                                                                PD-0037-15
                                               COURT OF CRIMINAL APPEALS
                 PD-0037-15                                     AUSTIN, TEXAS
                                             Transmitted 1/5/2015 10:00:05 AM
                                               Accepted 1/15/2015 4:38:34 PM
       IN THE COURT OF CRIMINAL APPEALS OF   TEXAS               ABEL ACOSTA
                                                                         CLERK



ROGER EUGENE FAIN          §
    APPELLANT              §
                           §
                                            JANUARY 15, 2015
V.                         §       NO. _______
                           §
THE STATE OF TEXAS,        §
    APPELLEE               §

    STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE
DECISION OF THE COURT OF APPEALS FOR THE SECOND DISTRICT
OF TEXAS IN CAUSE NUMBER 02-13-00366-CR REVERSING THE
DECISION TO DENY POST-CONVICTION FORENSIC DNA TESTING IN
CAUSE NUMBER 1023944D IN THE 372ND JUDICIAL DISTRICT COURT
OF TARRANT COUNTY, TEXAS; THE HONORABLE WAYNE SALVANT,
JUDGE PRESIDING.


                          § § §

       STATE'S PETITION FOR DISCRETIONARY REVIEW

                          § § §


                          SHAREN WILSON
                          Criminal District Attorney
                          Tarrant County, Texas

                          STEVEN W. CONDER, Assistant
                          Criminal District Attorney
                          State Bar No. 04656510
                          401 W. Belknap
                          Fort Worth, Texas 76196-0201
                          (817) 884-1687
                          FAX (817) 884-1672
                          CCAAppellateAlerts@TarrantCou
                          nty.Com
        IDENTITY OF JUDGES, PARTIES AND COUNSELS

Trial Court Judge: Hon. Scott Wisch, Presiding Judge,
    372nd District Court of Tarrant County, Texas

DNA Proceedings Judge:    Hon. Wayne Salvant, Presiding
    Judge, Criminal District Court No. 2 of Tarrant County,
    Texas (sitting by assignment)

Parties to the Judgment: Appellant, Roger Eugene Fain, and
    the State of Texas

Appellant’s counsels at trial:
    Hon. J. Warren St. John
    801 Cherry Street, Unit 5
    2020 Burnett Plaza
    Fort Worth, Texas 76102-6883

    Hon. Wes Ball
    4025 Woodland Park Blvd., Suite 100
    Arlington, Texas 76013-4338

Counsels for the State at trial:
    Hon. Joe Shannon Jr., former Criminal District
         Attorney, Tarrant County, Texas
    Hon. Greg Miller, Assistant Criminal District
         Attorney, Tarrant County, Texas
    Hon. Alana Minton, former Assistant Criminal District
         Attorney, Tarrant County, Texas
    401 W. Belknap Street
    Fort Worth, Texas 76196-0201

Appellant’s counsel on direct appeal:
    Hon J. Rex Barnett
    105 York Avenue
    Weatherford, Texas 76086




                             i
Counsel for the State on direct appeal:
    Hon. Edward L. Wilkinson, Assistant Criminal District
         Attorney, Tarrant County, Texas
    401 W. Belknap St.
    Fort Worth, Texas 76196-0201

Counsel for Appellant on original DNA motion and appeal:
    Hon. Brian K. Walker
    222 W. Exchange Avenue
    Fort Worth, Texas 76164-8142

Counsel for Appellant on subsequent DNA appeal:
    Hon. Barry J. Alford
    1319 Ballinger Street
    Fort Worth, Texas 76102-3431

Counsel for the State on original and subsequent DNA motion
    and appeal:
    Hon. Steven W. Conder, Assistant Criminal District
         Attorney, Tarrant County, Texas
    401 W. Belknap Street
    Fort Worth, Texas 76196-0201




                             ii
                    TABLE OF CONTENTS

IDENTITY OF JUDGES, PARTIES AND COUNSELS .............. i

TABLE OF CONTENTS ................................... iii

TABLE OF AUTHORITIES .................................. v

STATEMENT REGARDING ORAL ARGUMENT ..................... 1

STATEMENT OF THE CASE ................................. 1

STATEMENT OF PROCEDURAL HISTORY ....................... 2

QUESTIONS FOR REVIEW .................................. 5

ARGUMENT .............................................. 5

    A.   Standards of Reviewing Subsequent Motions
         for Post-Conviction Forensic DNA Testing ..... 5

    B.   Deference to Trial Court’s Determination
         of Factual and Credibility Issues ............ 7

         1.   DNA Results from Oral Swab ............... 8

         2.   Cause of Death - Medical Testimony ...... 10

         3.   Testimony of Danny Smith ................ 11

    C.   Determination of Reasonable Probability ..... 13
         of Innocence

CONCLUSION ........................................... 15

PRAYER ............................................... 15

CERTIFICATE OF SERVICE ............................... 16


                            iii
CERTIFICATE OF COMPLIANCE ............................ 16

APPENDIX (Court of Appeals Opinion) ................... A




                           iv
                 INDEX OF AUTHORITIES

CASES

Ex parte Baker,
 185 S.W.3d 894 (Tex. Crim. App. 2006)............. 5, 6

Ex parte Gutierrez,
 337 S.W.3d 883 (Tex. Crim. App. 2011)............ 8, 13

Ex parte Suhre,
 185 S.W.2d 898 (Tex. Crim. App. 2006)............. 5, 6

Fain v. State,
 2009 WL 2579580 (Tex. App. – Fort Worth 2009,
 pet. refused)........................................ 2

Fain v. State,
 2012 WL 752652 (Tex. App. –- Fort Worth 2012,
 pet. refused)..................................... 3, 4

Fain v. State,
 2014 WL 6840282 (Tex. App. –-
 Fort Worth 2014)...................... 5, 9, 10, 11, 12

