR OUTSIDE' OF
THE RECORD, TO WIT: MAKING REFERENCE TO THE FIELD WHERE THE
VICTIM'S REMAINS WERE DISCOVERED?"
Argument & Authority
Argument & Authorities Ground For Relief No, 1 3-4
Argument & Authorities Ground For Relief No, 2 4-5
Argument & Authorities Ground For Relief No, 3 5-6-7-8-9
Argument & Authorities Ground For Relief No, 4 9-10
Prayer 10
Certificate Of Mailing 10
Verification 11
Appendix: MEMORANDUM OPINION, of the Courttof Appeals, Third District
of Texas, Austin, Cause No. 03-T3-005B9-CR, Delivered Mat 7th 2015 12
ROCHE BIOMEDICAL LABORTORIES, Certificate of Analysis
Delivered on January 20th 1995 12
IDENTITY OF JUDGES, PARTIES AND COUNSELS
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete
list of names of all interested parties follows:
Trial Court Judge: Hon. John R. Carter, Presiding Judge, 277th Judicial
District Court of Williamson County, Texas
DNA Prceedings Judge: Hon. Doug Shaver, 277th Judicial District Court,
Williamson County, Texas
Parties to the Judgement: Appellant, The State of Texas, and Appellee Roger
Eugene Fain
Appellee's counsel at trial: Hon. Mike Davis
1717 North IH 35
Round Rock, Texas7B664-2901
Counsels for the State at trial:
Hon. Ken Anderson, former District Attorney Williamson County, Texas
Hon. Michael Jergins, Assistant District Attorney, Williamson County, Texas
Hon. Jana McCoun,:>former Assist.DA Williamson County, Texas
Appellee's counsel on direct appeal:
Hon. David Schulman, Austin, Texas
Counsel for the State on direct appeal;
Hon. John Bradley, former Assist. DA Williamson County, Texas
Counsel for Appellee on original DNA appeal:
Hon. Russell D. Hunt, Jr.
707 Rock Street
Georgetown, Texas 7B626-5718
Appellee was ProSe on original direct appeal!
Counsel for Appelle on subsequent DNA Motion:
Hon. Keith Lauerman(trial court hearing)
107 N. Lampasas Str.
Round Rock, Texas 7B664
Counsel for Appellee on subsequent DNA direct appeal:
Hon. M.Ariel Payan
1012 Rion Grande
Austin, Texas 78701
Counsel for the State on original DNA Hearing;
Jana McCown, former Assist.DA Williamson County, Texas
li
Counsels for the State on subsequent DNA Hearing:
Hon.'Jana Duty-Hunsicker, District Attorney for Williamson County, Texas
Hon. Deni SL Garcia, Assist.DA for Williamson County, Texas
111
INDEX OF AUTHORITIES
ITEM PAGE
CASES
Ex Parte Kutzner, 75 S.W.3d 427(Tex.Crim.App. 2002) 5
Ex Parte Suhre',: 1B5 S.W.3d 898(Tex .Crim. App .2006) 2
Fain v. State, 986 S.W.2d 666(Tex.App. Austin 1998) 1
Fain v. State, 2014 WL 6B40282(Tex. App,;,Ft? -Worth 2014) 4
In re Fain, 83 S.W.3d B85(Tex.App. Austin 2002) 2-6-9
In re Morton, 326 S.W.3d 634(Tex.App. Austin 2010) 7-10
Leal v. State, 303 S.W.3d 292(Tex.Crim.App. 2009) 5
Smith v. State, 165 S.W.3d 361(Tex.Crim .App. 2005) 5
STATUTES
TEXiS2RUlLESr,0F: APPELLATE PROCEDURE §68.01 1
CIVIL PRACTICE & REMEDIES CODE §132.001 11
ARTICLE 64.01 2-3-4-5
ARTICLE 64.02 8
Article 64.035 7
IV
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
THE STATE OF TEXAS §
APPELLANT §
§
V. § NO.
§
ROGER EUGENE FAIN §
APPELLEE §
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Roger Eugene Fain,("Fain") , Appellee/Petitioner in the.above
styled and numbered cause, and pursuant to Tex.R.App.Proc. 68.01, et.seq.,
and for cause shown Petitions this Honorable Court to grant a review of the
opinion of the Court of Appeals, Third District of Texas, Austin, in Cause No.
