COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00308-CR

MUQTASID A. QADIR APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Muqtasid A. Qadir appeals the trial court’s order denying his third 

motion for DNA testing of evidence related to his murder conviction.2

 Because 

we conclude that the trial court did not err by denying the motion, we affirm.

 1

See Tex. R. App. P. 47.4.

2

See Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006); see also Tex. 

Penal Code Ann. § 19.02(b) (West 2011). 
2

Background Facts

This is not appellant’s first proceeding in this court. In affirming the trial 

court’s denial of one of his prior motions for DNA testing, we provided details 

related to his conviction and life sentence for murdering his girlfriend and the 

litigation that has followed, explaining,

The evidence showed that Qadir’s girlfriend, Barbara Johnson, was 

stabbed to death and found by her grandfather, Joe McLane, at his 

house, where she resided. Johnson had been repeatedly stabbed in 

her shoulders, head, neck, hands, and arms. McLane called the 

police, who arrived shortly thereafter and secured the scene. 

McLane looked through the house but did not discover anything 

missing. Fort Worth Police Officer G.T. Baskin was one of the first 

officers on the scene, and in his search of the premises, he 

discovered a trail of blood leading away from the house to the north. 

Other officers gathered evidence, such as blood samples and 

fingerprints, at the scene.

The day after the murder, Detective John Thornton questioned 

Qadir at his place of work, ostensibly because he had been dating 

Johnson. During the interview, Thornton became suspicious 

because Qadir’s hand was cut; Detective Thornton invited Qadir 

down to the station. Police procured a warrant for samples of 

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

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

locations at the scene of the murder. Further DNA testing provided 

an even more conclusive match. A letter describing details of the 

crime that had not been released to the public was later received by 

the police. Qadir’s fingerprint was on the envelope. Additional 

evidence was elicited that Qadir had recently threatened Johnson 

several times.

Since his conviction, Qadir has filed several appeals to this 

court. In 1996, Qadir appealed his conviction directly to this court. 

This court affirmed his conviction. In 1999, Qadir appealed to this 

court attempting to reverse the trial court’s denial of his motion to 

recuse the judge presiding over his post-conviction habeas corpus 

petition. In 2002, Qadir appealed to this court attempting to reverse 

an order denying his motion to recuse the same judge from presiding 
3

over his request for DNA testing. In 2009, Qadir filed a petition for 

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

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

in the trial court for seven years without a ruling. In that opinion, we 

noted that the trial court had informed us that Qadir’s case file had 

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

for DNA testing.

Qadir v. State, No. 02-09-00276-CR, 2010 WL 3377794, at *1 (Tex. App.—Fort 

Worth Aug. 27, 2010, pet. ref’d) (mem. op., not designated for publication) 

(citations omitted).

In our 2010 opinion, we affirmed the trial court’s order denying appellant’s 

second motion for DNA testing. Id. at *1–3. We explained that the trial court had 

not erred by denying his motion to test several items—including broken glass jar 

fragments, a table knife, and a footprint from carpet—because DNA testing had 

been available at the time of appellant’s trial to test the items in the manner that 

he had desired. See id. at *2.3

 We also noted that appellant had made collateral 

 3

In 2010, the code of criminal procedure allowed for DNA testing of 

untested biological material only when testing was unavailable at the time of trial, 

was available but not capable of being probative, or was available but the 

material was not tested through no fault of the convicted person. See Qadir, 

2010 WL 3377794, at *2; see also Booker v. State, No. 05-11-01141-CR, 2012 

WL 6635227, at *4 (Tex. App.—Dallas Dec. 21, 2012, pet. ref’d) (not designated 

for publication). In 2011, the legislature relaxed chapter 64’s requirements by 

allowing testing of untested biological material when it was simply “not previously 

subjected to DNA testing.” See Act of May 20, 2011, 82nd Leg., R.S., ch. 366, 

§ 1, 2011 Tex. Sess. Law Serv. 1015 (West) (current version at Tex. Code Crim. 

Proc. Ann. art. 64.01(b)(1) (West Supp. 2013)). Therefore, because the law 

currently does not require a reason why untested material was not tested, the 

standards and issues related to this appeal are different than the issues upon 

which we decided appellant’s previous appeal. See Qadir, 2010 WL 3377794, 

at *2.
4

attacks on his murder conviction that we had no jurisdiction to resolve. Id. at *3 

(“Although chapter 64 of the code of criminal procedure authorizes forensic DNA 

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

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

collateral attacks on the . . . conviction . . . .”).