Geesa v. State,
 820 S.W.2d 154 (Tex. Crim. App. 1991)............... 14

Kutzner v. State,
 75 S.W.3d 427 (Tex. Crim. App. 2002)................ 13

Rivera v. State,
 89 S.W.3d 55 (Tex. Crim. App. 2002).................. 8

Skinner v. State,
 122 S.W.3d 808 (Tex. Crim. App. 2003)............... 13

Smith v. State,
 165 S.W.3d 361 (Tex. Crim. App. 2005)............... 13


                           v
Whitfield v. State,
 430 S.W.3d 405 (Tex. Crim. App. 2014)............ 8, 13

Wyatt v. State,
 23 S.W.3d 18 (Tex. Crim. App. 2000)................. 12


STATUTES

Tex. Code Crim. Proc. art. 11.07 §4 ................... 6

Tex. Code Crim. Proc. art. 11.071 §5 .................. 6

Tex. Code Crim. Proc. art. 11.072 §9 .................. 6

Tex. Code Crim. Proc. art. 11.073(b)(1)(A) ............ 7

Tex. Code Crim. Proc. art. 11.073(d)(2) ............... 7

Tex. Code Crim. Proc. art. 64.01(b) ................... 6


RULES

Tex. R. App. P. 9.4(e) ............................... 16

Tex. R. App. P. 9.4(i) ............................... 16

Tex. R. App. P. 9.4(i)(1) ............................ 16

Tex. R. App. P. 66.3(b) ............................... 7

Tex. R. App. P. 66.3(c) ........................... 8, 14

Tex. R. App. P. 66.3(e) ........................... 8, 14

Tex. R. App. P. 66.3(f) ........................... 8, 14




                           vi
        IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ROGER EUGENE FAIN             §
    APPELLANT                 §
                              §
V.                            §        NO. _______
                              §
THE STATE OF TEXAS,           §
    APPELLEE                  §


        STATE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:



              STATEMENT REGARDING ORAL ARGUMENT

     The State requests that oral argument be granted

because this case involves important questions of State law

to be decided.



                    STATEMENT OF THE CASE

     This case addresses whether the appellant is entitled

to post-conviction forensic DNA testing of evidence from

his capital murder conviction.      The trial court denied the

appellant’s    testing   request.     The   Court   of   Appeals

partially reversed the trial court’s decision, and ordered


                              1
that DNA testing be conducted on specific evidence.



                 STATEMENT OF PROCEDURAL HISTORY

       The appellant was convicted of the capital murder of

Linda Donahew on December 19, 2007.        See Clerk’s Record

I:9.       The trial court sentenced him to life imprisonment.

See Clerk’s Record I:9.

       The Second Court of Appeals affirmed the appellant’s

conviction; specifically finding that the evidence was

legally and factually sufficient to show:

       •     The appellant killed Linda Donahew;
       •     Her death was caused intentionally; and
       •     Her death occurred in the course of the
             appellant committing or attempting to commit
             aggravated sexual assault.

See Fain v. State, 2009 WL 2579580, pages 1-5 (Tex. App.

– Fort Worth 2009, pet. refused).

       The appellant’s original motion for post-conviction

forensic DNA testing was denied by the trial court on

September 1, 2010.       See DNA Clerk’s Record I:11-12.    The

trial court specifically found that he did not meet the


                                 2
requirements of either article 64.01 or article 64.03 of

the Code of Criminal Procedure for post-conviction forensic

DNA testing because:

    •    He failed to show that there exists a
         reasonable probability that the DNA testing
         would prove his innocence because it is
         extremely   unlikely   that   any   new   DNA
         re-testing technique would provide a more
         accurate or probative result.
    •    He failed to show that there exists a
         reasonable probability that further DNA
         testing would prove his innocence because of
         the Texas Department of Public Safety’s
         Combined DNA Index System (“CODIS”) discovery
         that Defendant’s DNA is a positive match with
         semen found in the victim’s mouth at the time
         of her murder.
    •    A subsequent DNA sample taken from the
         defendant matched the semen found in the
         victim’s mouth at the time of her murder with
         a 99.999% population exclusion.

See Fain v. State, No. 1023944D (Memorandum and Order -

September 1, 2010).

    The Second Court of Appeals affirmed the trial court’s

decision to deny post-conviction DNA testing because the

appellant had failed to show that favorable DNA results

would have resulted in him not being convicted.   See Fain

v. State, 2012 WL 752652, page 19 (Tex. App. –- Fort Worth

                             3
2012, pet. refused) (not designated for publication). 1

    The     appellant     filed       a      second    motion    for

post-conviction forensic DNA testing on April 17, 2013.

See DNA Clerk’s Record I:15-19.           On June 6, 2013, the trial

court denied this motion because the appellant did not meet

the requirements of either article 64.01 or article 64.03

of the Code of Criminal Procedure for post-conviction

forensic DNA testing.      See DNA Clerk’s Record I:25; 2nd

Supplemental DNA Clerk’s Record I:24-27.

    On December 4, 2014, in a 2-1 decision, the Court of

Appeals:

    •      affirmed the trial court’s order denying
           testing on the blood found on the Bic pen and
           in the closet;
    •      reversed the trial court’s order denying
           testing on the hairs found in Ms. Donahew's
           hands, the pubic hair, the blood found on the
           bathroom faucet, Ms. Donahew's fingernail
           clippings, the male DNA discovered on the bra

1   The Court of Appeals also found that the appellant was not
    entitled to post-conviction DNA testing under the former
    “no fault” provision. See Fain v. State, 2012 WL 752652,
    pages 7-9. The Court of Appeals addressed this provision
    despite the fact that the trial court did not consider it
    in denying the appellant’s original DNA testing request.
    See Fain v. State, No. 1023944D (Memorandum and Order -
    September 1, 2010).


                                  4
         and shirt Ms. Donahew wore on the day of her
         death, and the knife.

See Fain v. State, 2014 WL 6840282, page 18 (Tex. App. –

- Fort Worth 2014).



                   QUESTIONS FOR REVIEW

1.   Whether this Court should establish standards for
     subsequent requests for post-conviction forensic
     DNA testing?