03-13-00589-CR. In support of this Petition, Fain will present unto this
Honorable Court the following:
• STATEMENT REGARDING ORAL ARGUMENTS
Fain requests that oral arguments be granted due to this case involving
important questions of State Law to be decided, but due to Fain's present
situation, Fain regrettably waives oral arguments in this matter.
STATEMENT OF PROCEDURAL HISTORY
Fain was arrested, indicted and tried for the murder of Sandra Dumont and
was convicted on March 31st 1995, and was sentenced to life imprisonment by
Judge John R. Carter, Presiding Judge of the 277th Judicial District Court of
Williamson County, Texas. Fain appealled, and the judgment and sentence were
ultimately affirmed, FAIN V. STATE, 9B6 S.W.2d 666(Tex.App.-Austin 199B, pet.
ref'd).
On August 21st 2001, Fain filed with the trial court a Motion For Release
Of Evidence For DNA Testing, on November 29th & 30th of 2001 the trial court
heard arguments pertaining to the Motion, and the Motion was denied, and the
court issued it's Findings of Fact and Conclusions of Law.
Fain filed a timely Notice of Appeal, and presented the Court of Appeals
Third District of Texas with his Direct Appeal on the denial of the Motion for
Testing. The Court denied Fain's Appeal, affirmed the District Court's order,
Inlre Roger Eugene Fain, 83 S.W.3d BB5(Tex.App.-Austion 2002).
On May 9th 2012, Fain filed a subsequent request for DNA Testing, this
Motion was based upon the Legislative Amendment to the CCP Chapter 64, including
the Acts of 2011, 82nd Leg., ch.278 & 366, having abrogated the "No Fault"
requirement of Art.64.01, which required Fain to demonstrate that.it was not
through any fault of his own that biological material collected in this case
was not previously subjected to forensic DNA testing.
As of September 1st 2011, Art.64.01 does not contain any such "No Fault"
provision, SKINNER V. 5WITZER, 2011 U.S.Dist. LX 1320024(N.D.Tex.2011). As
Chapter 64 does not prohibit a second and/or successive motion for DNA Testing
EX PARTE 5UHRE, 185 S.W.3d B98,899(Tex.Crim.App.2006) .
QUESTIONS FOR REVIEW
1. DID THE COURT OF APPEALS ERR BY NOT RENDERING ITS DECISION IN
ACCORDANCE WITH THE SEPTEMBER 1ST 2011, AMENDMENTS TO THE CODE
OF CRIMINAL PROCEDURE, ART.64.01?
2. DID THE COURT OF APPEALS ERR IN RENDERING ITS DECISION UTILIZING
THE INCORRECT STANDARD OF REVIEW?
3. DID THE COURT OF APPEALS PROPERLY DETERMINE THAT THERE EXISTS A
REASONABLE PROBABILITY THAT EXCULAT0RY DNA TESTING OF THE EVIDENCE
FOR WHICH FAIN SEEKS TESTING WOULD PROVE "ACTUAL INNOCENCE"?
4. DID THE COURT OF APPEALS ERR BY RENDERING AND BASING THEIR DECISIONS
ON ISSUES NOT PRESENTED FOR REVIEW AND/OR OUTSIDE OF THE RECORD,
TO WIT: MAKING REFERENCE TO THE FIELD WHERE THE VICTIM'S REMAINS
WERE DISCOVERED?
ARGUMENT & AUTHORITY
GROUND FOR RELIEF NO. 1
DID THE COURT OF APPEALS ERR BY NOT RENDERING ITS DECISION IN
ACCORDANCE WITH THE SEPTEMBER 1st 2011, AMENDMENTS TO THE CODE
OF CRIMINAL PROCEDURE, ART. 64.01?
Fain asserts the answer is "Yes" and in doing so, the Court of Appeals
decision conflicted with the change in the Legislative Act of September 1st
2011, when the "No Fault" provision was removed.
The Court of Appeals states that Fain bore the responsibility for the
failure to previously request to have DNA tests conducted on the evidence he
is now requesting testing on.
Fain strongly disputes this claim based on what a "Defendant" is allowed
to contribute to his own defense prior to, during, and after his trial. Fain
believes that their is only four (4) things that a "Defendant" is allowed
total control over concerning his defense, and they are: 1) HIS PLEA; 2) TO
HAVE HIS TRIAL BY JUDGE OR JURY; 3) TO TESTIFY IN HIS DEFENSE;!4) TO APPEAL
THE CONVICTION IF NECESSARY.
