6'5-/ST IN THE COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS §

APPELLANT §

§

V. § NO.

§

ROGER EUGENE FAIN §

APPELLEE §

ORIGINAL

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

ITEMS

Table of Contents

Identity Sf"badges, Parties and Counsels.

Index of Authorities

Petition For Discretionary Review

Statement Regarding Oral Arguments '

Statement of Procedural History

Questions For Review

Grounds For Relief

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

Argument & Authorities

Argument & Authorities

Argument & Authorities

Prayer

Certificate Of Mailing

Verification

Appendix: MEMORANDUM OPINION, of the Courttof Appeals, Third District

of Texas, Austin, Cause No. 03-T3-005B9-CR, Delivered Mat 7th 2015

ROCHE BIOMEDICAL LABORTORIES, Certificate of Analysis

Delivered on January 20th 1995

Ground For Relief No,

Ground For Relief No,

Ground For Relief No,

Ground For Relief No,

1

2

3

4

PAGES

~ ' -.-

: •£..:

ii-iii

iv

1

1

1- 2 .

2

2

3-4

4-5

5-6-7-8-9

9-10

10

10

11

12

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 unadjudicated 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 statment 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.

r Eugene Fain

0

Roger Eug

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.

-z

Roger trig

11

fl-fn— Exiqene Fain

£Las*s
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 appellantRoger Eugene Fain guiltyofmurder. SeeTex. 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 ofthe 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 mayorder DNA testingonly if (1) the

evidence still exists in a condition making DNA testing possible and has been maintained subject

to a chain ofcustody 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 beenobtained 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.

Exparte Gutierrez, 337S.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, accordingto Fain, he has satisfied all the statutoryrequirementsfor post-convictionDNA

testing. Inresponse, the State argues thatthis Court already settled the relevant legal issues when

it affirmed the trial court's orderdenying Fain's firstmotionand that the "law of the case" doctrine

prevents usfrom 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 ofFain'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 forthe failure to conductDNAtestson the evidence hewasmovingto have

tested. In reFain, 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, thevictim'sbody was ina field foroveramonth before itwas

discovered and her car, which was found parked nearby, had been burglarized.

Underthe circumstances, the presenceof biologicalmaterialon or nearthe 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 ofthe 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." InreFain, 83 S.W.3d at 889. BecauseFainhas not shownthat any

intervening factual or legal developments would call our previousdecision 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 resultshad been

obtainedthrough DNA testing." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.

Laws 2,3 (amended 2003) (current version atTex. Code Crim. Proc. art. 64.03(a)(2)(A)). Thecurrent

versionnowreads, "the convictedpersonestablishes bya 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 ouranalysis.
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

Fax: 919 361-7797

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 RogerFain.

Item 3. Samples listed as bloodstain from bathrobe with control.

Item 4. Samples listed as Select cigarettebutts/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 papertowels/Fordtruck passenger door.

Item 16. Samples listed as Selectcigarettebutts/ToyotaCorolla.

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

("Select")

1.1,4 NA NA NA NA NA 6,10

4 Cigarette Butt

("Select")

1.1,4 A,B A,B A*,B A,B A*,B*,C 6,10

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

1in 2,565 for Hispanics (Southeastern)

1 in 2,559 forHispanics (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 themixture of

genetic material detected inthis 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 DNAprofile 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 beeliminated as a possible donor of the genetic

material in this sample. The probability ofrandomly 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//<//$$

Page 3 of3