2.   Whether the Court of Appeals gave proper deference
     to the trial court’s determination of factual
     issues and application-of-law-to-fact issues that
     turn on credibility or demeanor?

3.   Whether the Court of Appeals properly determined
     that there exists a reasonable probability that
     exculpatory DNA testing of the evidence for which
     the appellant seeks testing would prove his
     innocence?


                         ARGUMENT

A.   Standards of Reviewing Subsequent        Motions     for
     Post-Conviction Forensic DNA Testing

     This Court has held that Chapter 64 does not prohibit

a second or successive motion for post-conviction forensic

DNA testing.   Ex parte Baker, 185 S.W.3d 894, 897-98 (Tex.

Crim. App. 2006); Ex parte Suhre, 185 S.W.2d 898, 899 (Tex.

                             5
Crim. App. 2006); Tex. Code Crim. Proc. art. 64.01(b).       The

Court, however, did not articulate any standards by which

the trial courts should evaluate successive DNA motions.

See Ex parte Baker, 185 S.W.3d at 897-98; Ex parte Suhre,

185 S.W.3d at 899.   This Court should take the opportunity

to determine what standards, if any, a defendant should meet

before re-filing requests to test evidence already rejected

by the convicting trial court.

    All other means of post-conviction relief have a

standard for considering successive requests.       See Tex.

Code Crim. Proc. art. 11.07 §4; Tex. Code Crim. Proc. art.

11.071 §5; & Tex. Code Crim. Proc. art. 11.072 §9.          With

post-conviction DNA motions, there is no mechanism to

prevent a defendant from making the same request to the

convicting trial court on multiple occasions. 2

    Even article 11.073 places a standard on its use which

would limit defendants from re-filing successive requests.



2   The State acknowledges that the habeas limitations on
    successive requests are statutorily imposed and that
    Chapter 64 does not have similar limitations.


                              6
See Tex. Code Crim. Proc. art. 11.073(b)(1)(A).         Under

article    11.073,   a   defendant   must   show   scientific

unavailability at the time of his prior request.     See Tex.

Code Crim. Proc. art. 11.073(d)(2).     This case’s history

underscores why this Court should establish some standard

for     consideration    of    subsequent    requests     for

post-conviction DNA testing; otherwise, a defendant may

take endless “bites at the apple” before he finds a court

willing to agree with his request.

      Thus, the interests of justice suggest that this Court

articulate standards for considering subsequent requests

for post-conviction DNA testing.       See Tex. R. App. P.

66.3(b).


B.    Deference to Trial Court’s Determination of Factual
      and Credibility Issues

      In denying the appellant’s DNA testing request, the

trial court found and concluded that:

      Given   the   previously-tested    DNA   evidence
      inculpating the petitioner and its high-probative
      value, it is unlikely that newer testing of this
      evidence or any other evidence would provide
      results which would exonerate him.

                              7
See DNA Clerk’s Record I:25; 2nd Supplemental DNA Clerk’s

Record I:24-27.

     When reviewing Chapter 64 DNA rulings, an appellate

court should give the trial court almost total deference

to its determination of historical fact issues and (2)

application-of-law-to-fact issues that turn on credibility

or demeanor.   Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim.

App. 2002); Ex parte Gutierrez, 337 S.W.3d 883, 895 n.34

(Tex. Crim. App. 2011); Whitfield v. State, 430 S.W.3d 405,

424 n.16 (Tex. Crim. App. 2014) (Alcala J., concurring).

In resolving this case, the Court of Appeals departed from

this standard by not affording the convicting trial court

deference in its determination of the historical facts and

its credibility assessments.       See Tex. R. App. P. 66.3(c),

66.3(e) & 66.3(f).



1.   DNA Results from Oral Swab:

     The Court of Appeals mischaracterized the DNA results

of the oral swab recovered from inside Ms. Donahew’s mouth.


                               8
The Court opined that:

    DNA of both Appellant and an unknown male was found
    at the scene and inside Donahew’s mouth.        But
    there was no way to determine when the DNA was
    deposited or in what order it was deposited.

See Fain v. State, 2014 WL 6840282, page 13.

    Contrary to the Court’s characterization, the DNA

analyst (Connie Patton) did not find a second male profile

on the oral swab; rather, her analysis revealed three minor

alleles which did not originate from either the appellant

or Ms. Donahew.   See 2nd Supplemental DNA Clerk’s Record

I:22-23; Trial Reporter’s Record X:217-18.        Ms. Patton

observed that it was possible that the appellant merely

transferred foreign DNA already present on his body into

Ms. Donahew’s mouth.   See Trial R.R. X:237-38.   By finding

this evidence most probative of guilt, the trial court

treated Ms. Patton’s trial testimony as credible and

dismissed the presence of minor alleles as establishing

multiple depositors.     See DNA Clerk’s Record I:25; 2nd

Supp. I:24-27.

    The Court of Appeals’ “multiple depositors on the oral


                             9
swab” theory has no factual basis and does not give any

deference to the trial court’s determination that the oral

swab evidence was highly probative of the applicant’s

guilt.



2.   Cause of Death – Medical Testimony

     The Court of Appeals mischaracterizes the medical

testimony regarding Ms. Donahew’s stabbing.               The Court

stated that:

     The medical testimony, however, described a fatal
     stab wound inflicted on Donahew while she was still
     alive.

See Fain v. State, 2014 WL 6840282, page 13.              Dr. Nizam

Peerwani (the medical examiner) actually testified that,

based on Ms. Donahew’s facial plethora petechiae, her

death-causing       strangulation    occurred    before    she   was

stabbed.    See Trial Reporter’s Record VIII:73-74.

     The    Court    further   implies    that    Ms.     Donahew’s

strangulation might even have occurred separately from her

stabbing:

     Although Donahew was strangled and strangulation

                                10
     was a cause of death, Dr. Peerwani testified that
     the knife wound to Donahew’s neck was intended to
     cause her death.

See Fain v. State, 2014 WL 6840282, page 16.            Dr. Peerwani

testified    that,    while    the      strangulation   caused   Ms.