Outside of these Four (4) things, the sole person responsible for the
trial strategy is the "Defendants" counsel, no matter what counsel claims or
wishes others to believe, the trial counsel is responsible for the defense of
his client, it is his knowledge, and understanding of the forum in which he
is supposedly familar with to defend the client, if then this isn't the case
then the "Defendant's/Clients) would be running the show.
Fain would like to ask a question of this Court, "How can a defendant,
during his trial, stop the proceedings, once he understands the importance of
a piece of evidence elicited during testimony, and request that the Court stop
the proceedings while this piece of evidence is tested??" Does not happen,
it is the sole responsiblity of the defense counsel to understand the import
ance of the evidence, and it his his decision, not the defendants to request
any further testing on the item inquestion.
In the instant case Fain's counsel did speak to him about DNA testing of
items that were available "prior" to trial, these items are the Sixteen (16)
that were tested at the Roche Lab,(See attached exhibit). Fain was not made
aware of any other material prior to or before trial.
Therefore, a convicted person could be granted post-conviction forensic
DNA testing by merely showing that the biological material in question had not
been previously tested, Art.64.01(b)(1).
In their Memorandun Opinion, the Court of Appeals panel recognized the
2011 change in Art.64.01(b) (1)(B), however, their position is that the 2011
Amendment did not apply due to the fact that the Court had already heard the
issues presented,(Memorandum Opinion pg.3). Fain asserts that by failing to
properly apply the Amended version of Art.64.01, the Court of Appeals have
departed from the accepted, and usual course of judicial proceedings as to call
for an exercise of this Court of Criminal Appeals' power of supervision, and
thus, this Petition should be granted.
In FAIN V. STATE, 2014 WL 6840282(Tex.App .-Ft. Worth 2D14)(pet.denied
April 15th 2015), counsel for the State asked that this Court of Criminal
Appeals establish a standard for subsequent requests for post-conviction
forensic DNA testing, it would seem the the Court of Criminal Appeals decision
to deny the States PDR in based on the fact when the Law changes, subsequent
Motions become necessary, since there is no restriction against a person to
argue "Actual Innocence'.' Law of Case Doctrine does not apply when the Law
has changed, or "actual innocence" is brought forth for review.
GROUND FOR RELIEF NO. 2
DID THE COURT OF APPEALS ERR IN RENDERING ITS DECISION UTILIZING
THE INCORRECT STANDARD OF REVIEW?
Fain asserts that the answer is "Yes" and in doing so, the Court of
4 -
Appeals' decision conflicts with the decisionof the Court of Criminal Appeals
on the same issue, and, have so far departed from the accepted and usual course
of judicial.: proceedings as to call for an exercise of the Court's supervision.
The application of the September 1st 2011 Amendments to Art.64.01, notwith
standing, the "reasonable probability" standard of Art .64.01(a)(2)(A) had been
abolished prior to the filing of Fain's DNA Motion and thus should not have
been applied to the review by the Court of Appeals.
Furthermore, this Court of Criminal Appeals has ruled that the 2003
Legislative Amendments to Chapter 64 clarifed that the standard of proof with
regard to getting a DNA test is the "preponderance of the evidence." By taking
the "reasonable probability" language out of the CCP Chapter 64, the intent
was to clarify that Applicant's did not have to meet two burdens. Overruling
the reasoning in EX PARTE KUTZNER, 75 S.W.3d 427,439(Tex.Crim.App.2002J the
Legislaure made clear it did not intent the Applicant's to have to prove actual
innocence, (a principle of habeas Law) in order to meet the burden to have DNA
testing accomplished.
Instead, the Applicant's must show that, had the results of the DNA test^
ing been available, there is at least a 51% chance the Applicant would not have
been convicted. LEAL V. STATE, 303 S.W.3d 292(Tex.Crim.App.2009); SMITH V.
STATE, 165 S.W.3d 361,363-64(Tex.Crim.App.2005).
In affirming the trial court's decision to deny Fain's DNA Motion, the
Court of Appeals has erroneously adopted the "reasonable probability" and
"actual innocene standard" for Fain's Motion, and in doing so, conflicts with
the decision of this Court of Criminal Appeals on the same issue, and, have so
far departed from the accepted and usual course of judicial proceedings.
