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




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


     APPELLEE'S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF: THE!
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS IN CAUSE N0.03-T35B05B9iCR:-M:R
REVERSING THE DECISION TO DENY APPELLEE POST-CONVICTION FORENSIC DNA TESTING
IN CAUSE NUMBER 95-112-K277 IN THE 277TH JUDICIAL DISTRICT COURT OF WILLIAMSON
COUNTY, TEXAS; THE HONORABLE DOUG SHAVER, VISITING JUDGE.




                                        §§§§

                    APPELLEE'S PETITION FOR DISCRETIONARY REVIEW            RECEIVED IN
                                                                          COURT OF CRIMINAL APPEALS
                                        $§§§
                                                                               MAY 22 2015

                                          Prepared By:                     Abe! ACOSta, Clerk
                                          Roger Eugene Fain
                                          TDCJ-CID #700474
                                          Petitioner/Appellee
                                          William G.   McConnell   Unit
                                          3001 South Emily Drive
                                          Beeville, Texas 7B102

                                                                              FILED IN
                                                                   COURT OF CRIMINAL APPEALS
                                                                             MAY 22 2015

                                                                          Abel Acosta, Clerk
                                     TABLE OF CONTENTS



                                                                               PAGES
ITEMS
                                                                               ~       '   -.-
                                                                                   : •£..:
Table of Contents

Identity Sf"badges, Parties and Counsels.                                           ii- iii


Index of Authorities                                                                  iv

Petition For Discretionary Review                                                     1

Statement Regarding Oral Arguments                                      '             1

Statement of Procedural History                                                       1- 2       .

                                                                                      2
Questions For Review

Grounds For Relief                                                                    2


        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       Ground For Relief No,     1                      3-4

        Argument & Authorities       Ground For   Relief No,   2                      4-5

        Argument & Authorities       Ground For Relief No,     3                      5-6-7-8-9

        Argument & Authorities       Ground For Relief No,     4                      9-10

Prayer                                                                                10

Certificate Of Mailing                                                                10

Verification                                                                          11

Appendix: MEMORANDUM OPINION, of the Courttof Appeals, Third District
          of Texas, Austin, Cause No. 03-T3-005B9-CR, Delivered Mat 7th 2015          12


             ROCHE BIOMEDICAL LABORTORIES, Certificate of Analysis
             Delivered on January 20th 1995                                           12
                       IDENTITY OF JUDGES, PARTIES AND COUNSELS




    Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete

list of names of all interested parties follows:

Trial Court Judge:  Hon. John R. Carter, Presiding Judge, 277th Judicial
     District Court of Williamson County, Texas

DNA Prceedings Judge: Hon. Doug Shaver, 277th Judicial District Court,
     Williamson County, Texas

Parties to the Judgement: Appellant, The State of Texas, and Appellee Roger
     Eugene Fain

Appellee's counsel at trial: Hon. Mike Davis
                                 1717 North IH 35
                                 Round Rock,   Texas7B664-2901

Counsels for the State at trial:
     Hon. Ken Anderson, former District Attorney Williamson County, Texas
     Hon. Michael Jergins, Assistant District Attorney, Williamson County, Texas
     Hon. Jana McCoun,:>former Assist.DA Williamson County, Texas

Appellee's counsel on direct appeal:
     Hon. David Schulman, Austin, Texas

Counsel for the State on direct appeal;
     Hon. John Bradley, former Assist. DA Williamson County, Texas

Counsel for Appellee on original DNA appeal:
     Hon.   Russell D. Hunt, Jr.
     707 Rock Street
     Georgetown, Texas      7B626-5718

Appellee was ProSe on original direct appeal!

Counsel for Appelle on subsequent DNA Motion:
     Hon. Keith Lauerman(trial court hearing)
     107 N. Lampasas Str.
     Round Rock, Texas  7B664

Counsel for Appellee on subsequent DNA direct appeal:
     Hon. M.Ariel Payan
     1012   Rion   Grande
     Austin,   Texas    78701

Counsel for the State on original DNA Hearing;
     Jana McCown, former Assist.DA Williamson County, Texas




                                          li
Counsels for the State on subsequent DNA Hearing:
     Hon.'Jana Duty-Hunsicker, District Attorney for Williamson County, Texas
     Hon. Deni SL Garcia, Assist.DA for Williamson County, Texas