In September 2012, appellant filed a third motion for DNA testing. He 

again appeared to argue that broken glass jar fragments, a bloody table knife, 

and a bloody carpet section should be tested.4

 Appellant alleged that one 

forensic scientist had not tested all blood evidence and that the items tested by 

that scientist were inconclusive with respect to inculpating anyone. He also

asserted that the record from his trial revealed the possibility of preexisting blood 

stains at the residence where the murder was committed and alleged that any 

such bloodstains matching his own should not have inculpated him. Thus, 

appellant argued that the State should have conducted a “time frame blood 

analysis.”

The State filed a response to appellant’s motion, conceding the existence 

of biological evidence related to his conviction but asking the trial court to deny 

the third motion because “evidence already subjected to forensic DNA testing 

[had] inculpated him.” Specifically, the State contended that tests had revealed 

 4

In an affidavit attached to the motion, appellant contended that DNA 

testing of these items would reveal that he was not connected “in the least . . . to 

this crime.”
5

DNA profiles matching appellant’s profile from blood samples on a bathroom 

wall, sink, and floor; a front door; a porch; an iron handle; and a sheet.5

 

According to the State, the already-conducted tests established that the 

probability of an unrelated individual having the same profile as the profile from 

the blood found on those items was “approximately one in 1.6 billion Caucasians, 

one in 132 million Hispanics, and one in 360 [m]illion African-Americans.”

While the State recognized that appellant was seeking to test items other 

than those previously tested, it contended,

[G]iven that [appellant’s] blood was found all over Barbara Johnson’s 

murder scene, it is unlikely that newer testing of this evidence or any 

other evidence would provide results which would exonerate him. 

Thus, [appellant] does not meet the article 64.01 requirements 

for post-conviction forensic DNA testing, and his new request should 

be denied.

. . . .

Given the prior forensic DNA testing inculpating [appellant], 

there is no reasonable probability that further DNA testing would 

prove his innocence.

Finally, the State argued that evidence outside of DNA testing connected 

appellant to the murder, including that Johnson had been repeatedly stabbed, 

that appellant was known to carry a knife, that he had fresh injuries to his right 

hand when the police interviewed him on the day after the discovery of Johnson’s 

body, that his fingerprints were on an envelope containing an anonymous letter 

 5

The record contains a lab report that substantiates this contention.
6

that described the murder, and that he had threatened to kill Johnson shortly 

before her death.

On the same day that the State filed its response to appellant’s motion, it 

also filed proposed findings of fact and conclusions of law. Approximately two 

weeks later, the trial court adopted those findings and conclusions and denied 

appellant’s motion.6

 The court found and concluded as follows:

FINDINGS OF FACT

1. The defendant was convicted by a jury of the offense of

murder . . . and sentenced . . . to confinement for life on February

26, 1996. . . .

. . . .

3. This Court denied the defendant’s previous request for 

post-conviction forensic DNA testing because he did not meet the

requirement of article 64.01 of the Code of Criminal Procedure. . . .

. . . .

5. Serologist Jamie King of the Fort Worth Police Department

Crime Laboratory conducted forensic DNA testing on blood samples 

taken from:

• The bathroom wall, sink[,] and floor;

• The front door exterior;

• The porch;

• The iron handle; and

• A sheet. . . .

 6

We dismissed a previous appeal by appellant because at that time, the 

trial court had not yet denied appellant’s third motion. Qadir v. State, No. 02-12-

00558-CR, 2013 WL 1337944, at *1 (Tex. App.—Fort Worth Apr. 4, 2013, no 

pet.) (mem. op., not designated for publication).
7

6. Ms. King found that the defendant’s DNA profile matched 

the DNA profile of the blood samples from the bathroom wall and

sink, the front door exterior, the porch, and the sheet at all loci; and 

two bands of the blood sample from the iron handle at all loci. . . .

7. Ms. King found that the defendant’s profile matched two of 

the bands of the blood sample from the bathroom floor at three

loci. . . .

. . . .