GROUND i FOR RELIEF NO. 3
DID THE COURT OF APPEALS PROPERLY DETERMINE THAT THERE EXISTS A
REASONABLE PROBABILITY THAT EXCULAT0RY DNA TESTING OF THE EVIDENCE
FOR WHICH FAIN SEEKS TESTING WOULD PROVE "ACTUAL INNOCENCE"?
Fain asserts the answer is "No" and because of this fact Fain believes
that the Court of Appeals has become bias in it's treatment of Fain's request
for DNA Testing.
The Court of Appeals has always, automatically adopted the trial court's
opinion that the biological material in it's possession would not connect Fain
to the crime scene, thus it isn't necessary to test it. Furthermore, the
State has continually stated that the crime scene, an open field wouldn't pro
vide any exculpatory material, the Court of Appeals in their Opinion in 2002
stated;
"FURTHER, THE VICTIM'S BODY WAS IN A FIELD FOR OVER A MONTH BEFORE IT
WAS DISCOVERED AND HER CAR, WHICH WAS FOUND PARKED NEARBY, HAD BEEN
BURGLARIZED. UNDER THE'CIRCUMSTANCES, THE PRESENCE OF BIOLOGICAL
MATERIAL ON OR NEAR THE VICTIM'S BODY OR IN 'HER CAR THAT COULD NOT BE
MATCHED TO FAIN BY DNA TESTING WAS NOT EXCULPATORY." Inre FAIN @8B9
In the instant case, the Court of Appeals quoted the same finding of the
original opinion,(Memorandum Opinion pg.3-4). Yet it's the State's counsel
who stated that;
"...TESTING THE EVIDENCE W0ULDN"T SHOW ANYTHING. IT WOULDN'T SHOW THE
THE IDENTITY OF THE ACTUAL MURDERER, AND THAT' BECAUSE THE CRIME SCENE
IS SO CORRUPTED, TWO AND A HALF WEEKS AFTER HER BODY WAS DISCOVERED."
At no time during the August 13th 2013 hearing did the State produce, or
offer any witness testimony to the alleged "corruption" of the crime scene, at
no time has either Court of Appeals opinion offered any basis for their claim
that an open field would "corrupt" all other DNA material other than Fain's,
Inre FAIN, @B89; 2015 Opinion pgs.3-4.
Fain contents this, DNA testing does not prove actual innocence, all DNA
testing does is either show the material belongs to a person or doesn't belong
to a person.
State counsel wishes the Court(s) to believe that Fain's request is un
reasonable, that he hasn't present adequate argument to have testing on items
- 6
he wishes to have tested. In the August 25ptJ 2013 hearing,(CR. Vol .1 pg.10) the
State stated that; "HE'S NOT SEEKING RETESTING BECAUSE OF NEW TECHNOLOGY..."
Fain isn't seeking retesting of any biological testing, he is seeking testing
on items thati;were not tested prior to trial. State counsel states on record,
"IN FACT. AT THE TIME OF TRIAL, THE STATE TESTED ANYTHING AND EVERYTHING POSSIBLE
THAT WOULD — COULD SHOW THAT THE DEFENDANT_PETITIONER DID IT."(CR.Vol.1 pg.8)
Well if this is indeed the case, then the 16 items from the Roche Lab were
the only biological evidence admitted to trial, so the question here is, "Did
the State violate Brady? or did defense counsel fail to get all of the discovery
from the State."?
State counsel, the two opinions of the Court of Appeals all state that the
testing of the material Fain wishes to test would not be exculpatory to him, it
would not produce the "actual murderer" and Fain agrees, BUT if the State were
ordered to "UP LOAD THE MATERIAL, IdHICH THEY CLAIM IS OVER A HUNDRED ITEMS INTO
THE CODIS SYSTEMS, THEN THE ACTUAL MURDERER JUST MIGHT BE CAUGHT." Art.64.035.
The State counsel has stated on record that the State has tested over a
hundred items, yet has failed to up load these findings into the Federal and
State CODIS systems. This same District Attorney's Office, different admini
stration, same attitude denied Michael Morton,(In re Morton, 326 S.W.3d 634,
Tex.App.-Austin2010) for Six years bascially stating the same party line as is
the present adminstration.