                                       111
                                INDEX   OF AUTHORITIES


ITEM                                                           PAGE


CASES


Ex Parte Kutzner, 75 S.W.3d 427(Tex.Crim.App. 2002)              5

Ex Parte Suhre',: 1B5 S.W.3d 898(Tex .Crim. App .2006)           2

Fain v. State, 986 S.W.2d 666(Tex.App. Austin 1998)              1

Fain v. State, 2014 WL 6B40282(Tex. App,;,Ft? -Worth 2014)       4

In re Fain, 83 S.W.3d B85(Tex.App. Austin 2002)                2-6-9

In re Morton, 326 S.W.3d 634(Tex.App. Austin 2010)              7-10

Leal v. State, 303 S.W.3d 292(Tex.Crim.App. 2009)                5

Smith v. State, 165 S.W.3d 361(Tex.Crim .App. 2005)              5

STATUTES


TEXiS2RUlLESr,0F: APPELLATE PROCEDURE §68.01                     1

CIVIL PRACTICE & REMEDIES CODE §132.001                         11

ARTICLE 64.01                                                2-3-4-5

ARTICLE 64.02                                                    8


Article 64.035                                                   7




                                           IV
                     IN THE COURT OF CRIMINAL APPEALS OF TEXAS




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




                          PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

     COMES NOW, Roger Eugene Fain,("Fain") , Appellee/Petitioner in the.above

styled and numbered cause, and pursuant to Tex.R.App.Proc. 68.01, et.seq.,

and for cause shown Petitions this Honorable Court to grant a review of the

opinion of the Court of Appeals, Third District of Texas, Austin, in Cause No.

03-13-00589-CR.     In support of this Petition, Fain will present unto this

Honorable Court the following:

                      •   STATEMENT REGARDING ORAL ARGUMENTS


     Fain requests that oral arguments be granted due to this case involving

important questions of State Law to be decided, but due to Fain's present

situation, Fain regrettably waives oral arguments in this matter.

                           STATEMENT OF   PROCEDURAL HISTORY


     Fain was arrested, indicted and tried for the murder of Sandra Dumont and

was convicted on March 31st 1995, and was sentenced to life imprisonment by

Judge John R. Carter, Presiding Judge of the 277th Judicial District Court of

Williamson County, Texas.      Fain appealled, and the judgment and sentence were

ultimately affirmed, FAIN V. STATE, 9B6 S.W.2d 666(Tex.App.-Austin 199B, pet.

ref'd).

     On August 21st 2001, Fain filed with the trial court a Motion For Release
Of Evidence For DNA Testing, on November 29th & 30th of 2001 the trial court

heard arguments pertaining to the Motion, and the Motion was denied, and the

court issued it's Findings of Fact and Conclusions of Law.

     Fain filed a timely Notice of Appeal, and presented the Court of Appeals

Third District of Texas with his Direct Appeal on the denial of the Motion for

Testing.   The Court denied Fain's Appeal, affirmed the District Court's order,

Inlre Roger Eugene Fain, 83 S.W.3d BB5(Tex.App.-Austion 2002).

     On May 9th 2012, Fain filed a subsequent request for DNA Testing, this

Motion was based upon the Legislative Amendment to the CCP Chapter 64, including

the Acts of 2011, 82nd Leg., ch.278 & 366, having abrogated the "No Fault"

requirement of Art.64.01, which required Fain to demonstrate that.it was not

through any fault of his own that biological material collected in this case

was not previously subjected to forensic DNA testing.

     As of September 1st 2011, Art.64.01    does not contain any such "No Fault"

provision, SKINNER V. 5WITZER, 2011 U.S.Dist. LX 1320024(N.D.Tex.2011).         As

Chapter 64 does not prohibit a second and/or successive motion for DNA Testing

EX PARTE 5UHRE, 185 S.W.3d B98,899(Tex.Crim.App.2006) .

                                QUESTIONS FOR REVIEW

1.         DID THE COURT OF APPEALS   ERR BY NOT RENDERING ITS DECISION   IN
           ACCORDANCE WITH THE SEPTEMBER 1ST 2011,     AMENDMENTS TO THE CODE
           OF CRIMINAL PROCEDURE, ART.64.01?

