THE COURT OF APPEALS OF TEXAS 

SECOND COURT OF APPEALS DISTRICT 

FORT WORTH 

ROGER DALE MEDFORD § NO. 02-15-00055-CR

 APPELLANT § 

 § 

 VS. § 

 § 

THE STATE OF TEXAS, § 

 APPELLEE § 

APPELLANT’S OPENING BRIEF

ORAL ARGUMENT IS REQUESTED 

Appeal from Cause Number 0584735D in Criminal District Court Number Three 

of Tarrant County, Texas, the Hon. Robb Catalano, presiding. 

 Scott Brown 

 State Bar No: 03127100 

 One Museum Place 

 3100 West 7th Street, Suite 420 

 Ft. Worth, Texas 76107 

 Phone: (817) 336-3600 

 Fax: (817) 336-3610 

 Email: sb@scottbrownlawyer.com 

 Attorney for Appellant 

ACCEPTED

02-15-00055-CR

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

9/21/2015 6:57:04 PM

DEBRA SPISAK

CLERK

 RECEIVED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 9/21/2015 6:57:04 PM DEBRA SPISAK Clerk
IDENTITY OF PARTIES AND COUNSEL

1. Mr. Roger Dale Medford, Appellant, Defendant in the trial court, TDC# 

00759936, Telford Unit, 3899 Hwy 98, New Boston, Texas 75570.

2. Hon. Robb Catalano, Presiding Judge in the trial court, Criminal District 

Court Number Three, Tarrant County, Texas, 401 West Belknap, Fort Worth, 

Texas 76196.

3. Hon. Steve Conder, Assistant Criminal District Attorney, Counsel for the 

State in the trial court, 401 West Belknap, Fort Worth, Texas 76196.

4. Hon. Scott Brown, Counsel for Appellant in the trial court and on appeal, 

3100 West 7th Street, Suite 420, Fort Worth, Texas 76107

6. Hon. Debra Windsor, Assistant Criminal District Attorney, Counsel for 

the State on appeal, 401 West Belknap, Fort Worth, Texas 76196.

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. i

TABLE OF CONTENTS ............................................................................... ii

INDEX OF AUTHORITIES ........................................................iii

STATEMENT OF THE CASE ...................................................................... 2

ISSUES PRESENTED ................................................................................... 3

STATEMENT OF FACTS ......................................................... 4

 POINT OF ERROR ONE...................................................... 10

 THE TRIAL COURT ERRED BY RULING THAT THE RESULTS 

OF THE POST-CONVICTION CHAPTER 64 DNA TESTING WERE 

NOT FAVORABLE FOR THE APPELLANT 

(DNA R. 6; CR. (DNA): 122)

SUMMARY OF THE ARGUMENT .......................................................... 10

ARGUMENT AND AUTHORITIES .......................................................... 10

PRAYER FOR RELIEF ............................................................................... 14

CERTIFICATE OF SERVICE .................................................................... 15

CERTIFICATE OF COMPLIANCE............................................. 15

ii
INDEX OF AUTHORITIES

Case Law

Baggett v. State,

110 S.W.3d 704 (Tex.App.-Houston [14th Dist.] 2003, 

pet. ref’d.) ......................................................................................... 10, 11, 13

Cate v. State,

326 S.W.3d 388 (Tex.App.-Amarillo 2010, pet. ref’d.) .............................. 13

Ex parte Gutierrez,

337 S.W.3d 883 (Tex.Crim.App. 2011) ...................................................... 11

Guzman v. State,

955 S.W.2d 55 (Tex.Crim.App. 2002) ........................................................ 10

Johnson v. State,

183 S.W.3d 515 (Tex.App.-Houston [14th Dist.] 2006, pet. dism.) ....... 11, 12

Perez v. State,

2011 WL 2683189 (Tex.App.-Houston [14th Dist.] 2011)

(not designated for publication) ................................................................... 13

Rivera v. State,

89 S.W.3d 55 (Tex.Crim.App. 1997) .......................................................... 10

Schlup v. Delo,

513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)........................ 11