Michael Morton finally got the Court of Appeals for the Third District of
Texas to "Order" Williamson County to test the bloody bandana that had what ap
peared to be blood, once the bandana was tested, it confirmed that some of the
blood was that of Morton's wife, Christine, and of an "unidentified donor" it
wasn't until the results of the testing was up loaded into the CODIS systems
that the name of Christines killer became apparent, and subsequently he was
- 7 -
tried and convicted for the murder of Christine Morton.
The State, as well as the Court of Appeals can continue to state unsup
ported speculation that if the DNA material in the States possession would not
be exculpating to Fain, without the benefit of fully testing and uploading the
evidence results into CODIS.
It is clear from the record in Fain's case and during the hearing of Aug
ust 22nd 2013, that the District Court order a hearing to be held, yet from
what the record indicates the State totally disregarded Art.64.02; Notice To
State; Response, when 64.02 is ordered, the State must follow the Article, in
this case it didn't happen, 64.02(a)(1)(2)(A)(B) .
The Williamson County District Attorney's Office to insure that Fain had
a "Fair & Impartial" hearing in front of a visiting Judge, the State offered to
Fain's counsel four pages of what counsel called inventory, very general, boxes
containing items that the Round Rock police department had in storage, what is
ironic with this is a good portion of the inventory list released to counsel
and which he presented to the Court without objection is evidence from a un-
adjudicated offense. Not only is the evidence tainted, there might be a major
"Chain of Custody" issue in the way it was handled and stored over the years.
It is clear that the Williamson County Dirstict Attorney's Office isn't
concerned with maintaining the proper protocol required by Article 64 of the
Texas Code of Criminal Procedure, it is a bit clearer to why the State is so
sure that probative results would not be had if the items in the State's pos
session were tested.
Furthermore, it is also very obvious that the Williamson County District
Attorney's Office does not wish to clear the Darlene Anderson case of June 1994
since a good deal of the "tested items" they claim to have obviously comes from
that crime and crime scene, and since Fain has always been their Number One
suspect, to offer up for uploading into CODIS could actually "solve" the
murder of Darlene Anderson and thus would dispute the 5tate's theory that Fain
was responsible for both murders. "IF" that'is actually the case, then the
Williamson County District Attorney's Office is guilty of obstruction of just
ice.
GROUND FOR RELIEF NO. 4
DID THE COURT OF APPEALS ERR BY RENDERING' AND BASING THEIR DECISIONS
ON ISSUES NOT PRESENTED FOR REVIEW AND/OR OUTSIDE OF THE RECORD, TO:
WIT: MAKING REFERENCE TO THE FIELD WHERE THE VICTIM'S REMAINS WERE
DISCOVERED?
Fain asserts the answer is "Yes" and in doing so the Court of Appeals in both
of their Opinions,(In re Fain §889; and Memorandum Opinion pgs.3-4). There has
not been any testimony, evidence presented, expert testimony or anything else
that the Court of Appeals could base their collective denials on based on the
field. The State's counsel stated that the field was "corrupt" but by this stat-
ment they are and have fabricated a record to support their allegations and theories
that no DNA material "outside" of Fain's own would be exculpatory and would not
prove Fain innocent.
As has been shown above, Fain does not have to show innocence with the
requested DNA findings, but .instead show that there was at least a 51% chance
of a different-'finding by the jury had the information from testing and uploading
of the present material been shown to a jury in the present sense.
Fain is sentenced to a life in prison for a crime that he did not commit
while the technology exists, if not to exonerate him outright, to at least pro
vide the 51% doubt threshold. But he is denied that opportunity, what greater
harm could one suffer??
Furthermore, the imprisonment of an innocent person does not begin to ac
count for the harm society suffers as a killer remains free. In that::vien, CCP
Chapter 64 now provides that DNA findings may be compared to know samples in
9 -
both the FBI and DPS databases seeking a match, therefore, not only does the
additional DNA testing Fain requests hold the possibility of freeing an innocent
person, but also has the potential of identifying the actual killer as has been
recently shown to be a viable possibility as in the much - publicized Morton
case from Williamson County.
PRAYER!
Fain now prays that this Honorable Court of Criminal Appeals will, for
cause that has been shown, grant this Petition, and thereby grant a review of
the opinion of the Court of Appeals, Third District of Texas, Austin, in Cause
No. 03-13-00589-CR.
Executed on this, the 1Bth day of May, 2015.