Donahew’s death, the stabbing occurred at or near the time

of her death.    See Trial R.R. VIII:73-74.

     The Court of Appeals gave no deference to the prior

factual determinations in analyzing the medical testimony.



3.   Testimony of Danny Smith:

     Witness Danny Smith was housed in the Eastham Unit with

the appellant.       See Trial Reporter’s Record IX:104.         Mr.

Smith    testified    that    he   had    conversations   with   the

appellant who admitted that:

     •    He strangled Linda Donahew while having
          consensual sexual relations;
     •    He killed Ms. Donahew to stop her from going
          to the authorities; and
     •    He drove an old Ford pickup truck at the time
          of Ms. Donahew’s death.

See Trial Reporter’s Record IX:108-09.           Mr. Smith’s trial

testimony was admitted without objection by the appellant.

                                   11
See Trial Reporter’s Record IX:108-09.

    The Court of Appeals dismisses Mr. Smith’s testimony

as “purchased and suspect”.         See Fain v. State, 2014 WL

6840282, page 13.   Such a wholesale dismissal of a witness’

testimony is outside the purview of an appellate court.

See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)

(any discrepancies or qualms about a witness’ truthfulness

is for the fact-finder to resolve in its role as exclusive

judge of the credibility of witnesses and the weight to be

given their testimony).     The Court showed no deference to

the credibility determinations made by the fact-finders in

this case. 3

    In sum, the Court of Appeals did not apply the proper

standard of review because it gave no deference to trial

court’s factual or credibility determinations.




3   Moreover,   the   Court   of   Appeals  also   uses   its
    mischaracterization of the medical testimony to justify
    dismissing Mr. Smith’s testimony. See Fain v. State, 2014
    WL 6840282, pages 13-14.


                               12
C.   Determination of Reasonable Probability of Innocence

     In denying the appellant’s DNA testing request, the

trial court found and concluded that:

     Given   the   previously-tested    DNA   evidence
     inculpating the petitioner and its high-probative
     value, it is unlikely that newer testing of this
     evidence or any other evidence would provide
     results which would exonerate him.

See DNA Clerk’s Record I:25; 2nd Supplemental DNA Clerk’s

Record I:24-27.

     When reviewing Chapter 64 DNA rulings, an appellate

court reviews de novo all other application-of-law-to-fact

questions that do not turn on credibility.        Ex parte

Gutierrez, 337 S.W.3d at 895; Whitfield v. State, 430 S.W.3d

at 424.   To be entitled to post-conviction DNA testing, a

defendant must establish by a preponderance of the evidence

that there exists a reasonable probability that exculpatory

DNA testing of the evidence for which he seeks testing would

prove his innocence.    Smith v. State, 165 S.W.3d 361,

363-64 (Tex. Crim. App. 2005); Skinner v. State, 122 S.W.3d

808, 811 (Tex. Crim. App. 2003); Kutzner v. State, 75 S.W.3d

427, 439 (Tex. Crim. App. 2002).

                             13
    Two significant facts demonstrating the appellant’s

guilt were that:

    •    His DNA profile was found in the sperm sample
         recovered from Ms. Donahew’s mouth; and
    •    He confessed to Mr. Smith that he killed Ms.
         Donahew.

By purposefully discounting the evidence favorable to the

State, the Court of Appeals removed the burden of proof from

the appellant and placed it on the State.   Thus, the Court

of Appeals departed from the standards adopted by this Court

in resolving the “reasonable probability of innocence”

prong.   See Tex. R. App. P. 66.3(c), 66.3(e) & 66.3(f).

    The Court of Appeals’ review actually reads like a

resurrection of the long-rejected alternate reasonable

hypothesis construct.   See Geesa v. State, 820 S.W.2d 154,

161 (Tex. Crim. App. 1991).        No authority addressing

“reasonable probability of innocence” under article 64.03

requires that the State disprove every possible alternate

theory before a convicting trial court can reject a request

for post-conviction DNA testing.

    In sum, the Court of Appeals misapplied the standard

                             14
of review for considering whether there exists a reasonable

probability that post-conviction DNA testing would prove

the appellant’s innocence.



                         CONCLUSION

    This Court should provide standards for considering

subsequent   requests   for    post-conviction   DNA   testing.

Additionally, the Court of Appeals misapplied the proper

standard of review and acted as a “super-factfinder” in

reversing    the   trial       court’s   decision      to   deny

post-conviction DNA testing.



                              PRAYER

    The State prays that this Court grant review in this

cause, reverse the decision of the Court of Appeals, and

affirm the trial court’s decision.


                              Respectfully submitted,

                              SHAREN WILSON
                              Criminal District Attorney
                              Tarrant County, Texas


                                15
                            /s/ Steven W. Conder
                            STEVEN W. CONDER, Assistant
                            Criminal District Attorney
                            State Bar No. 04656510
                            401 W. Belknap
                            Fort Worth, Texas 76196-0201
                            (817) 884-1687
                            FAX (817) 884-1672
                            CCAAppellateAlerts@TarrantCou
                            nty.Com


                  CERTIFICATE OF SERVICE

    A   true   copy   of   the        State's   brief   have   been

electronically served on opposing counsel, the Hon. Barry

J. Alford, 1319 Ballinger Street, Fort Worth, Texas

76102-3431 (barryalford13@gmail.com), on this, the 5th day

of January, 2015.


                            /s/ Steven W. Conder
                            STEVEN W. CONDER



                CERTIFICATE OF COMPLIANCE

    This document complies with the typeface requirements

of Tex. R. App. P. 9.4(e) because it has been prepared in

a conventional typeface no smaller than 14-point for text

and 12-point for footnotes, and             with the word-count

                                 16
limitations of Tex. R. App. P. 9.4(i) because it contains

approximately 2287 words, excluding those parts exempted

by Tex. R. App. P. 9.4(i)(1), as computed by Microsoft

Office Word 2010 - the computer program used to prepare the

document.