2.         DID THE COURT OF APPEALS ERR IN RENDERING ITS DECISION UTILIZING
           THE INCORRECT STANDARD OF REVIEW?


3.         DID THE COURT OF APPEALS   PROPERLY DETERMINE THAT THERE EXISTS A
           REASONABLE   PROBABILITY THAT EXCULAT0RY DNA TESTING OF THE EVIDENCE
           FOR WHICH FAIN SEEKS TESTING WOULD PROVE     "ACTUAL INNOCENCE"?


4.         DID THE COURT OF APPEALS   ERR BY RENDERING AND BASING THEIR DECISIONS
           ON ISSUES NOT PRESENTED FOR REVIEW AND/OR OUTSIDE OF THE RECORD,
           TO WIT:   MAKING REFERENCE TO THE FIELD WHERE THE VICTIM'S REMAINS
           WERE DISCOVERED?
                                ARGUMENT   &   AUTHORITY


                           GROUND FOR RELIEF NO.           1


          DID THE COURT OF APPEALS    ERR BY NOT RENDERING ITS DECISION IN
          ACCORDANCE WITH THE SEPTEMBER 1st 2011, AMENDMENTS TO THE CODE
          OF CRIMINAL PROCEDURE, ART. 64.01?

     Fain asserts the answer is "Yes" and in doing so, the Court of Appeals

decision conflicted with the change in the Legislative Act of September 1st

2011, when the "No Fault" provision was removed.

     The Court of Appeals states that Fain bore the responsibility for the

failure to previously request to have DNA tests conducted on the evidence he

is now requesting testing on.

     Fain strongly disputes this claim based on what a "Defendant" is allowed

to contribute to his own defense prior to, during, and after his trial.      Fain

believes that their is only four (4) things that a "Defendant" is allowed

total control over concerning his defense, and they are: 1) HIS PLEA; 2) TO

HAVE HIS TRIAL BY JUDGE OR JURY; 3) TO TESTIFY IN HIS DEFENSE;!4) TO APPEAL

THE CONVICTION IF NECESSARY.


     Outside of these Four (4) things, the sole person responsible for the

trial strategy is the "Defendants" counsel, no matter what counsel claims or

wishes others to believe, the trial counsel is responsible for the defense of

his client, it is his knowledge, and understanding of the forum in which he

is supposedly familar with to defend the client, if then this isn't the case

then the "Defendant's/Clients) would be running the show.

     Fain would like to ask a question of this Court, "How can a defendant,

during his trial, stop the proceedings, once he understands the importance of

a piece of evidence elicited during testimony, and request that the Court stop

the proceedings while this piece of evidence is tested??"      Does not happen,

it is the sole responsiblity of the defense counsel to understand the import

ance of the evidence, and it his his decision, not the defendants to request
any further testing on the item inquestion.

     In the instant case Fain's counsel did speak to him about DNA testing of

items that were available "prior" to trial, these items are the Sixteen (16)

that were tested at the Roche Lab,(See attached exhibit).           Fain was not made

aware of any other material prior to or before trial.

     Therefore, a convicted person could be granted post-conviction forensic

DNA testing by merely showing that the biological material in question had not

been previously tested, Art.64.01(b)(1).

     In their Memorandun Opinion, the Court of Appeals panel recognized the

2011 change in Art.64.01(b) (1)(B), however, their position is that the 2011

Amendment did not apply due to the fact that the Court had already heard the

issues presented,(Memorandum Opinion pg.3).           Fain asserts that by failing to

properly apply the Amended version of Art.64.01, the Court of Appeals have

departed from the accepted, and usual course of judicial proceedings as to call

for an exercise of this Court of Criminal Appeals' power of supervision, and

thus, this Petition should be granted.

     In FAIN V. STATE, 2014 WL 6840282(Tex.App .-Ft. Worth 2D14)(pet.denied

April 15th 2015), counsel for the State asked that this Court of Criminal

Appeals establish a standard for subsequent requests for post-conviction

forensic DNA testing, it would seem the the Court of Criminal Appeals decision

to deny the States PDR in based on the fact when the Law changes, subsequent

Motions become necessary, since there is no restriction against a person to

argue "Actual Innocence'.'   Law of Case Doctrine does not apply when the Law

has changed, or "actual innocence" is brought forth for review.

                              GROUND   FOR   RELIEF   NO.   2


          DID THE COURT OF APPEALS ERR IN RENDERING ITS DECISION UTILIZING
          THE INCORRECT STANDARD OF     REVIEW?