Constitutional Provisions, Statutes, Codes, and Rules

TEX. CODE CRIM. PROC. ANN. art. 64.04...................................11

iii
Medford v. State

Appellant’s Opening Brief Page 1

THE COURT OF APPEALS OF TEXAS 

SECOND COURT OF APPEALS DISTRICT 

FORT WORTH

ROGER DALE MEDFORD § NO. 02-15-00055-CR

APPELLANT §

§

VS. §

§

THE STATE OF TEXAS, §

APPELLEE § 

APPELLANT’S OPENING BRIEF 

TO THE HONORABLE COURT OF APPEALS:

Appellant, through counsel, files this brief urging that the Court grant him

relief on appeal from the trial court’s order denying relief following postconviction DNA testing in cause number 0584735D which was obtained in the 

Criminal District Court Number Three in Tarrant County, Texas. References to 

the records will be as follows: “CR. (Trial)” for the one-volume Clerk's Record of 

the trial on the merits proceedings prepared by the Clerk followed by the pertinent 

page number(s); “CR. (DNA)” for the one-volume Clerk's Record of the postconviction DNA proceedings prepared by the Clerk followed by the pertinent page 

number(s); “Trial R.” for the seven-volume transcription of the court reporter's 

notes of the Appellant’s trial on the merits, with the Roman-numerated volume 

number followed by the pertinent page number(s). “DNA R.” for the one-volume 
Medford v. State

Appellant’s Opening Brief Page 2

transcription of the court reporter's notes of the post-conviction Chapter 64 

hearing, with the Roman-numerated volume number followed by the pertinent 

page number(s).

STATEMENT OF THE CASE

Appellant was charged with the offense of Injury to an Elderly Person –

Serious Bodily Injury. CR. (Trial): 3-4. On August 15, 1996, after a plea of “not 

guilty” to a jury, Appellant was convicted of the offense alleged. CR. (Trial): 31. 

Appellant was sentenced to incarceration in the penitentiary for a period of forty 

(40) years. CR. (Trial): 33. 

On March 26, 2010, Appellant filed his Motion for Forensic Testing of 

Evidence Containing Biological Material CR. (DNA): 10-37. On December 28, 

2010, the Trial Court ordered DNA testing of the following items of evidence: 

1. Two hair samples collected from [C.E.’s]1right hand; and

2. Stain from a Coors’ Light beer can “Kitchen Table. CR. (DNA): 59-60.

On March 23, 2011, the Garland Division of the Texas Department of Public 

Safety Crime Lab completed the court-ordered testing. CR. (DNA) 62-63.

On December 14, 2012, Appellant filed his Amended Supplemental Motion 

for Forensic Testing of Evidence Containing Biological Material CR. (DNA): 66-

 

1

Per the rules of this court, abbreviations are used for the names of the decedent and trial witnesses.
Medford v. State

Appellant’s Opening Brief Page 3

74. On December 14, 2012, the Trial Court ordered DNA testing of the following 

items of evidence: 

1. Three Stains from XJ-900 Walking Shoes

2. Five Stains From Blue Sweatpants; 

3. Hairs Retained from Blue Sweatpants;

4. Five Stains From Sweat Top; and 

5. Two Stains From White Handkerchief. CR. (DNA): 64-65.

On August 15, 2013, the Garland Division of the Texas Department of 

Public Safety Crime Lab completed the additional court-ordered testing. CR. 

(DNA) 114-118.

On the 13th day of February, 2015, a hearing was conducted regarding the 

results of the DNA testing. DNA R: 1-7. At the conclusion of that hearing, the 

trial court entered a “Nonfavorable Finding” on Appellant’s DNA motion. DNA 

R. 6; CR. (DNA): 122. Appellant timely filed his notice of Appeal from the trial 

court’s ruling and sentence. CR. (DNA): 124.

ISSUE PRESENTED

POINT OF ERROR ONE

THE TRIAL COURT ERRED BY RULING THAT THE RESULTS 

OF THE POST-CONVICTION CHAPTER 64 DNA TESTING WERE 

NOT FAVORABLE TO THE APPELLANT

(DNA R. 6; CR. (DNA): 122)
Medford v. State

Appellant’s Opening Brief Page 4

STATEMENT OF FACTS

Appellant was charged with the offense of Injury to an Elderly Person –

Serious Bodily Injury. CR. (Trial): 3-4. On August 15, 1996, after a plea of “not 

guilty” to a jury, Appellant was convicted of the offense alleged. CR. (Trial): 31. 