                              /s/ Steven W. Conder
                              STEVEN W. CONDER


c18.fain roger eugene.pdr/state




                                  17
A
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00366-CR


ROGER EUGENE FAIN                                                 APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

         FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1023944D

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      In one point, Appellant Roger Eugene Fain appeals the trial court’s order

denying his second motion for forensic DNA testing of evidence related to his

capital murder conviction. 2 Because we conclude that the trial court erred by

     1
      See Tex. R. App. P. 47.4.
     2
       See Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006); Tex. Penal Code
Ann. § 19.03(a)(2) (West Supp. 2014).
denying the motion, we reverse the trial court’s order and remand this case for a

new hearing.

Background Facts

      This is not Appellant’s first proceeding in this court. In affirming his 2007

conviction and life sentence for capital murder, 3 we provided details related to the

murder of Linda Donahew:

      Bonnie Bishop shared a house with her sister, Donahew. On June
      1, 1987, Bishop left work and arrived home at approximately 8:00
      p.m. She entered the house to find her sister’s nude and blood-
      covered body lying on the floor in the bedroom closet.

            The autopsy revealed that Donahew had died from manual
      strangulation and that a secondary cause of death was a stab
      wound to her neck. The postmortem examination also revealed
      several hairs found clinched in her hands, DNA artifacts in her
      mouth, and three foreign pubic hairs in the genital area.

            Approximately fourteen years later, in August 2001, a DNA
      sample was taken from Appellant, who was incarcerated for an
      unrelated crime. The sample was entered into the Combined DNA
      Index System (CODIS) of the Texas Department of Public Safety
      (DPS). Four years later, in October 2005, the cold case of
      Donahew’s murder was reopened, and the DNA samples acquired
      during the examination of her body were uploaded into CODIS and
      were found to match the DNA profile of Appellant.

             . . . At trial, the State relied on the DNA evidence, testimony
      from a witness who saw a truck similar to that owned by Appellant at
      the time of the offense parked in front of Donahew’s house at the
      time of the offense, the testimony of an inmate, Danny Smith, who
      claimed that Appellant had confessed to him in jail, testimony that

      3
       Fain v. State, No. 02-08-00002-CR, 2009 WL 2579580, at *1, 9 (Tex.
App.—Fort Worth Aug. 20, 2009, pet ref’d) (mem. op., not designed for
publication).



                                         2
Donahew had previously been seen in the company of Appellant,
and testimony that on the day of her death she had said that she
was worried about meeting someone who wanted to look at a truck
she was selling.

      Dr. Nizam Peerwani, the medical examiner who performed the
autopsy and forensic examination of Donahew’s body, testified that
he took oral swabs from her mouth and that they contained DNA
material. . . . Kelly Solis testified that she was a DNA analyst for the
DPS CODIS lab . . . . She testified that the DNA samples from the
oral swabs taken by Dr. Peerwani matched Appellant’s DNA profile.

       Constance Patton testified that she was a senior forensic
biologist and DNA technical leader for the medical examiner’s office
crime laboratory in Fort Worth. She testified that she had examined
the samples from the oral swabs taken by Dr. Peerwani and that the
results of her examination showed that the samples contained DNA
material consistent with the DNA of Donahew and a mixture
containing one DNA sample consistent with that of Appellant and a
sample of male DNA foreign to both Donahew and Appellant.
Patton testified that it could not be determined whether Appellant’s
DNA had been contributed before or after the other male DNA or
how long it had been present. She also testified that she had tested
a portion of a towel taken from Donahew’s house. The towel tested
presumptively for blood and also for a mixture of DNA from
Donahew. She testified that a sample of male DNA from Ronald
Nix, a boyfriend of Donahew, could not be excluded from matching
the sample on the towel. Patton also found a sperm stain on the
comforter from Donahew’s bed, the DNA profile of which also
matched Nix’s sample.

      ....

      Detective Jim Ford testified that he had requested DNA testing
of [an] unknown pubic hair found on Donahew’s body. The test
showed that Nix could not be eliminated as a contributor of the hair.

      ....

       Ernest Fain, Appellant’s brother, testified that in 1987,
Appellant drove a mid–1970s white Ford pickup truck and that the
truck had a black tool box and PVC piping attached to its bed. . . .




                                   3
            Sheila Nelson testified that she lived next door to Donahew in
      1987 . . . [and] [o]n the day of Donahew’s murder, Nelson and her
      husband left the house at approximately 5:15 p.m. to take a walk.
      They noticed a white Ford pickup truck parked on the street . . .
      between [Nelson’s and Donahew’s houses]. She testified that it was
      an older model truck with a tool box. The truck was still there when
      she returned from her walk about fifteen to twenty minutes later. . . .

            ....

             Michael Higham testified that in the late spring and summer of
      1987, he was the detail shop manager of Pleasant Ridge Car Wash
      in Arlington. In the late spring or early summer of 1987, Donahew
      took her car in for detailing. When he had finished with the car, he
      went to the horse stables to pick her up and take her back to her car.
      She was with a man whom he identified as Appellant. . . .

            ....

             Danny Smith, a sixty-three-year-old inmate who at the time of
      trial was serving forty-five years’ confinement for involuntary
      manslaughter, . . . testified that he knew Appellant from having been
      in prison with him. . . . Appellant told Smith that he had been having
      sex with Donahew and had unintentionally strangled her during sex.
       ...

            ....

            . . . Smith testified that Appellant had shared news articles
      from newspapers and from the internet about the Donahew murder
      case.

             Ronald Nix testified that he had dated Donahew from
      February 1987 until her death. . . . He testified that shortly before
      her death, he had been at a club with Donahew and had seen her
      talking with a man whom Nix identified as Appellant. 4

      In the appeal from his conviction, we rejected Appellant’s argument that

the evidence was legally and factually insufficient to show that he committed the

      4
       Id. at *1–4 (internal quotation marks omitted).



                                         4
murder, although we noted that the evidence was “equivocal.” 5          Indeed, the

evidence against Appellant was far from overwhelming. As we noted,

              Smith admitted that he was worried about the possibility of
      dying in prison and that he had lost various appeals in his case, up
      to and including his appeals in federal court and the United States
      Supreme Court. He also admitted that he had made contact with the
      Tarrant County District Attorney’s office regarding testifying against
      Appellant, calling himself a “crucial State’s witness” and offering his
      testimony in exchange for benefits to him, including help with his
      sentence. He testified that he had wanted a guarantee in writing of
      help “in this and possibly other offenses currently unsolved.” He
      also admitted to having offered himself as a State’s witness in other
      cases. In exchange, he had asked to be removed from his current
      prison unit and placed in a unit with better medical facilities. He also
      admitted that he had, in fact, been moved to a geriatric medical
      facility in the Terrell Unit.