     Fain asserts that the answer is "Yes" and in doing so, the Court of




                                             4   -
Appeals' decision conflicts with the decisionof the Court of Criminal Appeals

on the same issue, and, have so far departed from the accepted and usual course

of judicial.: proceedings as to call for an exercise of the Court's supervision.

     The application of the September 1st 2011 Amendments to Art.64.01, notwith

standing, the "reasonable probability" standard of Art .64.01(a)(2)(A) had been

abolished prior to the filing of Fain's DNA Motion and thus should not have

been applied to the review by the Court of Appeals.

     Furthermore, this Court of Criminal Appeals has ruled that the 2003

Legislative Amendments to Chapter 64 clarifed that the standard of proof with

regard to getting a DNA test is the "preponderance of the evidence."    By taking

the "reasonable probability" language out of the CCP Chapter 64, the intent

was to clarify that Applicant's did not have to meet two burdens.    Overruling

the reasoning in EX PARTE KUTZNER, 75 S.W.3d 427,439(Tex.Crim.App.2002J the
Legislaure made clear it did not intent the Applicant's to have to prove actual

innocence, (a principle of habeas Law) in order to meet the burden to have DNA

testing accomplished.

     Instead, the Applicant's must show that, had the results of the DNA test^

ing been available, there is at least a 51% chance the Applicant would not have

been convicted.   LEAL V. STATE, 303 S.W.3d 292(Tex.Crim.App.2009); SMITH V.

STATE, 165 S.W.3d 361,363-64(Tex.Crim.App.2005).

     In affirming the trial court's decision to deny Fain's DNA Motion, the

Court of Appeals has erroneously adopted the "reasonable probability" and

"actual innocene standard" for Fain's Motion, and in doing so, conflicts with

the decision of this Court of Criminal Appeals on the same issue, and, have so

far departed from the accepted and usual course of judicial proceedings.

                            GROUND i FOR RELIEF NO.   3

          DID THE COURT OF APPEALS PROPERLY DETERMINE THAT THERE EXISTS A
          REASONABLE PROBABILITY THAT EXCULAT0RY DNA TESTING OF THE EVIDENCE
          FOR WHICH FAIN SEEKS TESTING WOULD PROVE   "ACTUAL INNOCENCE"?


     Fain asserts the answer is "No" and because of this fact Fain believes


that the Court of Appeals has become bias in it's treatment of Fain's request

for DNA Testing.

     The Court of Appeals has always, automatically adopted the trial court's

opinion that the biological material in it's possession would not connect Fain

to the crime scene, thus it isn't necessary to test it.    Furthermore, the

State has continually stated that the crime scene, an open field wouldn't pro

vide any exculpatory material, the Court of Appeals in their Opinion in 2002

stated;

     "FURTHER, THE VICTIM'S BODY WAS IN A FIELD FOR OVER A MONTH BEFORE IT
      WAS DISCOVERED AND HER CAR, WHICH WAS FOUND PARKED NEARBY, HAD BEEN
      BURGLARIZED.   UNDER THE'CIRCUMSTANCES, THE PRESENCE OF BIOLOGICAL
      MATERIAL ON OR NEAR THE VICTIM'S BODY OR IN 'HER CAR THAT COULD NOT BE
      MATCHED TO FAIN BY DNA TESTING WAS NOT EXCULPATORY."   Inre FAIN @8B9

     In the instant case, the Court of Appeals quoted the same finding of the

original opinion,(Memorandum Opinion pg.3-4).   Yet it's the State's counsel

who stated that;

     "...TESTING THE EVIDENCE W0ULDN"T SHOW ANYTHING.     IT WOULDN'T SHOW THE
      THE IDENTITY OF THE ACTUAL MURDERER, AND THAT' BECAUSE THE CRIME SCENE
      IS SO CORRUPTED, TWO AND A HALF WEEKS AFTER HER BODY WAS DISCOVERED."

     At no time during the August 13th 2013 hearing did the State produce, or

offer any witness testimony to the alleged "corruption" of the crime scene, at

no time has either Court of Appeals opinion offered any basis for their claim

that an open field would "corrupt" all other DNA material other than Fain's,

Inre FAIN, @B89; 2015 Opinion pgs.3-4.

