Affirmed and Opinion Filed February 23, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00573-CR 

No. 05-22-00574-CR 

LAWRENCE ALLEN FULLER, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 3 

Dallas County, Texas 

Trial Court Cause Nos. F97-01742-J and F97-02170-J 

MEMORANDUM OPINION 

Before Justices Carlyle, Garcia, and Miskel 

Opinion by Justice Miskel 

Lawrence Allen Fuller, appearing pro se, appeals the trial court’s order 

denying his pro se motion for DNA testing under chapter 64 of the Texas Code of 

Criminal Procedure. In one issue, he argues the evidence that he sought to have 

tested was destroyed in bad faith so the trial court should have granted him “some 

type of relief” instead of merely denying his motion. We conclude that we do not 

have jurisdiction over the issue raised by this appeal. The trial court’s order denying 

Fuller’s pro se motion for postconviction DNA testing is affirmed. 
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I. PROCEDURAL BACKGROUND 

Fuller was indicted for aggravated robbery with a deadly weapon (trial court 

cause no. F97-01742-J) and aggravated robbery of an elderly person (trial court 

cause no. F97-02170-J), and both were enhanced by two prior convictions. He had 

a jury trial in 1997. In the aggravated robbery with a deadly weapon case, the jury 

found him guilty, determined that he used a deadly weapon during the commission 

of the offense, found the enhancements true, and assessed his punishment at sixtyfive years of imprisonment. In the aggravated robbery of an elderly person case, the 

jury found Fuller guilty, found the enhancements true, and assessed his punishment 

at forty-five years of imprisonment. Fuller appealed his convictions, and this Court 

affirmed the trial court’s judgments. Fuller v. State, No. 05-97-02125-CR, 1999 WL 

778274 (Tex. App.—Dallas Oct. 1, 1999, pet. ref’d) (mem. op., not designated for 

publication). 

On July 16, 2017, Fuller filed a pro se motion requesting the appointment of 

counsel to assist him in obtaining an order for DNA testing pursuant to chapter 64 

of the Texas Code of Criminal Procedure.1

 Specifically, Fuller sought DNA testing 

of a jacket and a paper sack containing credit cards. On August 19, 2021, the trial 

court construed his motion as both a request for counsel and a motion for DNA 

1

 Fuller filed two petitions seeking a writ of mandamus related to his July 16, 2017 motion. In re 

Fuller, No. 05-21-01124-CV, 2022 WL 1164654 (Tex. App.—Dallas Apr. 20, 2022, original proceeding) 

(mem. op.); In re Fuller, No. 05-21-00674-CR, 2021 WL 4932136 (Tex. App.—Oct. 22, 2021, original 

proceeding) (mem. op.). 
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testing. On March 11, 2022, the State filed its response stating (1) the jacket was 

destroyed in 2006, and (2) the paper sack could not be located because it was either 

not stored as evidence or it was submitted with other evidence and destroyed. In 

support of its assertion, the State attached, among other things, an email from the 

felony records supervisor stating the database showed the evidence destroyed, 

observing there was no destruction order, and acknowledging the evidence should 

not have been destroyed. 

On March 14, 2022, without a hearing, the trial judge signed an order denying 

Fuller’s motion for postconviction DNA testing. The trial judge found (1) the trial 

exhibits were destroyed in 2006 and no longer available for DNA testing, and (2) 

the paper sack does not still exist in a condition making DNA testing possible, and 

it was not subjected to a chain of custody sufficient to establish that it has not been 

substituted, tampered with, replaced, or altered in any material respect. This appeal 

followed. 

II. POSTCONVICTION DNA TESTING 

In issue one, Fuller argues the evidence he sought to have tested was destroyed 

in bad faith so the trial court should have granted him “some type of relief” instead 

of merely denying his motion for DNA testing. He contends that, as a result, his 

constitutional right to due process was violated when the State destroyed the 

evidence. The State responds that Fuller’s due-process claim regarding the 

destruction of DNA evidence is not cognizable in a postconviction DNA testing 
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appeal and the trial court cannot order the State to test evidence that has been 

destroyed. 

