      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00585-CR



                                  In re Michael Wayne Morton


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 86-452-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                                          OPINION


               In 1987, appellant Michael Wayne Morton was convicted of the murder of his wife

Christine Morton, and was sentenced to life imprisonment. In 2005, pursuant to chapter 64 of the

Texas Code of Criminal Procedure, appellant filed a motion for forensic DNA testing of evidence

containing biological material that appellant believes may undermine the basis for his conviction.

The district court denied, in part, appellant’s motion for DNA testing. Appellant appeals the

district court’s denial of certain testing. We affirm the district court’s order as to the evidence

collected in connection with a separate, but similar, murder because such evidence was not secured

in relation to Christine’s murder as required by chapter 64. We further affirm the order as to the

fingerprint evidence at issue because such evidence does not contain biological material as required

for an order under chapter 64. However, we reverse the district court’s order as to the blood-stained

bandana recovered from behind the Mortons’ house because appellant has established by a

preponderance of the evidence that he would not have been convicted if exculpatory results were
obtained through such testing. We remand the cause to the district court for further proceedings

consistent with this opinion.


Factual and Procedural Background

               Shortly after noon on Wednesday, August 13, 1986, Michael and Christine Morton’s

next-door neighbor noticed the Mortons’ three-year-old son Eric alone outside the Mortons’ house.

The neighbor entered the Morton home to look for Eric’s mother Christine and eventually discovered

her dead body in the master bedroom. The body was under a comforter on the bed, and a wicker

basket and suitcase were piled on the body at the headboard. Christine had suffered a massive blunt

injury to the head caused by at least eight blows. Her entire upper body was covered in blood. After

an autopsy, the medical examiner identified a defense-type injury on Christine’s left little finger

and an abrasion on her right little finger, and collected a number of wood chips found embedded in

her head and hair.

               At the time Christine’s body was discovered, appellant was at his workplace. The

State prosecuted appellant under the theory that he had killed his wife “in a sexual rage” the night

before her body was discovered when she refused to have sex with him. Appellant adamantly denied

he had killed his wife and pointed to evidence that after he had left for work at 5:30 a.m. an unknown

killer entered the house, which evidence included overturned drawers in the bedroom and appellant’s

handgun and Christine’s purse missing from the house. The State countered that appellant

purposefully attempted to make the murder appear to have been committed by an intruder. The jury

found appellant guilty, and on February 23, 1987, appellant was sentenced to life imprisonment.




                                                  2
This Court affirmed the judgment of the district court. See Morton v. State, 761 S.W.2d 876

(Tex. App.—Austin 1988, pet. ref’d).

               On February 11, 2005, appellant filed in the district court a motion for forensic

DNA testing of evidence related to Christine’s murder, pursuant to chapter 64 of the Texas Code of

Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01(a) (West Supp. 2009). Appellant

sought testing of the following: (1) vaginal, oral, and rectal swabs collected from Christine’s body

at her autopsy, hairs found entwined in her right hand at the crime scene, fingernail clippings taken

from her hands, and the nightgown recovered from her body; (2) a blood-stained bandana recovered

from behind the Mortons’ house;1 (3) certain biological material collected from Mildred McKinney,

who was the victim of a murder that occurred in the Mortons’ neighborhood approximately six years

before Christine’s murder; and (4) fingerprints recovered from both the McKinney and Morton

crime scenes for purposes of comparative analysis. The district court, on August 8, 2006, ordered

that DNA testing be performed on the first category of evidence, but denied appellant’s motion with

regard to the bandana. In a separate order signed on July 24, 2008, the district court also denied

appellant’s motion with regard to the McKinney biological evidence and the fingerprint evidence.2

               On March 7, 2008, after the ordered DNA testing proved inconclusive—except that

testing of the hairs yielded DNA profiles consistent with appellant and Christine—the district court

       1
          Appellant’s request for testing of the bandana includes both the bandana itself and a strand
of hair found on the bandana.
       2
           After the district court entered its findings on the first category of evidence and the
bandana, appellant filed a petition for writ of mandamus in this Court to compel the district court
to enter a ruling with respect to the McKinney biological evidence and the fingerprint evidence.
This Court conditionally granted appellant’s petition. See In re Morton, No. 03-08-00203-CV
(Tex. App.—Austin June 6, 2008, orig. proceeding).