     Fain contents this, DNA testing does not prove actual innocence, all DNA

testing does is either show the material belongs to a person or doesn't belong

to a person.

     State counsel wishes the Court(s) to believe that Fain's request is un

reasonable, that he hasn't present adequate argument to have testing on items



                                     - 6
he wishes to have tested.    In the August 25ptJ 2013 hearing,(CR. Vol .1 pg.10) the

State stated that;   "HE'S NOT SEEKING RETESTING BECAUSE OF NEW TECHNOLOGY..."

Fain isn't seeking retesting of any biological testing, he is seeking testing

on items thati;were not tested prior to trial.     State counsel states on record,

"IN FACT. AT THE TIME OF TRIAL, THE STATE TESTED ANYTHING AND EVERYTHING POSSIBLE

THAT WOULD — COULD SHOW THAT THE DEFENDANT_PETITIONER DID IT."(CR.Vol.1 pg.8)

     Well if this is indeed the case, then the 16 items from the Roche Lab were

the only biological evidence admitted to trial, so the question here is, "Did

the State violate Brady? or did defense counsel fail to get all of the discovery

from the State."?


     State counsel, the two opinions of the Court of Appeals all state that the

testing of the material Fain wishes to test would not be exculpatory to him, it

would not produce the "actual murderer" and Fain agrees, BUT if the State were

ordered to "UP LOAD THE MATERIAL, IdHICH THEY CLAIM IS OVER A HUNDRED ITEMS INTO

THE CODIS SYSTEMS, THEN THE ACTUAL MURDERER JUST MIGHT BE CAUGHT." Art.64.035.

     The State counsel has stated on record that the State has tested over a

hundred items, yet has failed to up load these findings into the Federal and

State CODIS systems.   This same District Attorney's Office, different admini

stration, same attitude denied Michael Morton,(In re Morton, 326 S.W.3d 634,

Tex.App.-Austin2010) for Six years bascially stating the same party line as is

the present adminstration.

     Michael Morton finally got the Court of Appeals for the Third District of

Texas to "Order" Williamson County to test the bloody bandana that had what ap

peared to be blood, once the bandana was tested, it confirmed that some of the

blood was that of Morton's wife, Christine, and of an "unidentified donor" it

wasn't until the results of the testing was up loaded into the CODIS systems

that the name of Christines killer became apparent, and subsequently he was




                                       -   7   -
tried and convicted for the murder of Christine Morton.


     The State, as well as the Court of Appeals can continue to state unsup

ported speculation that if the DNA material in the States possession would not

be exculpating to Fain, without the benefit of fully testing and uploading the

evidence results into   CODIS.


     It is clear from the record in Fain's case and during the hearing of Aug

ust 22nd 2013, that the District Court order a hearing to be held, yet from

what the record indicates the State totally disregarded Art.64.02; Notice To

State; Response, when 64.02 is ordered, the State must follow the Article, in

this case it didn't happen, 64.02(a)(1)(2)(A)(B) .

     The Williamson County District Attorney's Office to insure that Fain had

a "Fair & Impartial" hearing in front of a visiting Judge, the State offered to

Fain's counsel four pages of what counsel called inventory, very general, boxes

containing items that the Round Rock police department had in storage, what is

ironic with this is a good portion of the inventory list released to counsel

and which he presented to the Court without objection is evidence from a 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 One
suspect, to offer up for uploading into CODIS could actually "solve" the

murder of Darlene Anderson and thus would dispute the 5tate's theory that Fain

was responsible for both murders.     "IF" that'is actually the case, then the

Williamson County District Attorney's Office is guilty of obstruction of just

ice.


                             GROUND   FOR RELIEF NO.   4


           DID THE COURT OF APPEALS ERR BY RENDERING' AND BASING THEIR DECISIONS
           ON ISSUES NOT PRESENTED FOR REVIEW AND/OR OUTSIDE OF THE RECORD, TO:
           WIT:   MAKING REFERENCE TO THE FIELD WHERE THE VICTIM'S REMAINS WERE
           DISCOVERED?


       Fain asserts the answer is "Yes" and in doing so the Court of Appeals in both

of their Opinions,(In re Fain §889; and Memorandum Opinion pgs.3-4).     There has

not been any testimony, evidence presented, expert testimony or anything else

that the Court of Appeals could base their collective denials on based on the

field.    The State's counsel stated that the field was "corrupt" but by this 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.
                                                                               0



                                         Rogerr Eug
                                                Eugene Fain



                                        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.