              Smith testified that when he was interviewed by Appellant’s
      trial counsel, he had told them that he did not know why he had
      been brought to Tarrant County and that he did not have any
      information that would help the State regarding Appellant’s alleged
      killing of Donahew. Smith also denied knowing that one of
      Appellant’s attorneys was, in fact, an attorney. Later, however,
      Smith admitted that he had previously written to the same attorney
      requesting help in his case. 6

Additionally,

            Donald Thweatt testified that in 1987 he owned two horses,
      which he stabled at Braddock’s Stables in Arlington. Around June 1,
      1987, he saw Donahew, who also kept horses there, at the stables.
      She was not driving her usual vehicle but was with a male in a 1970s
      white Ford pickup. He described the man as being about six feet tall
      and weighing around 180 pounds with shoulder-length hair and
      glasses. On cross examination, Thweatt said that Donahew and the

      5
       Id. at *5.
      6
       Id. at *4.



                                         5
      man were unloading clear plastic bags of cedar shavings. He also
      described the man as having an untrimmed and unkempt beard.
      Thweatt testified that he could not remember the exact date, but that
      it was “sometime in the late spring of 1987.”

            ....

            Ronald Nix testified that . . . [i]n May 1987, he and Donahew
      had taken a vacation together to Mexico. A picture taken at the time
      of the trip showed that in May 1987, Nix had dark, curly hair and
      wore a full beard. 7

Other testimony noted in our original opinion included the following:

             Luke Kortegast, who testified by videotaped deposition
      because he was on active duty in the military and scheduled to be
      deployed overseas, testified that at the time of the offense, when he
      was seventeen years old, he lived with his parents next door to
      Donahew, whom he described as attractive. He often saw a white
      pickup truck parked at Donahew’s house from the winter of 1986
      through the early spring of 1987. He described the truck as a mid-
      to-late 1970s white pickup truck with large tires and a raised
      suspension. He thought that it was a four-wheel drive truck and in
      “pretty good shape.” He testified that on occasion the truck had
      been at the house overnight. He did not remember the truck[’]s
      having a toolbox or a PVC pipe attached to its bed.

             He described the driver as a white male, approximately six
      feet tall and weighing between 175 and 200 pounds, with long dark
      brown hair and a beard that ranged from a few days’ stubble to a full
      beard. Kortegast testified that the man usually wore a baseball cap
      and aviator-type sunglasses.

              At some point in the spring, Kortegast stopped seeing the
      truck at Donahew’s house, but he testified that he did see it parked
      in the driveway one more time on the day of Donahew’s murder. He
      testified that the truck was in the driveway at approximately 10:30
      a.m. the day of her death. He was unable to identify Appellant as
      the driver of the truck, either at trial or from a photo spread.
      Kortegast also testified that Donahew had frequent visitors in

      7
       Id. at *3–4.



                                         6
      addition to the bearded man.

             . . . Appellant’s brother [Ernest], . . . described [Appellant’s
      truck] as a standard truck, not a raised four-wheel-drive vehicle. He
      also testified that he had seen Appellant approximately a dozen
      times during 1986 and 1987 and that he had never known Appellant
      to have a beard. He also testified that the pickup was “very beat up.”

             . . . . [After their walk, Nelson] and her husband went out to
      eat, and when they returned at about 8:30 p.m., the pickup was
      gone. Nelson testified that Donahew had had a lot of friends and
      quite a bit of company.

             Bishop, Donahew’s sister, testified that in November 2005 she
      had been shown a photo spread containing Appellant’s photograph.
      After looking at it for approximately twenty minutes, she had told
      Detective Ford that she did not recognize anyone in it. After the
      photo array was shown to her other sister, however, Bishop asked to
      see it again, and she then told Ford that it looked like someone who
      had come up to Donahew in a restaurant and bar called John B’s.
      Bishop also testified that Donahew had broken up with Nix some
      time before her death. 8

      Although Higham identified Appellant as the man he saw with Donahew at

the stables, he told Arlington police officer William Zimmerman that he had talked

to Mrs. Braddock for a few minutes “until Donahew arrived with a white male who

was driving a pale blue 1973 or 1974 pickup truck with wide spoked wheels.” 9

      The only evidence that Appellant strangled Donahew is Smith’s testimony

of Appellant’s purported confession of consensual sexual activity with consensual

autoerotic choking that accidentally resulted in strangling.      But there is no



      8
       Id. at *2–3.
      9
       Id. at *4.



                                        7
evidence of Appellant’s using a knife, although Donahew was also fatally

stabbed. Additionally, we noted in our original opinion,

             Linda Reed testified that Donahew was a close friend and had
      come to her house for a visit around 11:00 a.m. on the day she died.
      Donahew left around 3:00 p.m. that afternoon, and as she left, she
      told Reed that she was nervous because later she was going to
      show her pickup truck to a man she had met at the stables and that
      he might buy it from her. Reed testified that Donahew had a bad
      feeling about the meeting. 10

      Following our opinion affirming the conviction, Appellant filed his first

motion for postconviction forensic DNA testing, and in September 2010, the trial

court denied that motion. 11 In 2012, we affirmed the order denying Appellant’s

first motion. 12 We explained, in part, that the trial court did not err by denying

Appellant’s motion to test several items—including six head hairs clenched in

Donahew’s hands, loose pubic hairs combed from Donahew’s pubic hair, blood

on a water knob of a bathroom faucet, Donahew’s fingernail clippings, male DNA

discovered on the bra and shirt Donahew wore on the day of her death, and a

knife, because as to those items, Appellant failed to establish “no fault” in the

items not being previously tested. 13


      10
        Id. at *8.
      11
       Fain v. State, No. 02-10-00412-CR, 2012 WL 752652, at *1 (Tex. App.—
Fort Worth Mar. 8, 2012, pet. ref’d) (Fain II).
      12
        Id. at *21.
      13
        Id. at *5–18.