                                                  3
entered findings on appellant’s motion. See id. art. 64.04 (West 2006). The district court found that,

had the results of the testing been available during the 1987 trial, it is not reasonably probable that

appellant would not have been convicted of the offense of murder.

                Appellant appeals the district court’s denial of his motion for forensic DNA testing

with respect to the blood-stained bandana, the McKinney evidence, and the fingerprint evidence.


Texas Code of Criminal Procedure Chapter 64

                Under Texas Code of Criminal Procedure chapter 64, 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). To order testing, the court must first find that identity was or is an issue in the case.

See id. art. 64.03(a)(1) (West Supp. 2009). Moreover, the convicted person must establish by a

preponderance of the evidence that he would not have been convicted if exculpatory results had been

obtained through DNA testing, and that the request for the proposed DNA testing is not made to

unreasonably delay the execution of sentence or administration of justice. Id. art. 64.03(a)(2).

                To qualify for forensic DNA testing, the evidence must have been secured in relation

to the offense that is the basis of the challenged conviction and have been in the possession of the

State during the trial of the offense. See id. art. 64.01(b). The evidence must still exist, must be in

a condition making DNA testing possible, and must have 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. Id. art. 64.03(a)(1)(A). Other requirements apply depending upon whether the

evidence has been previously subjected to DNA testing. See id. art. 64.01(b)(1), (2).




                                                     4
               In the event that testing is ordered, after the results have been examined the

convicting court must hold a hearing and make a finding as to whether, had the results been available

during the trial of the offense, it is reasonably probable that the person would not have been

convicted. See id. art. 64.04.

               The convicted person may appeal the trial court’s orders and findings. See id.

art. 64.05 (West 2006).      In reviewing the trial court’s decisions on a motion for forensic

DNA testing, we afford almost total deference to the court’s determination of issues of historical

fact and application-of-law-to-fact issues that turn on credibility and demeanor. See Rivera v. State,

89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo all other application-of-law-to-fact

issues. Id.


The Bandana

               Following the discovery of Christine’s body, a law enforcement officer found a

bandana approximately one hundred yards northeast of the rear of the Mortons’ house, on the edge

of a curb, at the front of a home construction site. A wooded tract of land separated the two sites.

The officer noted the discovery in a report, but did not collect the bandana. Christine’s brother went

to the site, collected the bandana, and turned it over to the State. The bandana appeared to have

blood stains on it. After the State secured the evidence, a Texas Department of Public Safety

serologist confirmed that the bandana was, in fact, stained with human blood. However, the blood

could not be further typed using the technology available at that time.




                                                  5
        Appellant seeks to have DNA testing performed on the blood-stained bandana using new

technology that might provide additional information. Appellant contends that the district court

erred in denying his motion for DNA testing with respect to the bandana.


        Timeliness of notice of appeal

                The denial of a motion seeking forensic DNA testing is an appealable order. See In re

Johnston, 79 S.W.3d 195, 197 (Tex. App.—Texarkana 2002, orig. proceeding). Appellant filed his

notice of appeal after the district court entered its July 24, 2008 order denying appellant’s request

for DNA testing of the McKinney evidence and the fingerprint evidence, and completing its rulings

on appellant’s request for relief under chapter 64. The State contends, however, that appellant failed

to file a timely notice of appeal as to the August 8, 2006 order denying the portion of appellant’s

request for DNA testing relating to the bandana. Generally, the notice of appeal must be filed within

30 days after the trial court’s judgment is signed. See Tex. R. App. P. 26.2(a).