                                     -zfl-fn—
                                      Roger Exiqene
                                            trig    Fain
                                                                   £Las*s




                                         11
          APPENDIX




     MEMORANDUM OPINION

   OF THE COURT OF APPEALS
   THIRD DISTRICT OF TEXAS
          AT   AUSTIN
  CAUSE NO.    03-13-005B9-CR
  DELIVERED ON MAY 7TH 2015



ROCHE BIOMEDICAL LABORATORIES
    CERTIFICATE OF ANALYSIS
DELIVERED ON JANUARY 20TH 1995




               12
     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-13-00589-CR




                                 Roger Eugene Fain, Appellant

                                                v.



                                 The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
            NO. 95-112-K277, HONORABLE DOUG SHAVER, JUDGE PRESIDING



                            MEMORANDUM                 OPINION



               In 1995,a jury found appellant Roger Eugene Fain guilty ofmurder. See Tex. Penal

Code § 19.02. After Fain pleaded true to two enhancement allegations, the trial court assessed

punishment at imprisonment for life. This Court affirmed Fain's conviction on appeal. SeeFain

v. State, 986 S.W.2d 666 (Tex. App.—Austin 1998, pet. refd). In 2001, Fain filed a motion

requesting forensic DNA testing of certain evidence collected in connection with the investigation

that led to the charges against him. See Tex. Code Crim. Proc. arts. 64.01-.05. The trial court

denied his motion, and we affirmed the trial court's ruling. See In re Fain, 83 S.W.3d 885

(Tex. App.—Austin 2002, no pet.). In 2012, Fain filed a second motion requesting forensic DNA

testing. The trial court again denied the motion, and in his sole point of error on appeal, Fain

challenges the trial court's ruling. See Tex. Code Crim. Proc. art. 64.05. We will affirm the trial

court's order denying Fain's motion.
                                            DISCUSSION




Standard ofreview

               Under Chapter 64 of the Texas Code of Criminal Procedure, "[a] convicted person

may submit to the convicting court a motion for forensic DNA testing of evidence containing

biological material." Id. art. 64.01 (a-1). A convicting court may order DNA testing only if (1) the

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

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

or altered in any material respect; (2) identity was or is an issue in the case; and (3) the convicted

person establishes by a preponderance of the evidence he would not have been convicted if

exculpatory results had been obtained through DNAtesting. Id. art. 64.03(a). In reviewing a trial

court's rulings under Chapter 64, we give almost total deference to the trial court's findings of

historical fact and application-of-law-to-fact issues that turn on witness credibility and demeanor.

Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). We consider de novo all other

application-of-law-to-fact questions. Id.


Analysis

                In his sole point of error, Fain asserts that the trial court erred in denying his motion

because, according to Fain, he has satisfied all the statutory requirements for post-conviction DNA

testing. In response, the State argues that this Court already settled the relevant legal issues when

it affirmed the trial court's order denying Fain's first motionand that the "law of the case" doctrine

prevents us from reconsidering our decision. See State v. Swearingen, 424 S.W.3d 32, 36 (Tex.
Crim. App. 2014) (explaining that, under the "law of the case" doctrine, "an appellate court's

resolution ofquestions oflaw in a previous appeal are binding in subsequent appeals concerning the

same issue," and "when the facts and legal issues are virtually identical, they should be controlled

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

statutory requirements under Chapter 64.

               We affirmed the denial of Fain's previous motion for two reasons. First, at the time,

Chapter 64 provided that a convicted person could request DNA testing of evidence that "was not

previouslysubjected to DNA testing ... through no fault of the convictedperson." Act of Apr. 3,

2001, 77th Leg., R.S., ch. 2, § 2,2001 Tex. Gen. Laws 2, 3 (amended 2011) (current version at Tex.

Code Crim. Proc. art. 64.01(b)). The trial court had made findings, supported by the record, that

Fainbore responsibility for the failure to conductDNAtests on the evidence he was movingto have

tested. In re Fain, 83 S.W.3d at 888-89. Because Fain was at fault, he failed to satisfy the statutory

requirements for testing.

