# 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 COURTOF CRIMINALAPPEALS $§§§ 

## 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 

# COURTOFCRIMINALAPPEALS MAY 22 2015 Abel Acosta, ClerkTABLE 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

12IDENTITY 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

liCounsels 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

111INDEX 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

IVIN 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 ReleaseOf 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 requestany 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 EVIDENCEFOR 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

- 6he 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 Onesuspect, 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.

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*sAPPENDIX

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 OFAPPEALS, THIRD DISTRICT, ATAUSTIN

NO. 03-13-00589-CR 

### RogerEugene Fain, Appellant

v. The State ofTexas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26THJUDICIAL 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 atimprisonmentfor life. This CourtaffirmedFain'sconviction onappeal. SeeFain
v. State, 986 S.W.2d 666 (Tex. App.—Austin 1998, pet. refd). In 2001, Fain filed a motion 

### requesting forensic DNAtestingofcertainevidencecollectedinconnectionwiththeinvestigation that led to the charges against him. SeeTex. 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, nopet.). In2012, Fain filed asecondmotionrequesting forensic DNA testing. Thetrial court again denied the motion, and in his sole point oferror onappeal, Fain 

## challenges thetrial court's ruling. SeeTex. Code Crim. Proc. art. 64.05. We will affirmthe trial court's order denying Fain's motion.DISCUSSION 

### Standardof review 

### 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 

### biologicalmaterial." Id. art.64.01 (a-1). Aconvictingcourt mayorder DNA testingonly if (1) the evidence still exists in a condition making DNA testing possible and has been maintained subject 

### to a chainofcustody 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 exculpatoryresults had beenobtainedthrough DNAtesting. Id. art.64.03(a). Inreviewing a trial court's rulings under Chapter 64, we give almost total deference to the trial court's findings of historical fact andapplication-of-law-to-fact issues that turn on witness credibility and demeanor. 

### Exparte Gutierrez, 337S.W.3d 883, 890(Tex. Crim. App. 2011). Weconsiderdenovo allother application-of-law-to-factquestions. Id. Analysis 

### In his sole point of error,Fainasserts that the trial court erred indenyinghis motion because, accordingto Fain, he has satisfied all the statutoryrequirementsfor post-convictionDNA 

### testing. Inresponse, theState argues thatthis Court already settledtherelevantlegal issues when itaffirmedthe trial court's orderdenyingFain's firstmotionand that the "law of the case" doctrine 

## prevents usfrom reconsidering ourdecision. See State v. Swearingen, 424 S.W.3d 32, 36 (Tex.

### Crim. App. 2014) (explaining that, under the "law ofthe 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 virtuallyidentical, they shouldbe controlled 

### by an appellate court's previous resolution"). The State also argues that Fain has not met the statutoryrequirements under Chapter 64. 

### We affirmedthe denial ofFain's previousmotionfor two reasons. First, at the time, 

### Chapter 64 provided that a convicted person could request DNA testing ofevidence that "was not 

### previouslysubjectedto 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 (amended2011) (current version at Tex. Code Crim. Proc. art. 64.01(b)). The trial court had made findings, supported by the record, that 

### Fainboreresponsibilityforthefailureto conductDNAtestson theevidencehewasmovingto have tested. In reFain, 83 S.W.3d at888-89. 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 burdenofestablishing 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 

### obtainedthroughDNA 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'sbodywas inafieldforoveramonthbeforeitwas discovered and her car, which was found parked nearby, had been burglarized. 

### Underthecircumstances, 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, thejury at Fain's trial was told that DNA tests did not connect him to the murder. Thejury nevertheless convicted Fain on the basis ofa 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, "throughno 

### fault ofthe convictedperson." Act ofMay 20, 2011, 82d Leg., R.S., ch. 366, § 1, 2011 Tex. Gen. Laws 1016,1016. However, even assumingwithoutdecidingthat the 2011 amendmentundermines 

### the first basis for our previous decision, the amendments to Chapter 64 do not affect our second reason for affirming the denial ofFain's first motion: Fain did not establish by apreponderance of 

### theevidencethatexculpatoryDNAevidencewouldhavepreventedhisconviction.' 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 legaldevelopments would call our previousdecision into question, we will not revisit our conclusion that Fain failed to meet the statutory requirements for forensic DNA 

### testing. SeeSwearingen, 424 S.W.3d at 36. Accordingly, we overrule Fain's sole pointoferror.
1 At the time, Chapter 64 provided that a court could order DNA testing only if "the 

### convicted person establishes by apreponderance of theevidence that... areasonableprobability exists that the person would not have beenprosecutedor convictedifexculpatoryresultshad been obtainedthrough DNA testing." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. 