                                         8
      In April 2013, Appellant acting pro se, filed his second motion for post-

conviction DNA testing of items that “ha[d] not previously been tested.”

Specifically, he asked for testing of, among other items, hairs from Donahew’s

hands, from a comforter, and from a shirt; pubic hairs from the autopsy; fibers

from Donahew’s body; blood samples from carpet, from a faucet, and from a ball

point pen; and a comb from a bathroom floor. Appellant contended, “There is

untested biological material in the State’s possession that may well contain the

identity of the person(s) that are responsible, but has never been subjected to

DNA testing.” He also averred, “If DNA other than [Appellant’s] is detected, [that]

could corroborate the theory of someone else[’]s involvement in this case . . . .”

      The State confirmed that “evidence exists which may contain biological

material” but contended that probative DNA evidence found on Donahew

inculpated Appellant. After the State responded to Appellant’s second motion, in

June 2013, the trial court denied the second motion because Appellant did not

meet the requirements of either article 64.01 or article 64.03 of the code of

criminal procedure. 14 The trial court adopted the State’s proposed findings of

fact and conclusions of law, as follows:




      14
        See Tex. Code Crim. Proc. Ann. arts. 64.01, 64.03 (West Supp. 2014).



                                           9
                          FINDINGS OF FACT

             ....

      5. Oral swabs taken from Linda Donahew’s mouth during the
post-mortem sexual assault examination contained semen from an
unknown individual. . . .

     6. On October, 14, 2005, the Tarrant County Medical
Examiner’s Office conducted STR DNA testing on the oral swab. . . .

      ....

      8. The STR profile for the sperm fraction contained a mixture
of two individuals—Ms. Donahew and an unknown contributor. . . .

        9. On October 18, 2005, the Texas Department of Public
Safety CODIS Laboratory ran a routine DNA database search which
identified a match between the oral swab’s unknown male
contributor and [Appellant’s] previously submitted DNA specimen.
 ...

      10. On December 19, 2005, the Tarrant County Medical
Examiner’s Office conducted STR DNA testing on a saliva swab
taken from [Appellant]. . . .

       11. The DNA analyst concluded that [Appellant] cannot be
excluded as the contributor of the male component of the sperm
fraction mixture. . . .

       12. The DNA analyst calculated that at least 99.999% of the
Caucasian, African-American, and Southwestern Hispanic
populations can be excluded as a possible contributor to the sperm
fraction mixture. . . .

     13. [Appellant] cannot be excluded as the contributor of the
most significant biological evidence—the semen found in Ms.
Donahew’s mouth.

       14. Given the previously-tested DNA evidence inculpating
[Appellant] and its high-probative value, it is unlikely that newer
testing of this evidence or any other evidence would provide results
which would exonerate him.



                                10
            15. [Appellant] does not meet the article 64.01 requirements
      for post-conviction forensic DNA testing.

            16. [Appellant] does not meet the article 64.03 requirements
      for post-conviction forensic DNA testing.

                            CONCLUSIONS OF LAW

            ....

            3. It is unlikely that newer testing of this evidence or any other
      evidence would provide results which would exonerate [Appellant].
      ...

            ....

            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. Given the previously-tested DNA evidence inculpating
      [Appellant] and its high-probative value, it is unlikely that newer
      testing of this evidence or any other evidence would provide results
      which would exonerate him.

Appellant brought this appeal.

The Denial of Appellant’s Motion

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

material under a bifurcated standard. 15 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




      15
       Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002), cert. denied,
539 U.S. 978 (2003).



                                        11
on credibility and demeanor of witnesses. 16 The trial court did not receive live

testimony on Appellant’s second motion for DNA testing; we do not have a

reporter’s record related to the motion.

      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. 17

Such a motion must be accompanied by an affidavit that is sworn to by the

convicted person and that contains facts in support of the motion. 18           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.” 19

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

identity was an issue in the case and 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 in


      16
        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).
      17
       See Tex. Code Crim. Proc. Ann. art 64.01(a)(1), (a-1); State v.
Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014).
      18
        Tex. Code Crim. Proc. Ann. art. 64.01(a-1).
      19
        Id. art. 64.01(b); see Swearingen, 424 S.W.3d at 36.



                                           12
question. 20   Evidence that could establish the possibility of another DNA

contributor to the scene of the crime does not meet this requirement when

significant evidence supports the defendant’s guilt. 21

      But in the case now before this court, the evidence of Appellant’s guilt was

far from overwhelming. His identity as the killer was hotly contested. DNA of

both Appellant and an unknown male was found at the scene and inside

Donahew’s mouth.      But there was no way to determine when the DNA was

deposited or in what order it was deposited. DNA of Nix was also found. A truck

was seen outside Donahew’s home on the day of her death, but the truck was

not definitively connected to a specific person. The only evidence of Appellant’s

killing Donahew was the purchased and suspect testimony of Smith that

Appellant had confessed to engaging in consensual sexual activity with Donahew

and accidentally strangling her. The medical testimony, however, described a

fatal stab wound inflicted on Donahew while she was still alive. It was described




      20
       Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (2)(A); Swearingen, 424
S.W.3d at 38 (“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).
      21
        See Swearingen, 424 S.W.3d at 38 (noting that when there is a
“mountain of evidence” against the defendant, proof of another DNA contributor
at the scene is not enough to exonerate him); Qadir v. State, No. 02-13-00308-
CR, 2014 WL 1389545, at *4 (Tex. App.—Fort Worth Apr. 10, 2014, no. pet.).