                In Swearingen v. State, the court of criminal appeals held that the trial court’s order

denying a motion for DNA testing triggered the 30-day deadline for a notice of appeal, regardless

of the trial court’s subsequent denial of the convicted person’s motions for an evidentiary hearing

and for entry of order. 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006). However, in Swearingen,

the denial of the motion for DNA testing decided the proceeding’s outcome and triggered the running

of the expiration of the trial court’s plenary power. See id. at 781. In this case, the district court’s

August 8, 2006 order denied appellant’s motion for DNA testing only in part, as the court ordered

that some of the evidence requested by appellant be tested and did not rule on the remaining evidence

at that time. The chapter 64 proceeding’s outcome was not decided until the court had entered both

                                                   6
the March 7, 2008 order, which set out findings on the results of the DNA testing as to the granted

portion of appellant’s motion, and the July 24, 2008 order, which denied appellant’s motion with

respect to the remaining evidence.

                 We do not read chapter 64 of the code of criminal procedure to require a separate

notice of appeal for each of the three orders in this case. See Ex parte Soffar, 143 S.W.3d 804, 805

(Tex. Crim. App. 2004) (deeming avoidance of piecemeal litigation a legitimate concern). Instead,

we hold that in a chapter 64 proceeding the final order that denies forensic DNA testing, see

Tex. Code Crim. Proc. Ann. art. 64.03(a), or that makes the required findings following the granting

of DNA testing, see id. art. 64.04, triggers the running of the notice-of-appeal deadline as to all

such orders in the proceeding.3 See In re Johnston, 79 S.W.3d at 197 (finding denial of motion

for testing to be appealable order when it is “obviously not interlocutory”). In this case, then, the

appellate timetable as to the testing of the bandana ran from July 24, 2008. Appellant’s notice of

appeal was timely.


       Consideration of intervening evidence

                 Before determining appellant’s entitlement to DNA testing, we address what

evidence is at issue in our review. Appellant refers to two key conclusions made by the State’s

medical experts at trial and contends that more recent developments have called those conclusions

into question.




       3
           In the event that a trial court fails to enter one of these two types of orders, as occurred
in this case, mandamus is an appropriate remedy. See id.; In re Johnston, 79 S.W.3d 195, 197-98
(Tex. App.—Texarkana 2002, orig. proceeding).

                                                  7
               A forensic analyst testifying for the State described a stain on the bed sheets as

containing appellant’s semen but no vaginal contributions. The State argued that this analysis

indicated that after appellant beat his wife to death he masturbated over the bed. In 1991, the

district court ordered testing of the sheet, but the laboratory was unable to fully test the material

in the stain. When DNA testing was conducted on the stain once more in 2000 with improved

techniques, it was determined that appellant could not be eliminated as the source of the

spermatozoa, but also that the stain in the bed sheet contained both spermatozoa and the epithelial

cells from a female. This was inconsistent with the State’s theory of masturbation.

               In addition, Dr. Roberto Bayardo, the Travis County chief medical examiner, testified

at the 1987 trial that based on his analysis of Christine’s stomach contents, she died no later than

1:15 a.m. In appellant’s motion for forensic DNA testing filed in 2005, appellant attached the

affidavit of Dr. Michael Baden, a former chief medical examiner of New York City. After reviewing

the relevant expert testimony, Christine’s autopsy and toxicology reports, and other evidence in the

case, Dr. Baden concluded that the evidence did “not permit an accurate and reliable estimation, to

any reasonable degree of scientific certainty, as to when Christine Morton died and whether her death

occurred before or after 5:30 a.m.”—the time at which appellant left the house.