A. Applicable Law 

Jurisdiction concerns the power of a court to hear and determine a case; it is 

fundamental and cannot be ignored by a court. See State v. Riewe, 13 S.W.3d 408, 

410 (Tex. Crim. App. 2000); see also Watson v. State, 96 S.W.3d 497, 500 (Tex. 

App.—Amarillo 2002, pet. ref’d). A court is obligated to consider sua sponte

whether it has jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 

1996), overruled in part on other grounds by State v. Medrano, 67 S.W.3d 892, 894 

(Tex. Crim. App. 2002); see also Watson, 96 S.W.3d at 500. 

Jurisdiction must be vested in a court by constitution or statute. Roberts, 940 

S.W.2d at 657; see also Chavez v. State, 132 S.W.3d 509, 510 (Tex. App.—Houston 

[1st Dist.] 2004, no pet.). Stated another way, in criminal cases, the standard for 

determining jurisdiction is not whether the appeal is precluded by law, but whether 

the appeal is authorized by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. 

Crim. App. 2008). Article V, § 6 of the Texas Constitution provides that a court of 

appeals shall “have original or appellate jurisdiction, under such restrictions and 

regulations as may be prescribed by law.” TEX. CONST. art. V, § 6; Chavez, 132 

S.W.3d at 510. 
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1. Postconviction DNA Testing 

Under chapter 64 of the Texas Code of Criminal Procedure, a convicted 

person may request the convicting court to order postconviction DNA testing of 

evidence that was collected in relation to the offense and was in the State’s 

possession during the trial of the offense but was not previously subjected to DNA 

testing. TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1), (b)(1). To be entitled to such 

testing, certain statutory requirements must be met: (1) the evidence still exists and 

is in a condition making DNA testing possible; (2) the evidence has been subjected 

to a chain of custody sufficient to establish that it has not been substituted, tampered 

with, replaced, or materially altered; (3) there is a reasonable likelihood that the 

evidence contains biological material suitable for DNA testing; and (4) the 

perpetrator’s identity was or is an issue in the case. Id. art. 64.03(a)(1).2

 There is 

no free-standing due-process right to DNA testing. Ex parte Gutierrez, 337 S.W.3d 

883, 889 (Tex. Crim. App. 2011). And chapter 64 is not an invitation to review 

every potential error in the underlying trial proceedings; instead, it is simply a 

procedural vehicle for obtaining evidence, which might then be used in a state or 

federal habeas proceeding. See Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. 

App. 2005). 

2

 We note that the Texas Court of Criminal Appeals has recognized article 64.03(a)(2)(A) as 

unconstitutional. Gutierrez v. State, AP-77,102, 2022 WL 946165, at *2–3 & n.4 (Tex. Crim. App. Mar. 

20, 2022). 
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Chapter 64 confers jurisdiction on courts of appeals to review a trial court’s 

order denying postconviction DNA testing in any case in which the death penalty is 

not imposed.3 CRIM. PROC. art. 64.05; Whitfield v. State, 430 S.W.3d 405, 408 n.11 

(Tex. Crim. App. 2014) (citing Swearingen v. State, 189 S.W.3d 779, 781 (Tex. 

Crim. App. 2006)). Accordingly, chapter 64 does not confer jurisdiction on an 

appellate court to consider collateral attacks on the trial court’s judgment or to 

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

articles. Reger v. State, 222 S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. 

ref’d); see also Rodriguez v. State, No. 05-18-01273-CR, 2019 WL 3369751, at *3 

(Tex. App.—Dallas July 26, 2019, no pet.) (mem. op., not designated for 

publication). An appeal under article 64.05 is limited to a review of the trial court’s 

rulings in the postconviction DNA proceedings. Rice v. State, No. 05-22-00135-CR, 

2023 WL 128392, at *4 (Tex. App.—Dallas Jan. 9, 2023, no pet.) (mem. op., not 

designated for publication). 

2. Preservation of Evidence Containing Biological Material 

Under article 38.43 of the Texas Code of Criminal Procedure, an attorney 

representing the state, clerk, or other officer in possession of biological evidence 

may destroy the evidence, but only if the attorney, clerk, or officer notifies by mail 

3

 The Texas Court of Criminal Appeals has recognized that the text of article 64.05, which speaks 

only of procedures and does not address the substance of what may be appealed, does not provide clear 

guidance of what may be appealed in a chapter 64 proceeding. Whitfield v. State, 430 S.W.3d 405, 408 

(Tex. Crim. App. 2014). 
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the defendant, the last attorney of record for the defendant, and the convicting court 

of the decision to destroy the evidence and a written objection is not received by a 

specified date. CRIM. PROC. art. 38.43(d);4 see also Hurley v. State, No. 05-07-

00597-CR, 2008 WL 2454675, at *2 (Tex. App.—Dallas June 19, 2008, no pet.) 