                                         13
as a wound intended to cause her death.              Even Smith’s testimony did not

mention a knife.

      Importantly, there was testimony that Donahew was concerned about an

appointment to show her pickup truck to a man she had met at the stables who

had said he might buy it from her. Nix had testified that he was at a club with

Donahew shortly before her death and had seen her talking with a man whom

Nix identified as Appellant. Nix testified that Donahew had given Appellant her

phone number. This is not evidence that Appellant was the man Donahew had

met at the stables, although neither is it evidence that she did not meet him

originally at the stables.

      We upheld the denial of Appellant’s first request for DNA testing because

he did not sustain his burden under the former law to show that he was

blameless in the failure to perform the DNA tests before the trial. 22 The law has

changed since the first request, and Appellant no longer bears that burden. The

material Appellant asks to have tested in his second motion meets the

requirements of the current articles 64.01 and 64.03 of the code of criminal

procedure. Article 64.03 provides,

             (a)   A convicting court may order forensic DNA testing under
      this chapter only if:

                    (1)      the court finds that:


      22
        Fain II, 2012 WL 752652, at *18.



                                            14
                          (A)    the evidence:

            (i) still exists and is in a condition making DNA testing
      possible; and

             (ii) has been subjected to a chain of custody sufficient to
      establish that it has not been substituted, tampered with, replaced,
      or altered in any material respect; and

                          (B)    identity was or is an issue in the case; and

            (2)   the convicted person establishes by a preponderance of
      the evidence that:

             (A) the person would not have been convicted if exculpatory
      results had been obtained through DNA testing; and

             (B) the request for the proposed DNA testing is not made to
      unreasonably delay the execution of sentence or administration of
      justice.

             ....

             (c) If the convicting court finds in the affirmative the issues
      listed in Subsection (a)(1) and the convicted person meets the
      requirements of Subsection (a)(2), the court shall order that the
      requested forensic DNA testing be conducted. 23

      Among the items that Appellant asks to be tested are untested hairs

clutched in Donahew’s hand and pubic hair found in her pubic area. One of the

hairs in her hand was identified as dog hair. Other hairs from her hand were

consistent with either the hair of Donahew or that of her sister, Bishop. One hair

from her hand, however, was not matched to Donahew, Bishop, or Appellant.

Logic dictates a probability that the hair clutched in her hand is that of her killer.


      23
        Tex. Code Crim. Proc. Ann. art. 64.03.



                                         15
There is no suggestion of multiple assailants. Indeed, the evidence indicates a

single assailant. As for the blood on the bathroom faucet handle, the medical

examiner tied the only bleeding wound directly to Donahew’s death. The blood

was never tested, although it is possible to test the blood to determine whether it

was contributed by a single person or whether the blood contains DNA from

more than one donor.

      Identity of the killer, as opposed to sexual partner, was hotly contested.

Three men contributed DNA. Two men contributed DNA found in the oral swabs,

Appellant and an unknown male, although the evidence supports a determination

that there was a single assailant. Oral swabs taken by Dr. Peerwani showed that

the samples contained DNA material consistent with the DNA of Donahew and a

mixture containing one DNA sample consistent with that of the Appellant and a

sample of male DNA foreign to both Donahew and Appellant.                  Although

Donahew was strangled, and the strangulation was a cause of death, Dr.

Peerwani testified that the knife wound to Donahew’s neck was intended to

cause her death.

      Evidence that exculpates the innocent and ties the guilty to Donahew at

the time of her death cannot be held to merely “muddy the waters.”             If the

contributor of the untested hair in Donahew’s hands is identified, for the first time

in this case, we would know whether Nix, Appellant, or the unidentified male was

with Donahew at the time of her death when she pulled hairs from his head.

Additionally, identifying DNA other than Donahew’s in the blood on the bathroom


                                         16
faucet handle would be compelling evidence of the identity of the assailant, since

the bleeding neck injury necessarily connects to Donahew’s death.

      The Texas Court of Criminal Appeals instructs us that

      [t]he legislature’s decision to broaden the scope of appeals to the
      courts of appeals is a significant factor in assessing the authority of
      those courts to review the article 64.04 findings.

            We think that the courts of appeals have been given authority
      to consider the sufficiency of the evidence as well as other grounds
      of appeal. The only limit that the statute placed on those courts was
      that they would not have jurisdiction of DNA-testing appeals in
      death-penalty cases. 24

      It is unlikely that a jury would have convicted Appellant of Donahew’s

murder had evidence that the DNA recovered from the hair clutched in

Donahew’s hands or from the blood on the faucet excluded Appellant as the

donor.     Dr. Peerwani testified that the assailant inflicted the knife wound on

Donahew’s neck for the purpose of causing her death. Discovering the donor of

DNA mixed with Donahew’s blood on the knife would be compelling evidence of

guilt in causing Donahew’s death. The presence of DNA other than Appellant’s

would compellingly exculpate Appellant.

      There is no way to tell from the record whether the blood on the Bic pen

and in the closet was deposited in connection with Donahew’s death.             We

therefore overrule Appellant’s issue as to those items. But the trial court erred by

denying Appellant’s request for DNA testing of the hairs in Donahew’s hands, the


      24
         Whitfield v. State, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).


                                        17
pubic hair, blood on the bathroom faucet, Donahew’s fingernail clippings, male

DNA discovered on the bra and shirt Donahew wore on the day of her death, and

the knife. We therefore sustain Appellant’s issue as to all those remaining items.

Conclusion

      We sustain Appellant’s sole issue in part and reverse in part the trial

court’s order denying his second motion for DNA testing. Specifically, we affirm

the order as to the blood found on the Bic pen and in the closet, but we reverse

the order as to the hairs in Donahew’s hands, the pubic hair, blood on the

bathroom faucet, Donahew’s fingernail clippings, male DNA discovered on the

bra and shirt Donahew wore on the day of her death, and the knife. We remand

this case to the trial court for further proceedings in accordance with this opinion.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

LIVINGSTON, C.J., dissents without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 4, 2014




                                         18