Appellant was sentenced to incarceration in the penitentiary for a period of forty 

(40) years. CR. (Trial): 33. 

RELEVANT TRIAL TESTIMONY

At the Appellant’s trial, several officers with the Lake Worth Police 

Department testified. Officer J.W. testified that he arrived at 4225 Ridgecrest at 

approximately 7:00 a.m. on May 27th, 1995. Trial R. V: 9. At that time, he made 

contact with C.E. (the alleged victim). Trial R. V: 10. C.E. was intoxicated but, 

otherwise, appeared normal. Trial R. V: 10-12. The Appellant, C.E.’s son, was 

not present in the house. Trial R. V: 11.

At approximately 9:30 a.m. that same morning, Officer J.W. returned to 

4225 Ridgecrest. Trial R. V: 13-14. Lake Worth Officer P.C. was also present. 

Trial R. V: 13-14. At that time, the Appellant and C.E. were present in the house. 

Trial R. V: 13-14. There did not appear to be any conflict between C.E. and 

Appellant at that time. Trial R. V: 15. C.E. was still intoxicated but did not appear 

to be injured in any manner. Trial R. V: 14-15.
Medford v. State

Appellant’s Opening Brief Page 5

At approximately 1:00 p.m. that same day, Officer J.W. saw the Appellant 

sitting in a car in a shopping center in Lake Worth. Trial R. V: 15-16. After the 

Appellant began driving the car, Officer J.W. stopped him for a traffic offense. 

Trial R. V: 17-18. Subsequently, Officer J.W. arrested the Appellant for public 

intoxication. Trial R. 21. 

At approximately 11:00 p.m. that same day, Officer J.W. went back to 4225 

Ridgecrest. Trial R. V: 24-25. At least two other officers were also present. Trial 

R. V: 25. At that time, Officer J.W. observed C.E. as she was being loaded into an 

ambulance. Trial R. V: 25-26. C.E. was covered in blood. Trial R. V: 26. 

Officer J.W. looked in the front door of the house and noticed a large amount of 

blood in the kitchen. Trial R. V: 29-30.

Officer K.S. was one of the officers who was present at 4225 Ridgecrest at 

approximately 11:00 p.m. on May 27th, 2005. Trial R. V: 42. Officer K.S. 

observed C.E. “laying on the ground, covered in blood.” Trial R. V: 43. Officer 

K.S. also observed blood “all over the house.” Trial R. V: 43. Officer K.S. saw 

the largest amount of blood in the kitchen. Trial R. V: 46. C.E. told Officer K.S. 

that she “fell down taking out the trash.” Trial R. V: 48. C.E. told a paramedic 

“Yeah, he hit me.” Trial R. V: 85.

Officer J.B. was another officer who was present at 4225 Ridgecrest at 

approximately 11:00 p.m. on May 27th, 2005. Trial R. V: 55-56. Officer J.B. 
Medford v. State

Appellant’s Opening Brief Page 6

observed “blood on all of the walls and in every one of the rooms except for two.” 

Trial R. V: 58. Officer J.B. observed what he believed to be swipe marks 

throughout the blood in the kitchen, where it had been “rubbed and smeared 

everywhere.” Trial R. V: 63.

Officer J.B. collected the following items of evidence: three beer cans that 

were on a table, one beer can that was on the floor, one beer can that was in the 

sink, C.E.’s clothes, a flashlight that was close to C.E. and had blood on it, and a 

blue towel that was lying on the kitchen floor and had blood on it. Trial R. V: 66.

Lake Worth Police Detective D.T. observed the Appellant in the Lake Worth 

jail on May 28th, 2008 at approximately 1:00 a.m. Trial R. VI: 126-127. Detective 

D.T. collected the following items from the Appellant: shirt, pants, tennis shoes, 

socks, and a handkerchief. Trial R. VI: 129. The detective also swabbed the 

Appellant’s hands. Trial R. VI: 129. The shirt and the pants appeared to have 

blood stains on them. Trial R. VI: 128-131. The clothes were sent to the Tarrant 

County Medical Examiner’s Office. Trial R. VI: 131-132.