(mem. op., not designated for publication); Hurley v. State, 05-06-00034-CR, 2006 

WL 3528668, at *1 (Tex. App.—Dallas Dec. 8, 2006, no pet.) (not designated for 

publication). 

When the issue is the preservation of evidence containing biological material, 

article 38.43 does not provide for any relief by the lower court, nor authorize an 

appeal to a court of appeals. CRIM. PROC. art. 38.43; Chavez, 132 S.W.3d at 510; 

Watson, 96 S.W.3d at 500; see also Hurley, 2008 WL 2454675, at *2; Hurley, 2006 

WL 3528668, at *1. Courts of appeals are without jurisdiction to address whether 

the State improperly destroyed DNA evidence. Hurley, 2008 WL 2454675, at *2; 

Hurley, 2006 WL 3528668, at *1. 

C. No Jurisdiction Over Fuller’s Appeal 

Fuller filed a notice of appeal of the trial court’s chapter 64 order. However, 

on appeal, Fuller does not assert any trial court error with respect to that order or the 

chapter 64 proceedings. CRIM. PROC. art. 64.04; Chavez, 132 S.W.3d at 510; 

Watson, 96 S.W.3d at 500. Rather, Fuller contends his due-process and equal4

 Formerly article 38.39 of the Texas Code of Criminal Procedure. 
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protection rights were violated because material DNA evidence was destroyed in 

bad faith so the trial court should have granted him “some type of relief.” However, 

Fuller does not identify the type of relief he believes the trial court should have 

granted. We construe Fuller’s argument to complain that the evidence was destroyed 

in violation of article 38.43 of the Texas Code of Criminal Procedure. And, although 

Fuller does not designate his appeal as an application for a writ of habeas corpus, in 

effect his claim amounts to a request for habeas relief. See Chavez, 132 S.W.3d at 

510. 

Article 11.07 establishes the procedures for an application for writ of habeas 

corpus when the applicant seeks relief from a felony judgment imposing a penalty 

other than death. CRIM. PROC. art. 11.07. Under Texas Code of Criminal Procedure 

article 11.05, the Court of Criminal Appeals, the district courts, and the county courts 

have the power to issue writs of habeas corpus, but the courts of appeals are not 

designated as having jurisdiction to entertain or issue such writs. CRIM. PROC. art. 

11.05; Watson, 96 S.W.3d at 500. Further, under § 22.221, a court of appeals does 

not have original habeas corpus jurisdiction in a felony case after final conviction. 

TEX. GOV’T CODE ANN. § 22.221(d). 

The relief that Fuller seeks is outside the scope of an appeal from the denial 

of a motion for postconviction DNA testing. As a result, the only issue in this appeal 

falls outside of our jurisdiction under chapter 64. The Texas Court of Criminal 
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Appeals has sole jurisdiction over the issue raised by Fuller. See CRIM. PROC. art. 

11.05, 11.07. 

III. CONCLUSION 

This Court does not have jurisdiction over the issue raised by Fuller. 

The trial court’s order denying Fuller’s pro se motion for postconviction DNA 

testing is affirmed. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

220573F.U05 

 

/Emily Miskel/

EMILY MISKEL 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

LAWRENCE ALLEN FULLER, 

Appellant 

No. 05-22-00573-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District 

Court No. 3, Dallas County, Texas 

Trial Court Cause No. F97-01742-J. 

Opinion delivered by Justice Miskel. 

Justices Carlyle and Garcia 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered February 23, 2023 

 
 –11– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

LAWRENCE ALLEN FULLER, 

Appellant 

No. 05-22-00574-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District 

Court No. 3, Dallas County, Texas 

Trial Court Cause No. F97-02170-J. 

Opinion delivered by Justice Miskel. 

Justices Carlyle and Garcia 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered February 23, 2023