                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00454-CR


MICHAEL DENNIS QUINN                                            APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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     Appellant was convicted in 1995 of aggravated sexual assault of a child

under fourteen years of age and indecency with a child by contact. The jury

assessed punishment at fifty and twenty years’ imprisonment, respectively. On

original submission, this Court was reversed by the Texas Court of Criminal

Appeals on a point of error not relevant to this proceeding. On remand, this



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      See Tex. R. App. P. 47.4.
Court affirmed the conviction. See Quinn v. State, 991 S.W.2d 52, 55 (Tex.

App.—Fort Worth 1998, pet. ref’d).

      In March 2009, Appellant filed a pro se pleading styled ―Motion for

Forensic DNA Testing of Evidence.‖ He also filed affidavits and a memorandum

in support of his motion. In January 2010, an attorney was appointed by the trial

court to represent Appellant in the pursuit of the motion. On September 20,

2010, the State filed a reply to the motion, along with proposed findings of fact

and conclusions of law. On October 4, 2010, the trial court adopted the State’s

proposed findings and conclusions, finding, inter alia, that the Fort Worth Police

Department released all evidence to the Euless Police Department; that the

Euless Police Department is only in possession of reports on microfilm; and that

all other evidence, including that from the Fort Worth Police Department, was

destroyed prior to the effective date of article 38.39 of the code of criminal

procedure. Additionally, the only entry of any relevance to Appellant’s claim was

the following notation on the Fort Worth Police Department Crime Laboratory

report: ―Semen was not detected.‖ The trial court denied Appellant’s motion for

DNA testing. This appeal followed. We will affirm the trial court’s order.

                           ARGUMENTS OF PARTIES

      Appellant contends that the State has failed to properly account for the

biological material that ―has been tested in the past.‖     He complains that no

document has been produced that demonstrates the time and place of actual

destruction of biological evidence related to the case, and he seeks a remand to


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the trial court for an accounting of the ―purported‖ destruction of biological

evidence or testing of the biological material. Although Appellant argued a claim

in his pro se motion for DNA testing in the trial court that could be construed as a

deprivation of due process argument under the Fourteenth Amendment to the

United States Constitution, his appellate counsel only advanced Texas statutory

arguments in his brief to this Court, and consequently, we only consider those

arguments advanced by counsel in his brief.

      The State counters, arguing in a nutshell that the trial court properly denied

Appellant’s request because the State explained in writing, as required by code

of criminal procedure article 64.02(a)(2)(B), that it was unable to deliver the

evidence because it had been destroyed by the Euless Police Department. See

Tex. Code Crim. Proc. Ann. art. 64.02(a)(2)(B) (West Supp. 2010).

                            STANDARD OF REVIEW

      A trial court’s decision to deny a motion for post-conviction DNA testing is

reviewed under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55,

59 (Tex. Crim. App. 2002).        An appellate court usually gives 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, but it considers de novo

all other application-of-law-to-fact questions.   Ex parte Gutierrez, 337 S.W.3d

883, 890 (Tex. Crim. App. 2011); see also Routier v. State, 273 S.W.3d 241, 246

(Tex. Crim. App. 2008).




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                        APPLICABLE STATUTORY LAW

      Texas Code of Criminal Procedure article 64.01 provides a convicted

person with a procedural vehicle to obtain forensic testing of DNA material that is

contained within existing evidence. See Tex. Code Crim. Proc. Ann. art. 64.01

(West Supp. 2010).

      Article 64.01(b) specifies the parameters of a convicted person’s motion for

DNA testing, limiting it to ―evidence described by Subsection (a) that was

secured in relation to the offense that is the basis of the challenged conviction

and was in possession of the state during the trial of the offense.”           Id. art.

64.01(b) (emphasis added). Not later than sixty days after service of the motion,

the State must either deliver the evidence to the trial court, or explain in writing to

the trial court why the State cannot deliver the evidence to the court. Id. art.

64.02(a)(2)(A)–(B) (West Supp. 2010). And a convicting court may order DNA

testing under chapter 64 only if the court finds that the evidence still exists and is

in a condition making DNA testing possible. Article 64.03(a)(1)(A)(i) (West Supp.