C.P., of the Tarrant County Medical Examiner’s Office performed the 

forensic testing in Appellant’s case. Trial R. VI: 149-152. DNA testing was 

performed on the Appellant’s clothes. Trial R. VI: 151-152. One of the stains on 

the pants and one of the stains on the shirt matched the blood of C.E. Trial R. VI: 

152-153.
Medford v. State

Appellant’s Opening Brief Page 7

No testing was performed on C.E.’s clothing or the bloody towel. Trial R. 

VI: 155-156 . Presumptive testing indicated the presence of blood on the 

flashlight, the tennis shoes, and a swab from the Appellant’s right palm. Trial R. 

VI: 156-157. However, the quantity was insufficient for further testing. Trial R. 

VI: 156-157. A presumptive test indicated the presence of blood on one of the 

beer cans but no further testing was performed. Trial R. VI: 156-157. No testing 

was performed on the other beer cans. 

C.P. received a hair sample that was collected from C.E.’s right hand and 

thumb. Trial R. VI: 158. C.P. performed no testing on this hair sample. Trial R. 

VI: 158.

C.E. was taken to Harris Methodist Hospital and died some time later (the 

stipulated testimony indicates an autopsy was performed on C.E. on November 5th, 

1995). Trial R. V: 85; Trial R. VI: 181.

POST-CONVICTION DNA TESTING

On March 26, 2010, Appellant filed his Motion for Forensic Testing of 

Evidence Containing Biological Material CR. (DNA): 10-37. On December 28, 

2010, the Trial Court ordered DNA testing of the following items of evidence: 

1. Two hair samples collected from [C.E.’s]2right hand; and

2. Stain from a Coors’ Light beer can “Kitchen Table. CR. (DNA): 59-60.

 

2

Per the Rules of Appellate Procedure and the Local Rules of this Court, abbreviations are used for the names of the 

decedent and trial witnesses.
Medford v. State

Appellant’s Opening Brief Page 8

On March 23, 2011, the Garland Division of the Texas Department of Public 

Safety Crime Lab completed the court-ordered testing. CR. (DNA) 62-63. The 

results of this testing were as follows:

 The DNA profile from the beer can blood stain is consistent with 

C.E’s DNA profile;

 The partial DNA profiles from the three hairs from the right hand and 

thumb are consistent with the DNA profile of C.E.;

 The partial DNA profile from two of the hairs from the right hand and 

little finger is consistent with the DNA profile of C.E.; and,

 No interpretable DNA profile was obtained from another hair from the 

right hand and little finger. CR. (DNA): 62-63.

On December 14, 2012, Appellant filed his Amended Supplemental Motion 

for Forensic Testing of Evidence Containing Biological Material CR. (DNA): 66-

74. On December 14, 2012, the Trial Court ordered DNA testing of the following 

items of evidence: 

1. Three Stains from XJ-900 Walking Shoes;

2. Five Stains From Blue Sweatpants; 

3. Hairs Retained from Blue Sweatpants;

4. Five Stains From Sweat Top; and 

5. Two Stains From White Handkerchief. CR. (DNA): 64-65.
Medford v. State

Appellant’s Opening Brief Page 9

On August 15, 2013, the Garland Division of the Texas Department of 

Public Safety Crime Lab completed the additional court-ordered testing. CR. 

(DNA) 114-118. The results of this testing were as follows:

 The three blood stains from the XJ-900 walking shoes are consistent 

with the DNA profile of C.E.;

 Two of the bloodstains from the blue sweatpants are consistent with 

the DNA profile of C.E.;

 One of the bloodstains from the blue sweatpants is consistent with a 

mixture from C.E. and a second contributor. No comparison can be 

made regarding the second contributor due to the low level of data;

 One of the bloodstains from the blue sweatpants is consistent with a

mixture from C.E. and an unknown individual;

 No interpretable DNA profile was obtained from the fifth bloodstain 

from the blue sweatpants;