Respectfully Submitted,
Roger Eugene Fain, TDCJ-CID #700474
Appellee Pro Se
William G. McConnell Unit
3001 South Emily Drive
Beeville, Texas 78102
CERTIFICATE OF MAILING
I, Roger Eugene Fain, Appellee, certify that on this, May '1 Bth 2015, a
true and correct copy of the above and foregoing "Petition For Discretionary
Review" was deposited into the mail receptacle provided TDCJ-CID McConnell Unit
mail officials.
Executed on this, the 1Bth day of May, 2015.
0
Rogerr Eug
Eugene Fain
10 -
VERIFICATION
Per V.T.C.A., Civil Practice & Remedies Code §132.001, I, Roger Eugene
Fain, TDCJ-CID #700474, beingqincarcerated in the Texas Department of Criminal
Justice - Correctional Institutions Division at the William G. McConnell Unit,
3001 South Emily Drive, Bee County, Beeville, Texas, declare under penalty of
perjury that the above and foregoing statments are True and Correct to the best
of my knowledge.
Executed on this, the 18th day of May, 2015.
-zfl-fn—
Roger Exiqene
trig Fain
£Las*s
11
APPENDIX
MEMORANDUM OPINION
OF THE COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AT AUSTIN
CAUSE NO. 03-13-005B9-CR
DELIVERED ON MAY 7TH 2015
ROCHE BIOMEDICAL LABORATORIES
CERTIFICATE OF ANALYSIS
DELIVERED ON JANUARY 20TH 1995
12
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00589-CR
Roger Eugene Fain, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 95-112-K277, HONORABLE DOUG SHAVER, JUDGE PRESIDING
MEMORANDUM OPINION
In 1995,a jury found appellant Roger Eugene Fain guilty ofmurder. See Tex. Penal
Code § 19.02. After Fain pleaded true to two enhancement allegations, the trial court assessed
punishment at imprisonment for life. This Court affirmed Fain's conviction on appeal. SeeFain
v. State, 986 S.W.2d 666 (Tex. App.—Austin 1998, pet. refd). In 2001, Fain filed a motion
requesting forensic DNA testing of certain evidence collected in connection with the investigation
that led to the charges against him. See Tex. Code Crim. Proc. arts. 64.01-.05. The trial court
denied his motion, and we affirmed the trial court's ruling. See In re Fain, 83 S.W.3d 885
(Tex. App.—Austin 2002, no pet.). In 2012, Fain filed a second motion requesting forensic DNA
testing. The trial court again denied the motion, and in his sole point of error on appeal, Fain
challenges the trial court's ruling. See Tex. Code Crim. Proc. art. 64.05. We will affirm the trial
court's order denying Fain's motion.
DISCUSSION
Standard ofreview
Under Chapter 64 of the Texas Code of Criminal Procedure, "[a] convicted person
may submit to the convicting court a motion for forensic DNA testing of evidence containing
biological material." Id. art. 64.01 (a-1). A convicting court may order DNA testing only if (1) the
evidence still exists in a condition making DNA testing possible and has been maintained subject
to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced,
or altered in any material respect; (2) identity was or is an issue in the case; and (3) the convicted
person establishes by a preponderance of the evidence he would not have been convicted if
exculpatory results had been obtained through DNAtesting. Id. art. 64.03(a). In reviewing a trial
court's rulings under Chapter 64, we give almost total deference to the trial court's findings of
historical fact and application-of-law-to-fact issues that turn on witness credibility and demeanor.
Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). We consider de novo all other
application-of-law-to-fact questions. Id.
Analysis
In his sole point of error, Fain asserts that the trial court erred in denying his motion
because, according to Fain, he has satisfied all the statutory requirements for post-conviction DNA
testing. In response, the State argues that this Court already settled the relevant legal issues when
it affirmed the trial court's order denying Fain's first motionand that the "law of the case" doctrine
prevents us from reconsidering our decision. See State v. Swearingen, 424 S.W.3d 32, 36 (Tex.
Crim. App. 2014) (explaining that, under the "law of the case" doctrine, "an appellate court's
resolution ofquestions oflaw in a previous appeal are binding in subsequent appeals concerning the
same issue," and "when the facts and legal issues are virtually identical, they should be controlled
by an appellate court's previous resolution"). The State also argues that Fain has not met the
statutory requirements under Chapter 64.