2010).    The law also requires that the convicted person establish by a

preponderance of the evidence that the person would not have been convicted if

exculpatory results had been obtained through DNA testing.                    Id. art.

64.03(a)(2)(A).

                       APPLICATION OF LAW TO FACTS

      In its findings of fact, the trial court found that ―[a]ll other evidence in the

possession of Euless Police Department, including the evidence released by the


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Fort Worth Police Department Forensics Division, has been destroyed prior to

the effective date of Article 38.39 of the Texas Code of Criminal Procedure.‖

[Emphasis added.] Article 38.39 went into effect on April 5, 2001. See Tex. S.B.

3, ch. 2, § 1, 77th Leg., R.S. (2001). It has since been renumbered to Article

38.43 without textual change. See Act of June 17, 2005, 79th Leg., R.S., ch.

728, 2005 Tex. Gen. Laws 2314 (current version at Tex. Code Crim. Proc. Ann.

art. 38.43 (West Supp. 2010)).

      Current law provides that material required to be preserved must be so

until (1) the defendant is executed, dies, or is released on parole in a capital

case, or (2) the defendant dies, completes his sentence, or is released on parole

or mandatory supervision if he is sentenced to a term of confinement or

imprisonment. Tex. Code Crim. Proc. Ann. art. 38.43(c)(1)–(2).

      Additionally, current law provides that the attorney for the State, the clerk,

or other officer in possession of evidence may destroy the evidence, but only if

the attorney, clerk, or other officer notifies by mail the defendant, the last attorney

of record for the defendant, and the convicting court of the decision to destroy the

evidence and if a written objection is not received from the defendant, his

attorney, or the court within the time specified in the statute, but essentially

ninety-one days from receipt of notice to destroy. Id. art. 38.43(d)(1)(2).

      Clearly, the purpose of article 38.39 and its progeny, article 38.43, is to

establish a mechanism to preserve evidence containing biological material that,

when coupled with the procedural mechanisms in chapter 64, would address the


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correctness of convictions based on biological material. However, Appellant’s

trial and subsequent appeal on the merits occurred several years prior to April 5,

2001, the effective date of article 38.39.        Therefore, since preservation of

biological material is not an issue, we must look to chapter 64 to determine if the

trial court and the prosecution acted according to accepted procedural

requirements.

         The State filed a response to Appellant’s motion for DNA testing as

required by article 64.02(a)(2)(B), asserting why the State could not deliver the

evidence to the trial court—because the Euless Police Department had

destroyed it—and the trial court so found. The trial court then made a finding that

the evidence did not still exist and therefore was not in a condition making DNA

testing possible. See id. art. 64.03(a)(1)(A)(i). Appellant argues that the State’s

failure to present any documentation that ―demonstrates the time and place of

actual destruction of the biological evidence related to this case‖ constituted

error.

         In Figueroa v. State, a fact pattern very similar to that in the case at bar

was presented to this court. See No. 02-03-00064-CR, 2003 WL 22674767 (Tex.

App.—Fort Worth Nov. 13, 2003, pet. ref’d) (mem. op, not designated for

publication). In Figueroa, the State presented a sworn affidavit from the Arlington

Police Department averring that the State had no DNA evidence to deliver to the

trial court because it had been destroyed. Id. at *1. This court held that when




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the explanation offered by the State is that the evidence was destroyed, nothing

in article 64.02 requires the State to explain why the evidence was destroyed. Id.

      In this case, because the State explained that the evidence that Appellant

seeks to have tested was destroyed, the State satisfied the requirements of

article 64.02(a)(2)(B).   Having considered de novo the legal component of

Appellant’s sole point, we hold that neither preservation nor procedural issue is

sustainable. Thus, Appellant’s sole point is overruled.

      The order of the trial court is affirmed.



                                                   PER CURIAM

PANEL:    CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting By
Assignment); WALKER and MCCOY, JJ.

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

DELIVERED: August 25, 2011




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