               Second, we concluded that the trial court correctly determined that Fain did not

meet his burden of establishing by a preponderance of the evidence "that a reasonable probability

exists that he would not have been prosecuted or convicted if exculpatory results had been

obtainedthrough DNA testing." Id. at 889 (citingTex. Code Crim. Proc. art. 64.03(a)(2)(A)). We

explained our conclusion as follows:


       Fain's motion for testing did not contain any factual allegations that, if true, would
       demonstrate a reasonable probability that additional DNA testing would prove
        exculpatory. Further, the victim'sbody was in a field forovera month before it was
        discovered and her car, which was found parked nearby, had been burglarized.
        Underthe circumstances, the presenceof biologicalmaterialon or near the victim's
       body or in her car that could not be matched to Fain by DNA testing was not
       exculpatory. In fact, the jury at Fain's trial was told that DNA tests did not connect
       him to the murder. The jury nevertheless convicted Fain on the basis of a web of
       circumstantial evidence so strong that he did not contest the sufficiency of the
       evidence on appeal.


Id. (footnote and citation omitted).

               In 2011, the legislature amended article 64.01(b), removing the phrase, "through no

fault of the convicted person." Act of May 20, 2011, 82d Leg., R.S., ch. 366, § 1, 2011 Tex. Gen.

Laws 1016,1016. However, even assuming without deciding that the 2011 amendment undermines

the first basis for our previous decision, the amendments to Chapter 64 do not affect our second

reason for affirming the denial of Fain's first motion: Fain did not establish by a preponderance of

the evidence that exculpatory DNAevidence wouldhaveprevented his conviction.' Therefore, we

agree with the State that this Court has already ruled on an identical dispositive legal issue in this

case. As in his first motion, Fain is now requesting to have tested "biological material on or near

the victim's body or in her car." In reFain, 83 S.W.3d at 889. Because Fain has not shown that any

intervening factual or legal developments would call our previous decision into question, we will

not revisit our conclusion that Fain failed to meet the statutory requirements for forensic DNA

testing. See Swearingen, 424 S.W.3d at 36. Accordingly, we overrule Fain's sole point of error.



        1 At the time, Chapter 64 provided that a court could order DNA testing only if "the
convicted person establishes by a preponderance of the evidence that... a reasonable probability
exists that the person would not have been prosecuted or convictedif exculpatory results had been
obtained through DNA testing." Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen.
Laws 2,3 (amended 2003) (current version at Tex. Code Crim. Proc. art. 64.03(a)(2)(A)). Thecurrent
versionnowreads, "the convictedpersonestablishes by a preponderance of the evidence that... the
person would not have been convicted if exculpatory results had been obtained through DNA
testing." Tex. Code Crim. Proc. art. 64.03(a)(2)(A). This amendment does not affect our analysis.
                                        CONCLUSION


              Having overruled Fain's sole point oferror, we affirm the trial court's order denying

his motion requesting forensic DNA testing.




                                              Scott K. Field, Justice

Before Justices Puryear, Goodwin and Field

Affirmed


Filed: May 7, 2015

Do Not Publish




                                                                            fab'b- 0S-M-&
^^^*   Roche Biomedical
       Laboratories
       A Member ofthe Roche Group                                       Roche Biomedical Laboratories, Inc.
                                                                        1912 Alexander Drive
                                                                        Research Triangle Park, North Carolina 27709

                                                                        Telephone: 919361-7700
                                                                        Fax: 919 361-7797

                                     CERTIFICATE OF ANALYSIS

                                            January 20,1995

   District Attorney
   Justice Center - Courts Building
   405 South MLK-#1
   Georgetown, TX 76626
   ATTN: Mr. Ken Anderson


   Agency #:        L-234329,94-631-K277

   Victim(s):       Dumont, Sandra                       FSLab#:         F9400216
   Suspect(s):      Fain, Roger

   Evidence Submitted: via Federal Express               Date Received: 9/22/94
                       (#0197971546)