9. The defendant cannot be excluded as the contributor of the

blood found all over Barbara Johnson’s murder scene.

10. It is unlikely that newer testing of evidence would provide

exonerating results given that previously-tested DNA evidence

showed the presence of the defendant’s blood all over the murder 

scene[.]

11. The defendant does not meet the article 64.01 

requirements for post-conviction forensic DNA testing.

. . . .

19. There is no reasonable probability that DNA testing of 

other evidence could exonerate the defendant given the previouslytested DNA evidence inculpating him and the other evidence

connecting him to Barbara Johnson’s murder.

20. The defendant does not meet the article 64.03 

requirements for post-conviction forensic DNA testing.

CONCLUSIONS OF LAW

1. A convicted person may request forensic DNA testing of

evidence not previously tested or evidence previously subjected to 

DNA testing where subjecting the evidence to newer testing 

techniques would provide a reasonable likelihood of results that are 

more accurate and probative than the results of the previous 

test. . . . 

2. The key issue in considering new requests regarding 

previously tested evidence is whether the type of DNA testing 
8

available and used to test the evidence was capable of providing

probative results. . . .

3. It is unlikely that newer DNA testing of previously-tested

evidence or untested evidence would provide results which would 

exonerate the defendant. . . .

. . . .

5. A convicted person must establish that there exists a

reasonable probability that exculpatory DNA testing of the evidence 

for which he seeks testing would prove his innocence. . . .

6. There is no reasonable probability that DNA testing of other

evidence could exonerate the defendant given the previously-tested

DNA evidence inculpating him and the other evidence connecting 

him to Barbara Johnson’s murder.

Appellant brought this appeal.

The Denial of Appellant’s Motion

We review a trial court’s denial of a motion for DNA testing of biological 

material under a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59 (Tex. 

Crim. App. 2002). We afford almost total deference to a trial court’s 

determination of issues of historical fact, but we review de novo the trial court’s 

applications of the law to facts as long as those applications do not turn on 

credibility and demeanor of witnesses.7

 Id.; see Harbour v. State, No. 02-10-

00558-CR, 2011 WL 3795256, at *1 (Tex. App.—Fort Worth Aug. 25, 2011, no 

pet.) (mem. op., not designated for publication).

 7

The trial court did not receive live testimony on appellant’s third motion for 

DNA testing; we do not have a reporter’s record related to the motion.
9

Chapter 64 of the code of criminal procedure allows a convicted person to

file a motion for forensic DNA testing of evidence containing biological material. 

See Tex. Code Crim. Proc. Ann. art. 64.01(a)(1), (a-1); State v. Swearingen, 

No. AP-77020, 2014 WL 440910, at *3 (Tex. Crim. App. Feb. 5, 2014). A motion 

under article 64.01 must be accompanied by an affidavit that is sworn to by the 

convicted person and that contains facts in support of the motion. Tex. Code 

Crim. Proc. Ann. art. 64.01(a-1). The biological material to be tested must have 

either not been previously tested, or if previously tested, the convicted person 

must show that “newer testing techniques . . . provide a reasonable likelihood of 

results that are more accurate and probative than the results of the previous 

test.” Id. art. 64.01(b); see Swearingen, 2014 WL 440910, at *3.

The trial court may order DNA testing of biological material only when the 

convicted person proves by a preponderance of the evidence that a conviction 

would not have occurred if exculpatory results had been obtained through testing 

of the material at issue. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (West 

Supp. 2013); Swearingen, 2014 WL 440910, at *3, *5 (“In order to be entitled to 

DNA testing, the [movant] must show by a preponderance of the evidence (51%) 

that he would not have been convicted if the exculpatory results were available at 

trial.”); Ex parte Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011). 

Evidence that could establish the possibility of another DNA contributor to the 

scene of a crime does not meet this requirement when a “mountain of evidence” 

supports the defendant’s guilt. See Swearingen, 2014 WL 440910, at *5. It is 
10

not sufficient for a movant under chapter 64 to establish that a new DNA test 

result would merely “muddy the waters” on the validity of a conviction. Hill v. 

State, No. 02-11-00398-CR, 2012 WL 4010460, at *12 (Tex. App.—Fort Worth 

Sept. 13, 2012, no pet.) (mem. op., not designated for publication) (explaining 

that the “mere presence of a third party’s DNA at a crime scene does not 

establish a reasonable probability of an appellant’s innocence when it does not 

explain away all of the other evidence pointing to his guilt”).