We affirmed the denial of Fain's previous motion for two reasons. First, at the time,
Chapter 64 provided that a convicted person could request DNA testing of evidence that "was not
previouslysubjected to DNA testing ... through no fault of the convictedperson." Act of Apr. 3,
2001, 77th Leg., R.S., ch. 2, § 2,2001 Tex. Gen. Laws 2, 3 (amended 2011) (current version at Tex.
Code Crim. Proc. art. 64.01(b)). The trial court had made findings, supported by the record, that
Fainbore responsibility for the failure to conductDNAtests on the evidence he was movingto have
tested. In re Fain, 83 S.W.3d at 888-89. Because Fain was at fault, he failed to satisfy the statutory
requirements for testing.
Second, we concluded that the trial court correctly determined that Fain did not
meet his burden of establishing by a preponderance of the evidence "that a reasonable probability
exists that he would not have been prosecuted or convicted if exculpatory results had been
obtainedthrough DNA testing." Id. at 889 (citingTex. Code Crim. Proc. art. 64.03(a)(2)(A)). We
explained our conclusion as follows:
Fain's motion for testing did not contain any factual allegations that, if true, would
demonstrate a reasonable probability that additional DNA testing would prove
exculpatory. Further, the victim'sbody was in a field forovera month before it was
discovered and her car, which was found parked nearby, had been burglarized.
Underthe circumstances, the presenceof biologicalmaterialon or near the victim's
body or in her car that could not be matched to Fain by DNA testing was not
exculpatory. In fact, the jury at Fain's trial was told that DNA tests did not connect
him to the murder. The jury nevertheless convicted Fain on the basis of a web of
circumstantial evidence so strong that he did not contest the sufficiency of the
evidence on appeal.
Id. (footnote and citation omitted).
In 2011, the legislature amended article 64.01(b), removing the phrase, "through no
fault of the convicted person." Act of May 20, 2011, 82d Leg., R.S., ch. 366, § 1, 2011 Tex. Gen.
Laws 1016,1016. However, even assuming without deciding that the 2011 amendment undermines
the first basis for our previous decision, the amendments to Chapter 64 do not affect our second
reason for affirming the denial of Fain's first motion: Fain did not establish by a preponderance of
the evidence that exculpatory DNAevidence wouldhaveprevented his conviction.' Therefore, we
agree with the State that this Court has already ruled on an identical dispositive legal issue in this
case. As in his first motion, Fain is now requesting to have tested "biological material on or near
the victim's body or in her car." In reFain, 83 S.W.3d at 889. Because Fain has not shown that any
intervening factual or legal developments would call our previous decision into question, we will
not revisit our conclusion that Fain failed to meet the statutory requirements for forensic DNA
testing. See Swearingen, 424 S.W.3d at 36. Accordingly, we overrule Fain's sole point of error.
1 At the time, Chapter 64 provided that a court could order DNA testing only if "the
convicted person establishes by a preponderance of the evidence that... a reasonable probability
exists that the person would not have been prosecuted or convictedif exculpatory results had been
obtained through DNA testing." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.
Laws 2,3 (amended 2003) (current version at Tex. Code Crim. Proc. art. 64.03(a)(2)(A)). Thecurrent
versionnowreads, "the convictedpersonestablishes by a preponderance of the evidence that... the
person would not have been convicted if exculpatory results had been obtained through DNA
testing." Tex. Code Crim. Proc. art. 64.03(a)(2)(A). This amendment does not affect our analysis.
CONCLUSION
Having overruled Fain's sole point oferror, we affirm the trial court's order denying
his motion requesting forensic DNA testing.
Scott K. Field, Justice
Before Justices Puryear, Goodwin and Field
Affirmed
Filed: May 7, 2015
Do Not Publish
fab'b- 0S-M-&
"^* Roche Biomedical
Laboratories
A Member ofthe Roche Group Roche Biomedical Laboratories, Inc.
1912 Alexander Drive
Research Triangle Park, North Carolina 27709
Telephone: 919361-7700
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CERTIFICATE OF ANALYSIS
January 20,1995
District Attorney
Justice Center - Courts Building
405 South MLK-#1
Georgetown, TX 76626
ATTN: Mr. Ken Anderson
Agency #: L-234329,94-631-K277
Victim(s): Dumont, Sandra FSLab#: F9400216
Suspect(s): Fain, Roger
Evidence Submitted: via Federal Express Date Received: 9/22/94
(#0197971546)
Item 1. One (1) sample listed as PAP smear slide from Sandra Dumont/L-234329.