               The State argues, however, that we must limit our analysis to the evidence presented

at trial, and cannot consider the more recent developments as to that evidence. We agree with

the State that in determining whether DNA testing should be ordered, we generally look at the record

at the time of the conviction. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2); Smith v. State,

165 S.W.3d 361, 364 (Tex. Crim. App. 2005) (appropriate inquiry assumes that exculpatory



                                                 8
DNA test results had been available at trial). However, the new evidence relating to the composition

of the semen stain on the bed arose in the context of DNA testing. If two separate results of

DNA testing would be sufficient to overturn a conviction, but neither would independently, it would

be unreasonable not to overturn the conviction solely because the defendant made separate requests.

In a second request for DNA testing, to require a defendant to re-submit evidence for testing

when that evidence has already been found exculpatory—albeit insufficient by itself to reverse

a conviction—would be equally unreasonable. See Tex. Code Crim. Proc. Ann. art. 64.01(b)(2)

(authorizing already-tested evidence to be subjected to new testing only if results would be more

accurate and probative than previous results).

               We hold, therefore, that when a defendant obtains exculpatory results as a result of

court-ordered DNA testing, those exculpatory results may be considered when conducting a

chapter 64 analysis with respect to subsequent requests for DNA testing of other evidence in the

case. Consequently, while we decline to consider appellant’s post-trial evidence that relates to the

timing of Christine’s digestion and to which the State has not conceded for the purposes of a

chapter 64 inquiry, our analysis will take into account the post-trial DNA evidence indicating that

the semen stain in the bed sheet was not the result of masturbation.


       Likelihood of exculpatory results

               Under appellant’s theory of the case, an unknown intruder entered the Mortons’

residence through a sliding door, in the morning, after appellant had left for work. Appellant points

to the sliding door found unlocked, the wooded area behind the house where an intruder could enter

the Mortons’ yard without being seen, a footprint found in the backyard that the intruder could have

                                                 9
left, unidentified fingerprints in the house, and the discarded, blood-stained bandana at the

construction site on the other side of the wooded area. According to appellant, DNA testing of the

bandana would be exculpatory in the event that the bandana contains Christine’s blood, a third

party’s DNA (due to blood, sweat, or hair), and none of appellant’s DNA.

               The State contends that it is unlikely that testing of the bandana would lead to such an

exculpatory result. First, the police officer who initially discovered the bandana was of the opinion

that it had been lying at that site for some time.4 Second, the State questions how the bandana could

be a crucial piece of evidence when neither the State nor the defense introduced it as evidence during

appellant’s trial. Third, the State refers to the unlikelihood of appellant’s theory of an intruder, as

there were no signs of sexual assault, numerous valuable items in the house were left intact, and no

blood was found in the house outside the master bedroom.

               However, it is not our task to determine the likelihood that DNA testing will obtain

results that are exculpatory. Rather, our task under code of criminal procedure chapter 64 is to

determine whether a defendant would have been convicted in the event that the results are

exculpatory. See id. art. 64.03(a)(2). For purposes of this inquiry, we assume that the results of

the DNA testing would prove favorable to appellant. See Routier v. State, 273 S.W.3d 241, 257

(Tex. Crim. App. 2008).




       4
           Even if the officer’s assessment were correct, however, we note the possibility that an
intruder who escaped through the wooded area might have picked up a bandana discarded at the site
in order to wipe blood off himself.

                                                  10
        Likelihood of no conviction if exculpatory results obtained

                A convicting court may order forensic DNA testing under code of criminal procedure

chapter 64 only if the convicted person establishes by a preponderance of the evidence that the

person would not have been convicted if exculpatory results had been obtained through DNA testing.

See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). Appellant contends that DNA testing of the

bandana could obtain exculpatory results. Appellant alleges that testing of the bandana could

demonstrate that the bandana contains Christine’s blood, a third party’s DNA, and none of

appellant’s DNA. Therefore, we must determine whether there is greater than a 50% chance that

appellant would not have been convicted if DNA testing demonstrated that the bandana

contains the exculpatory results alleged by appellant. See Prible v. State, 245 S.W.3d 466, 467-68

(Tex. Crim. App. 2008).