Liberally construing appellant’s pro se arguments in the trial court and this 

court together, it appears to us that he seeks testing of two groups of evidence. 

The first group comprises evidence that has not been tested and includes broken 

glass jar fragments, a table knife, and a carpet section containing a bloody 

footprint. Concerning these items, we agree with the State’s argument and the 

trial court’s finding that appellant has not met his burden under article 

64.03(a)(2)(A).

In other words, given the substantial evidence supporting appellant’s

conviction—including the presence of his blood on many items at the murder 

scene,

8 the appearance of his fingerprint on an envelope9 containing a letter that 

 8

Appellant does not deny this fact. Instead, he contends that the evidence 

at his trial supported an inference that he bled in the house before the murder 

was committed.

9

Appellant appears to contest this fact, alleging that his fingerprint was 

“planted.” But the weight of this evidence may not be relitigated through a motion 

filed under chapter 64. See Qadir, 2010 WL 3377794, at *3; In re Morton, 326 

S.W.3d 634, 647 (Tex. App.—Austin 2010, no pet.).
11

described the murder, and evidence of his repeated threats to his victim before 

her death—we conclude that he has not shown by a preponderance of the 

evidence that he would not have been convicted if the jar fragments, knife, and 

footprint contain DNA profiles that do not match his. See Tex. Code Crim. Proc. 

Ann. art. 64.03(a)(2)(A); Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim. 

App. 2010) (“Texas courts have consistently held that a movant does not satisfy 

his burden under Article 64.03 if the record contains other substantial evidence of 

guilt independent of that for which the movant seeks DNA testing.”); Prible v. 

State, 245 S.W.3d 466, 470 (Tex. Crim. App.) (affirming a trial court’s denial of 

postconviction DNA testing because “even if the evidence was retested and 

determined to contain another person’s DNA in addition to [the defendant’s]

DNA, it would not establish by [a] preponderance of the evidence that [the 

defendant] would not have been convicted”), cert. denied, 555 U.S. 833 (2008); 

Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (“The presence of 

another person’s DNA at the crime scene will not, without more, constitute 

affirmative evidence of appellant’s innocence.”); see also Baylor v. State, No. 02-

10-00561-CR, 2011 WL 4008026, at *3 (Tex. App.—Fort Worth Sept. 8, 2011, no 

pet.) (mem. op., not designated for publication) (relying on evidence presented at 

the defendant’s trial and recited in an earlier appellate opinion to affirm a trial 

court’s denial of his later motion for DNA testing). We hold that the trial court did 

not err by denying appellant’s motion to allow testing of glass jar fragments, a 

table knife, and a carpet section containing a bloody footprint.
12

The second group of evidence includes items that were already tested. 

Appellant appears to argue that these items should be retested to prove that his 

blood appeared at the murder scene before the murder occurred. He asks for a 

“Time Frame Blood Analysis.”

To obtain testing of evidence that has already been tested, the movant 

must show that the evidence “can be subjected to testing with newer testing 

techniques that provide a reasonable likelihood of results that are more accurate 

and probative than the results of the previous test.” Tex. Code Crim. Proc. Ann. 

art. 64.01(b)(2). We agree with the trial court’s finding and conclusion that 

appellant did not establish this requirement under article 64.01. In his motion, 

appellant alleged that a serologist had generally testified to “there being a way to 

tell how old blood is, but nothing specific.” He also alleged that the record from 

his trial revealed the “possibility of ‘preexisting blood stains’” before the murder 

occurred. With regard to proving such preexisting blood stains, appellant 

alleged, “[T]oday in our society we have much advanced technology in the 

Scientific Discovery of Evidence . . . to the point that we are able to determine . . . 

how old bones are of our forefathers and prehistoric animals . . . .”

These statements do not satisfy article 64.01’s requirement. See id. That 

is, they do not prove that evidence already tested can now be tested again with a 

newer technique that will be probative on the issue of whether appellant’s blood 

appeared on items at the murder scene before the crime occurred, as he alleges. 

