COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-276-CR

MUQTASID QADIR APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Muqtasid Qadir, pro se, appeals from the trial court’s denial of 

his motion for forensic DNA testing. We will affirm.

This appeal finds its genesis in Qadir’s conviction for murdering his 

girlfriend. See Qadir v. State, No. 02-96-00123-CR, slip op. at 1–2 (Tex. App.—

Fort Worth, August 14, 1997, no pet.) (not designated for publication). The 

evidence showed that Qadir’s girlfriend, Barbara Johnson, was stabbed to death 

 

1See Tex. R. App. P. 47.4.
2

and found by her grandfather, Joe McLane, at his house, where she resided. 

Johnson had been repeatedly stabbed in her shoulders, head, neck, hands, and 

arms. McLane called the police, who arrived shortly thereafter and secured the 

scene. McLane looked through the house but did not discover anything missing. 

Fort Worth Police Officer G.T. Baskin was one of the first officers on the scene, 

and in his search of the premises, he discovered a trail of blood leading away 

from the house to the north. Other officers gathered evidence, such as blood 

samples and fingerprints, at the scene.

The day after the murder, Detective John Thornton questioned Qadir at his 

place of work, ostensibly because he had been dating Johnson. During the 

interview, Thornton became suspicious because Qadir’s hand was cut; Detective 

Thornton invited Qadir down to the station. Police procured a warrant for 

samples of Qadir’s blood, hair, and saliva and tests later revealed that the blood 

matched the blood type of some of the samples taken from different locations at 

the scene of the murder. Further DNA testing provided an even more conclusive 

match. A letter describing details of the crime that had not been released to the 

public was later received by the police. Qadir’s fingerprint was on the envelope. 

Additional evidence was elicited that Qadir had recently threatened Johnson 

several times.

Since his conviction, Qadir has filed several appeals to this court. In 1996, 

Qadir appealed his conviction directly to this court. Id. This court affirmed his 

conviction. Id. In 1999, Qadir appealed to this court attempting to reverse the 
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trial court’s denial of his motion to recuse the judge presiding over his postconviction habeas corpus petition. See Qadir v. State, No. 02-99-00517-CR, slip 

op. at 1 (Tex. App.—Fort Worth 2000, no pet.) (dismissing appeal for want of 

jurisdiction). In 2002, Qadir appealed to this court attempting to reverse an order 

denying his motion to recuse the same judge from presiding over his request for 

DNA testing. See Qadir v. State, No. 02-02-00077-CR, slip op. at 1–2 (Tex. 

App.—Fort Worth 2002, no pet.) (holding that we lacked jurisdiction to rule on 

defendant’s appeal because we have no power to review interlocutory orders and 

the trial court had not yet ruled on his DNA testing request). In 2009, Qadir filed 

a petition for mandamus in this court, asking us to compel the presiding judge to 

rule on a motion for DNA testing that he asserted had been pending in the trial 

court for seven years without a ruling. In re Qadir, No. 02-09-00029-CV, 2009 

WL 417293, at *1 (Tex. App.—Fort Worth Feb. 20, 2009, orig. proceeding) (mem.

op.). In that opinion, we noted that the trial court had informed us that Qadir’s 

case file had been closed for several years and that there was no pending motion 

for DNA testing. Id. Qadir has since filed a request for DNA testing in a motion 

he titled ―Second, or Successive Motion for DNA Testing In Accordance with the 

T.C.C.P., Article 64.‖ The trial court denied his request. This appeal followed.

In his first issue, Qadir argues that the trial court erred by denying his 

request to conduct post-conviction DNA testing on items he claims were 

available for testing but were never tested; namely, broken bloody glass jar 

fragments, a bloody kitchen table knife, and a bloody footprint from carpet found 
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at the crime scene. Qadir argues that if these items were tested, the results 

would exculpate him.