Item 2. Blood samples listed as Roger Fain.
Item 3. Samples listed as bloodstain from bathrobe with control.
Item 4. Samples listed as Select cigarette butts/living room ashtray.
Item 5. Sample listed as bloodstains from shorts, #1.
Item 6. Sample listed as bloodstains from shorts, #2.
Item 7. Sample listed as bloodstain from mattress.
Item 8. Samples listed as Marlboro cigarette butts/crime scene.
Item 9. Sample listed as Select cigarette butt/crime scene.
Item 10. Samples listed as Kool cigarette butts/crime scene.
Item 11. Sample listed as condom.
Item 12. Sample listed as tampon.
Item 13. Samples listed as Select cigarette butts/Ford truck.
Item 14. Sample listed as papertowels/Ford truck passengerseat.
Item 15. Sample listed as paper towels/Fordtruck passenger door.
Item 16. Samples listed as Select cigarettebutts/Toyota Corolla.
Page 1 of3
F9400216
Results:
Deoxyribonucleic acid (DNA) was processed from the above listed evidence and characterized
through the polymerase chain reaction (PCR) at the following genetic systems:
Alleles Detected
&m Sample BQ alpha LDJLR GYPA HBGjQ D7S8 GC HUMTHOl
3 Bathrobe 1.1,1.2 A,B A,B A*,B A,B A,B*,C 7,9
13 #1 Cigarette Butt 1.1,4 NA NA NA NA NA 6,10
("Select")
4 Cigarette Butt 1.1,4 A,B A,B A*,B A,B A*,B*,C 6,10
("Select")
16 Cigarette Butt 1.1, 1.2 A,B A A,B A,B BC 10,10
("Select")
1 S. Dumont 1.1,1.2 A,B A A,B A,B B,C 10,10
2 RFain 1.1,4 A,B A.B B A,B C 6,10
NA - No Activity
* - Intensity of alleles designated with a single asterisk are less intense than non designated
alleles.
Based upon the results listed above, the DNA profile obtained for the bathrobe (Item 3) is
different from the DNA profiles from Sandra Dumont (Item 1) and Roger Fain (Item 2);
therefore, both of the individuals are eliminated as possible sources of the genetic material
detected in this sample.
The DNA profile obtained for the "Select" cigarette butt listed as being recovered from the
Toyota Corolla (Item 16) is consistent with the DNA profile from Sandra Dumont (Item 1);
therefore, Sandra Dumont cannot be eliminated as a possible source of the genetic material
detected in this sample. The probability of randomly selecting an unrelated individual with a
DNA profile consistent to Items 1 and 16, at the genetic systems listed (excluding HUMTHOl),
is approximately:
1 in 3,002 for Caucasians
1 in 6,740 for Blacks
1 in 2,565 for Hispanics (Southeastern)
1 in 2,559 for Hispanics (Southwestern)
Page 2 of3
F9400216
The DNA profile obtained for the "Select" cigarette butt listed as being recovered from the living
room ashtray (Item 4) is consistent with a mixture of DNA profiles from more than one
individual. Roger Fain (Item 2) can not beeliminated as a possible contributor to the mixture of
genetic material detected in this sample. Also, the "A" allele detected at the GC genetic system
for this sample could not have been contributed by Sandra Dumont. No statistical evaluation can
be calculated forthis mixed sample.
The DNA profile obtained for the sample listed as "Select" cigarette butt from Ford truck (Item
13) is consistent with the DNA profile obtained from Roger Fain (Item 2) and different from
Sandra Dumont; therefore, Roger Fain can not be eliminated as a possible donor of the genetic
material in this sample. The probability of randomly selecting an unrelated individual with a
DNA profile consistent to Items 2 and 13 at the genetic systems DQ alpha and HUMTHOl is
approximately:
1 in 80 for Caucasians
1 in 429 for Blacks
1 in 143 for Hispanics (Southeastern)
1 in 116 for Hispanics (Southwestern)
Theresults have been reviewed independently bytheundersigned and are correct as reported.
Sworn to and subscribed
before me this A/**" day /i/l^«//>? C i
of S/(flA*A, 19 ^ Ma{ciaEisenberg,Ph.D. 77
atResearch Triangle Park, NC. Director, Forensic Identity
\A+*J &JC/lAS*>
Notary Public
State ofNorth Carolina
My commission expires (f//