Cf. Swearingen, 303 S.W.3d at 735 (“[A]ppellant has not shown a reasonable 
13

likelihood that results [from a newer testing technique] would be more accurate or 

probative.”); Routier v. State, 273 S.W.3d 241, 250 (Tex. Crim. App. 2008)

(holding that a defendant was not entitled to retest blood stains on a sock

because she failed to establish that newer testing results would be more 

probative than results of previous testing); Marks v. State, No. 02-09-00144-CR, 

2010 WL 598459, at *1 (Tex. App.—Fort Worth Feb. 18, 2010, no pet.) (mem. 

op., not designated for publication) (“[The movant] failed to allege, much less 

prove, that [the testing company] will utilize ‘newer testing techniques that 

provide a reasonable likelihood of results that are more accurate and probative 

than the results of the previous test.’ Thus, he did not meet the requirements of 

article 64.01(b)(2).”). Therefore, we conclude that the trial court did not err by 

denying appellant’s motion to allow testing of material that had already been 

tested.

Next, many of appellant’s arguments in the trial court and on appeal do not 

directly concern the trial court’s denial of his third motion for DNA testing but 

instead focus on issues related to his trial or actions that preceded it.10 For 

example, in his motion, appellant stated that he was challenging the 

“STATE/Prosecution Expert [Witnesses’] failures to execute a plan for carrying 

out Scientific Study and particular Scientific Studies, Use of Improper 

Procedures, failure to Re-test and Reextract test results, and the ‘Untested’ and 

 10We also note that many of the facts included within appellant’s briefs in 

this court are unsupported by the concise record filed in this appeal. 
14

‘Unexamined’ DNA Blood samples of Evidence containing biological material 

. . . .” In his appellate brief, appellant argues about the alleged ineffectiveness of 

his trial counsel and states that the “evidence as a whole establishes . . . the guilt 

of [someone] other than himself.” He also phrases his first issue as “Whether The 

State’s Own Expert Witnesses Failed To Execute A Plan For Carrying Out 

Scientific Study Of The Evidence Containing Biological Material In The 

Appellant’s Case, Or Not?” To the extent that appellant attempts to collaterally 

attack his murder conviction through contentions like these, we overrule all of 

those arguments. See Qadir, 2010 WL 3377794, at *3; Reger v. State, 222 

S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 552 U.S. 

1117 (2008).

Finally, in his second issue, appellant argues that the legislature’s 

amendment of article 64.01 in 2011, as described in footnote three above, 

“disadvantaged” his third motion for DNA testing and violated his constitutional 

right against ex post facto laws.11 As explained above, the 2011 change to 

article 64.01 relaxed the requirements for seeking DNA testing, benefiting 

movants like appellant. Whereas appellant’s possible “fault” in not seeking 

testing before his trial once may have precluded later testing, fault no longer 

factors into section 64.01’s qualifications for testing. See Act of May 20, 2011, 

82nd Leg., R.S., ch. 366, § 1, 2011 Tex. Sess. Law Serv. 1015 (West); see also 

 11See U.S. Const. art. I, § 10; Tex. Const. art. 1, § 16.
15

Patt v. State, No. 10-11-00318-CR, 2012 WL 4040736, at *1 (Tex. App.—Waco 

Sept. 13, 2012, no pet.) (mem. op., not designated for publication) (explaining 

that because an appellant filed a motion for DNA testing before the effective date 

of the 2011 amendment, he was required to show no fault in the lack of prior 

DNA testing). Thus, because appellant could only benefit from the relaxation of 

article 64.01’s requirements of motions requesting DNA testing, we hold that he 

was not “disadvantaged” and that his ex post facto argument must be rejected. 

See generally Carmell v. Texas, 529 U.S. 513, 522–23, 120 S. Ct. 1620, 1627–

28 (2000) (explaining that prohibited ex post facto laws harm defendants by 

creating or increasing criminal responsibility for an act after the act has been 

committed).

For all of these reasons, we hold that the trial court did not err by denying 

appellant’s third motion for DNA testing, and we overrule his two issues, along 

with the subsidiary arguments contained within them.
16

Conclusion

Having overruled both of appellant’s issues, we affirm the trial court’s order 

denying his third motion for DNA testing.

/s/ Terrie Livingston

TERRIE LIVINGSTON

CHIEF JUSTICE

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

DO NOT PUBLISH

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

DELIVERED: April 10, 2014