Under article 64.01, a convicted person may file a motion for forensic DNA 

testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. 

art. 64.01(a) (Vernon Supp. 2009). A motion under article 64.01 must be 

accompanied by an affidavit, sworn to by the convicted person, containing facts 

in support of the motion. Id. Furthermore, the court of criminal appeals has held 

that under this statutory scheme, any evidence not previously subjected to DNA 

testing may not be subjected to post-conviction DNA testing unless DNA testing 

was either completely unavailable at the time of trial or was available but not 

technologically capable of providing probative results. Routier v. State, 273 

S.W.3d 241, 245 (Tex. Crim. App. 2008). Whether Qadir may obtain postconviction testing on these alleged untested items thus depends upon whether 

he has shown that they were not previously subjected to DNA testing through no 

fault of his own and that the lack of previous testing was ―for reasons that are of a 

nature such that the interests of justice require DNA testing.‖ Id. at 246. 

Although Qadir claims that these items were not tested ―through no fault‖ of his 

own, Qadir states that these items were not tested because his attorney failed to 

conduct ―an independent DNA testing.‖ DNA testing was available at the time of 

trial to test the remaining items Qadir now complains of, and several items were 

in fact successfully tested by the State. Qadir does not dispute this. Therefore, 

the provisions of Article 64.01(b)(1)(A) do not apply to these items. We overrule 
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Qadir’s first issue. See Routier, 273 S.W.3d at 251–54 (holding that defendant 

was not entitled to post-conviction DNA testing on previously untested blood 

stains because DNA testing was available at the time of trial).

In his second issue, Qadir argues that newer technologies now exist that 

would provide ―a reasonable likelihood of results that are more accurate and 

probative than‖ the DNA tests that were run at the time of his trial on blood from 

the bathroom wall, sink and floor; the front door exterior; the front porch; an iron; 

and a sheet—all from the crime scene.

Under article 64.01(b)(2), if evidence was previously subjected to DNA 

testing, the convicted person must demonstrate in his motion that the evidence 

can be ―subjected to testing with newer testing techniques that provide a 

reasonable likelihood of results that are more accurate and probative than the 

results of the previous test‖ in order to be entitled to further testing. See Tex. 

Code Crim. Proc. Ann. art. 64.01(b)(2) (Vernon Supp. 2009); Dinkins v. State, 84 

S.W.3d 639, 642 (Tex. Crim. App. 2002). In this issue, Qadir acknowledges that 

DNA testing was previously performed on these items inculpating him in the 

murder. His argument seems to be that the biological material was never tested 

to determine whether the blood stains existed prior to the murder; thus, according 

to Qadir, the State failed to prove that his blood was not already present at the 

crime scene prior to the murder. Qadir further argues that newer techniques 

exist now that allow for the determination of how old the blood stains were. Even 

assuming Qadir had demonstrated that the evidence can be subjected to newer 
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testing techniques that provide a reasonable likelihood of results more accurate 

and probative than the previous results, Qadir undermines his own argument 

because he admits that the State’s expert testified at trial that tests existed to ―tell 

how old blood is‖ at the time of his trial but that she never performed these tests. 

Therefore, like in Qadir’s first issue, the provisions of Article 64.01(b)(1)(A) do not 

apply to these items he now raises in his second issue because by his own 

stance, he had the opportunity to test these items for a ―blood time frame 

analysis‖ but failed to do so. We overrule Qadir’s second issue. See Routier, 

273 S.W.3d at 251–54.

In his third issue, Qadir makes numerous complaints that amount to a 

challenge to the legal sufficiency of the evidence supporting his conviction for 

murder. We conclude that Qadir’s third issue is a collateral attack on the 

judgment of his murder conviction and that we have no jurisdiction to resolve the 

issue.

Although chapter 64 of the code of criminal procedure authorizes forensic 

DNA testing in cases in which the applicant meets the requirements enumerated 

in the statute, these amendments do not confer jurisdiction upon this court to 

entertain collateral attacks on the trial court's judgment of conviction or to review, 

under the guise of a DNA testing appeal, anything beyond the scope of those 

articles. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2009); see 

also Reger v. State, 222 S.W.3d 510, 512–13 (Tex. App.—Fort Worth 2007, pet. 

ref’d), cert. denied, 552 U.S. 1117 (2008) (reasoning that the jurisdiction afforded 
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us under chapter 64 does not extend to collateral attacks on the judgment of 

conviction or allow us to revisit matters that should have been addressed on 

direct appeal). We dismiss Qadir’s third issue.

Having overruled Qadir’s first two issues and dismissed his third, we affirm 

the trial court’s judgment.

BILL MEIER

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DAUPHINOT, J. dissents without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 27, 2010