 No DNA profile was obtained from the hairs from the blue 

sweatpants;

 Two of the bloodstains from the sweat top were consistent with the 

DNA profile of C.E.;

 No DNA profile was obtained from two of the bloodstains from the 

sweat top;

 One of the bloodstains from the sweat top is consistent with a mixture 

from C.E. and a second contributor. No comparison can be made 

regarding the second contributor due to the low level of data;

 The two bloodstains from the handkerchief are consistent with the 

DNA profile of Appellant. CR. (DNA): 114-118. 
Medford v. State

Appellant’s Opening Brief Page 10

SUMMARY OF THE ARGUMENT

In Point of Error One, Appellant demonstrates that the trial court erred by 

holding that the results of post-conviction Chapter 64 DNA testing were “not 

favorable” for Appellant. Appellant shows that, had the results of the DNA testing 

been available during the Appellant’s trial, it is reasonably probable that Appellant 

would not have been convicted.

ARGUMENT AND AUTHORITIES

POINT OF ERROR ONE

THE TRIAL COURT ERRED BY RULING THAT THE RESULTS 

OF THE POST-CONVICTION CHAPTER 64 DNA TESTING WERE 

NOT FAVORABLE FOR THE APPELLANT 

(DNA R. 6; CR. (DNA): 122)

Standard of Review

The standard of review of a trial court's “not favorable” finding under article 

64.04 Tex. Code of Criminal Procedure is the familiar bifurcated Guzman standard 

of review. Baggett v. State, 110 S.W.3d 704, 705-06 (Tex.App.-Houston [14th 

Dist.] 2003, pet. ref'd) (stating standard for challenges to trial court's article 64.04 

findings). This standard requires a reviewing court to give almost total deference to 

the trial court's determination of historical fact issues that turn on credibility or 

demeanor, while reviewing other application-of-law-to-fact issues de novo. Rivera 

v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002) (citing Guzman v. State, 955 
Medford v. State

Appellant’s Opening Brief Page 11

S.W.2d 85, 89 (Tex.Crim.App. 1997)). “Although there may be subsidiary fact 

issues that are reviewed deferentially, the ultimate question of whether a 

reasonable probability exists that exculpatory DNA tests would prove innocence is 

an application of law to fact question that does not turn on credibility and 

demeanor and is therefore reviewed de novo.” Baggett, 110 S.W.3d at 706 (citing 

Rivera, 89 S.W.3d at 59).

Relevant Law

After examining the results of testing under Article 64.03, the convicting 

court must hold a hearing and make a finding as to whether, had the results been 

available during the trial of the offense, it is reasonably probable that the person 

would not have been convicted. Tex. Code Crim. Proc. Art 64.04. In order to 

demonstrate a “reasonable probability” that he would not have been convicted, as 

required under article 64.04, a Appellant must show a reasonable probability that 

exculpatory DNA tests would prove his innocence. Johnson v. State, 183 S.W.3d 

515, 520 (Tex.App. – Houston [14th Dist.][ 2006, pet. dism’d]. A reasonable 

probability of innocence exists when there is a probability sufficient to undermine 

confidence in the outcome. Ibid. See also Schlup v. Delo, 513 U.S. 298, 327, 115 

S.Ct. 851, 867, 130 L.Ed.2d 808 (1995) (to show innocence, an appellant must 

show “it is more likely than not that no reasonable juror” would have convicted 

appellant in light of the new evidence).
Medford v. State

Appellant’s Opening Brief Page 12

A “favorable” DNA test result must be the sort of evidence that would 

affirmatively cast doubt upon the validity of Appellant’s conviction. Ex parte 

Gutierrez, 337 S.W.3d 883, 892 (Tex.Crim.App.2011). 

Applying the Law to the Facts

Pursuant to Article 64.04 of the Texas Code of Criminal Procedure, the 

Appellant is entitled to a finding that “had the results been available during the trial 

of the offense, it is reasonably probable that [he] would not have been convicted.” 

The DNA testing in the Appellant’s case should not be reviewed in a vacuum; it 

should be reviewed in conjunction with the trial testimony and the testimony that 

was received at the post-testing hearings. (Johnson v. State, 183 S.W.3d 515, 520 

(Tex.App. – Houston [14th Dist.] 2006, pet. dism’d.).