          Item 1.      One (1) sample listed as PAP smear slide from Sandra Dumont/L-234329.
          Item 2.      Blood samples listed as Roger Fain.
          Item 3.      Samples listed as bloodstain from bathrobe with control.
          Item 4.      Samples listed as Select cigarette butts/living room ashtray.
          Item 5.      Sample listed as bloodstains from shorts, #1.
          Item 6.      Sample listed as bloodstains from shorts, #2.
          Item 7.      Sample listed as bloodstain from mattress.
          Item 8.      Samples listed as Marlboro cigarette butts/crime scene.
          Item 9.      Sample listed as Select cigarette butt/crime scene.
          Item 10.     Samples listed as Kool cigarette butts/crime scene.
          Item 11.     Sample listed as condom.
          Item 12.     Sample listed as tampon.
          Item 13.     Samples listed as Select cigarette butts/Ford truck.
          Item 14.    Sample listed as papertowels/Ford truck passengerseat.
          Item 15.    Sample listed as paper towels/Fordtruck passenger door.
          Item 16.    Samples listed as Select cigarettebutts/Toyota Corolla.



                                               Page 1 of3
F9400216


Results:


Deoxyribonucleic acid (DNA) was processed from the above listed evidence and characterized
through the polymerase chain reaction (PCR) at the following genetic systems:

                                            Alleles Detected


   &m          Sample          BQ alpha     LDJLR     GYPA     HBGjQ   D7S8   GC    HUMTHOl


   3           Bathrobe         1.1,1.2      A,B       A,B     A*,B    A,B A,B*,C      7,9
   13      #1 Cigarette Butt     1.1,4       NA        NA       NA     NA     NA       6,10
              ("Select")
   4        Cigarette Butt      1.1,4        A,B       A,B     A*,B    A,B A*,B*,C     6,10
              ("Select")
   16       Cigarette Butt     1.1, 1.2      A,B        A      A,B     A,B    BC      10,10
              ("Select")
   1          S. Dumont        1.1,1.2       A,B        A      A,B     A,B    B,C     10,10
   2           RFain            1.1,4        A,B      A.B       B      A,B     C      6,10

NA - No Activity
* - Intensity of alleles designated with a single asterisk are less intense than non designated
alleles.


Based upon the results listed above, the DNA profile obtained for the bathrobe (Item 3) is
different from the DNA profiles from Sandra Dumont (Item 1) and Roger Fain (Item 2);
therefore, both of the individuals are eliminated as possible sources of the genetic material
detected in this sample.

The DNA profile obtained for the "Select" cigarette butt listed as being recovered from the
Toyota Corolla (Item 16) is consistent with the DNA profile from Sandra Dumont (Item 1);
therefore, Sandra Dumont cannot be eliminated as a possible source of the genetic material
detected in this sample. The probability of randomly selecting an unrelated individual with a
DNA profile consistent to Items 1 and 16, at the genetic systems listed (excluding HUMTHOl),
is approximately:

                1 in 3,002 for Caucasians
                1 in 6,740 for Blacks
                1 in 2,565 for Hispanics (Southeastern)
                1 in 2,559 for Hispanics (Southwestern)


                                              Page 2 of3
F9400216


The DNA profile obtained for the "Select" cigarette butt listed as being recovered from the living
room ashtray (Item 4) is consistent with a mixture of DNA profiles from more than one
individual. Roger Fain (Item 2) can not beeliminated as a possible contributor to the mixture of
genetic material detected in this sample. Also, the "A" allele detected at the GC genetic system
for this sample could not have been contributed by Sandra Dumont. No statistical evaluation can
be calculated forthis mixed sample.

The DNA profile obtained for the sample listed as "Select" cigarette butt from Ford truck (Item
13) is consistent with the DNA profile obtained from Roger Fain (Item 2) and different from
Sandra Dumont; therefore, Roger Fain can not be eliminated as a possible donor of the genetic
material in this sample. The probability of randomly selecting an unrelated individual with a
DNA profile consistent to Items 2 and 13 at the genetic systems DQ alpha and HUMTHOl is
approximately:

                 1 in 80 for Caucasians
                 1 in 429 for Blacks
                 1 in 143 for Hispanics (Southeastern)
                 1 in 116 for Hispanics (Southwestern)

Theresults have been reviewed independently bytheundersigned and are correct as reported.

Sworn to and subscribed
before me this       A/**"             day                   /i/l^«//>? C             i
of S/(flA*A,                 19 ^                          Ma{ciaEisenberg,Ph.D.           77
atResearch Triangle Park, NC.                              Director, Forensic Identity




            \A+*J &JC/lAS*>
Notary Public
State ofNorth Carolina
My commission expires            (f//<//$$




                                             Page 3 of3