### Laws 2,3 (amended2003) (currentversionatTex. CodeCrim. Proc. art. 64.03(a)(2)(A)). Thecurrent versionnowreads, "the convictedpersonestablishesbyapreponderanceof theevidencethat... the 

### person would nothave been convicted ifexculpatory results hadbeen obtained through DNA testing." Tex. CodeCrim. Proc. art. 64.03(a)(2)(A). This amendmentdoes notaffectouranalysis.CONCLUSION 

### HavingoverruledFain's sole pointoferror, we affirmthe trial court's orderdenying his motion requesting forensic DNA testing.

Scott K. Field, Justice 

### Before Justices Puryear, Goodwin and Field Affirmed Filed: May 7, 2015 Do Not Publish



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# ^^^* Roche Biomedical Laboratories AMemberof theRocheGroup RocheBiomedicalLaboratories, Inc. 1912 Alexander Drive Research Triangle Park, North Carolina 27709 Telephone: 919361-7700 Fax: 919 361-7797 CERTIFICATE OFANALYSIS 

### January 20,1995 DistrictAttorney 

### 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 DateReceived: 9/22/94 (#0197971546) Item 1. One (1) sample listed as PAP smear slide from SandraDumont/L-234329. 

### Item 2. Blood samples listed as RogerFain. Item 3. Samples listed as bloodstainfrom 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 cigarettebutts/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 listedas condom. 

### Item 12. Samplelisted as tampon. Item 13. Samples listed as Select cigarette butts/Ford truck. 

### Item 14. Sample listed as papertowels/Fordtruck passengerseat. Item 15. Sample listed as papertowels/Fordtruck passenger door. Item 16. Sampleslisted as Selectcigarettebutts/ToyotaCorolla.
Page 1 of3F9400216 Results: 

### Deoxyribonucleic acid (DNA) wasprocessedfrom the above listed evidence andcharacterized through the polymerase chain reaction (PCR) at the following genetic systems: Alleles Detected &m 

### Sample 

### BQalpha 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 CigaretteButt ("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 ofallelesdesignated 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 ofthe individuals are eliminated as possible sources ofthe 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 ofthe genetic material detected in this sample. The probability ofrandomly selecting an unrelated individual with a 

### DNA profileconsistentto Items 1 and16, at thegenetic systems listed(excluding HUMTHOl), is approximately: 1 in 3,002for Caucasians 

### 1 in 6,740forBlacks 

### 1in2,565forHispanics (Southeastern) 1in 2,559 forHispanics (Southwestern) Page 2 of3F9400216 

## TheDNAprofileobtainedforthe "Select"cigarettebuttlistedasbeingrecoveredfrom the living room ashtray (Item 4) is consistent with a mixture ofDNA profiles from more than one 

## individual. RogerFain (Item 2)cannot beeliminatedas apossible contributorto themixture of 

## geneticmaterialdetectedinthis sample. Also, the "A"allele detectedatthe GCgenetic system forthis sample could not have beencontributedby SandraDumont. No statistical evaluation can 

### becalculatedforthis mixedsample. 

## The DNAprofile obtainedfor thesample listedas "Select" cigarette buttfrom Fordtruck(Item 13) is consistent with the DNA profile obtainedfrom Roger Fain (Item 2) and differentfrom 

## SandraDumont; therefore, RogerFain cannotbeeliminatedas apossible donor of thegenetic material in this sample. The probability ofrandomly selecting an unrelated individual with a DNA profileconsistent to Items 2 and13 at thegenetic systems DQ alpha and HUMTHOl is approximately:1 in 80 for Caucasians 1 in 429for Blacks 

### 1 in 143 for Hispanics(Southeastern) 

### 1 in 116forHispanics (Southwestern) 

## Theresultshavebeenreviewedindependentlybytheundersignedandarecorrectasreported. Sworn to and subscribed 

## beforemethis A/**" day /i/l^«//>? C i 

# of S/(flA*A, 19^ Ma{ciaEisenberg,Ph.D. 77 atResearchTrianglePark, NC. Director, ForensicIdentity


# \A+*J &JC/lAS*> NotaryPublic State of North Carolina 

# Mycommissionexpires (f //<//$$

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