Appellant’s case is distinguishable from the many cases that affirm a trial 

court’s “not favorable” finding after post-conviction DNA testing. In those cases, 

additional evidence existed strongly connecting the Appellant to the offense 

alleged. See Johnson v. State, 183 S.W.3d 515, 520 (Tex.App. – Houston[14th

Dist.] 2006, pet. dism’d.)(The Appellant was arrested immediately after the sexual 

assault while he was still holding the complainant against her will; an eyewitness 

identified the Appellant as the same man who had tried to abduct her immediately 

prior to the abduction and sexual assault of the complainant; the trial testimony and 

the Appellant’s Chapter 64 affidavit provided an alternative explanation for the 
Medford v. State

Appellant’s Opening Brief Page 13

presence of semen from an unknown source on the complainant’s underwear);

Cate v. State, 326 S.W.3d 388 (Tex.App. – Amarillo 2010, pet. ref’d)(Appellant’s 

theory for relief after post-conviction DNA testing was presented to the jury during 

Appellant’s trial. Therefore, this issue had already been decided against the 

Appellant); Baggett v. State, 110 S.W.3d 704 (Tex.App. – Houston[14th Dist.] 

2003, pet. ref’d)(Appellant testified at trial and admitted he was with the 

complainant on the night of the sexual assault and “believed” he stabbed her); 

Perez v. State, 2011 WL 2683189 (Tex.App. – Houston[14th Dist.] 2011)(not 

designated for publication)(Complainant knew the Appellant for several years prior 

to the sexual assault; an eyewitness identified the Appellant as the person he saw 

abducting the complainant; the examining nurse testified the complainant had 

physical injuries inconsistent with consensual sex; evidence similar to the results of 

the DNA testing was presented at the Appellant’s trial).

The DNA testing in Appellant’s case indicates that Appellant had several 

bloodstains on his clothing that matched C.E.’s DNA profile. However, the trial 

testimony in Appellant’s case makes it clear that Appellant lived with C.E. and, 

therefore, could have gotten these stains on his clothing in ways other than by 

assaulting C.E. Appellant’s and C.E.’s years of contact is also significant because

DNA testing cannot establish when the bloodstains were deposited on Appellant’s 

clothing. Furthermore, it is undisputed that there was no conflict between
Medford v. State

Appellant’s Opening Brief Page 14

Appellant and C.E. when officers were at their house the morning of May 27th, 

1995 (the day C.E. was later found in her seriously injured state). 

Based upon all of the facts present in Appellant’s case, had the results of the 

DNA testing been available during the Appellant’s trial, it is reasonably probable 

that Appellant would not have been convicted. Thus, the trial court erred by ruling 

that the DNA results were “not favorable” for Appellant. 

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays 

that this Court reverse the trial court’s decision in cause number 0584735D that the 

results of the DNA testing were not favorable and issue an opinion holding that, 

had the DNA results been available during Appellant’s trial of the offense, it is 

reasonably probable that Appellant would not have been convicted.

Respectfully submitted, 

/s/Scott Brown

Scott Brown

State Bar No: 03127100

One Museum Place

3100 West 7th Street, Suite 420

Ft. Worth, Texas 76107

Phone: (817) 336-5600

Fax: (817) 336-5610

Email: sb@scottbrownlawyer.com

Attorney for Appellant
Medford v. State

Appellant’s Opening Brief Page 15

CERTIFICATE OF SERVICE

This is to certify that a copy of this Brief has been forwarded, via First Class 

United Sates Mail, to Debra Windsor, Chief, Appellate Section, Tarrant County 

District Attorney’s Office, 401 W. Belknap St., Fort Worth, Texas 76196 on the

21st day of September, 2015.

/s/Scott Brown

Scott Brown

CERTIFICATE OF COMPLIANCE

I, Scott Brown, attorney for Appellant, Roger Dale Medford, certify that this 

document was generated by a computer using Microsoft Word 2007 which 

indicates the word count of this document is 2,652 per Tex.R.App. 9.4(i).

/s/Scott Brown

Scott Brown