                According to the evidence at trial, at the time of Christine’s death, the Mortons had

been married for seven years. Three-year-old Eric was their only child. The Mortons had moved

to Williamson County and lived in the house for about a year prior to the murder. On the evening

of August 12, 1986, the family celebrated appellant’s birthday with dinner at a restaurant. After

putting their son to bed, the Mortons began watching an adult video. Appellant retrieved a condom

and began rubbing Christine’s hand, when she fell asleep.

                The State argued at trial that appellant murdered Christine in a sexual rage after she

fell asleep during foreplay.5 There was evidence at trial that appellant and Christine frequently


       5
          To support this theory, the State relied in part on the “semen stain” in the bed sheet and
argued that appellant masturbated on the bed after killing Christine. As discussed above, subsequent
testing indicates that the stain contained female epithelial cells and, therefore, was not the result of
appellant’s masturbating.

                                                  11
had verbal disagreements about a variety of topics, and that appellant felt Christine did not engage

in sexual relations with him with sufficient frequency. However, there was also testimony that the

marriage was one of “equals,” and that their relationship was often marked by joking and banter that

was described as playful. There was no testimony to indicate that appellant was prone to threatening

or acting violently toward his wife.

               Crime scene personnel found a note in the bathroom, written by appellant, stating

as follows:


       Chris—I know you didn’t mean to—but you made me feel really unwanted, last
       night. After a good meal, we came home; you binged on the rest of the cookies.
       Then with your nightgown around your waist and while I was rubbing your hands and
       arms—you farted and fell asleep. I’m not mad or expecting a big production. I just
       wanted you to know how I feel without us getting into another fight about sex. Just
       think how you might have felt if you were left hanging on your birthday. I L Y—M


The State argued that this note was calculated to make it appear that Christine was still alive when

appellant left for work.

               Appellant argued at trial that an unknown intruder could have entered the Mortons’

home without being seen by traveling on a pathway along the densely wooded area adjacent to

the house, into the fenced-in backyard, and through one of the house’s sliding doors. Investigators

at the crime scene noted that a sliding glass door at the back of the house was unlocked.

Approximately fifteen latent fingerprints from the crime scene were found that did not belong to the

Mortons, including two collected from the frame of the unlocked sliding glass door. In addition, an

unidentified footprint was found in the yard by the back fence.




                                                12
                  The State sought to discredit appellant’s theory of an intruder. While Christine’s

purse and one of appellant’s handguns were missing, other items of value—including cameras,

jewelry, and other firearms—were undisturbed. Despite the existence of splattered blood on the

bedroom’s walls, floor, and doorway from Christine’s bludgeoning, there was no blood in the house

outside the master bedroom. The State alleged that the footprint came from the funeral director’s

gurney carrier.

                  The State introduced evidence of appellant’s apparent lack of surprise from the

murder. Upon arriving at the babysitter’s house after work to pick up his son and being informed

that his son was never dropped off that day, appellant called home. When he spoke with Sheriff

Jim Boutwell over the phone, appellant said he would be there in ten minutes but did not ask why

the sheriff was there. Upon arriving at the house, appellant’s first words to the sheriff concerned

only whether Eric was okay. When the sheriff told appellant that Christine was dead, appellant

asked if it was murder. When appellant provided the sheriff with details related to the weapons he

possessed, he asked if his handgun was missing.

                  However, other testimony provides some justification for these comments.

Immediately after being told his son was fine, appellant asked about his wife. Appellant testified

that he asked about Eric first because he knew something was wrong with his wife since she had

failed to drop Eric off at the babysitter and yet had not called him that day. Appellant attributed his

question about murder to the facts that numerous investigators were in the house and yard and he

was read his Miranda rights. He also testified that his asking about the handgun was in response

to the sheriff’s asking only about that gun after appellant had listed to the sheriff each of the guns



                                                  13
in the house. Despite the State’s theory that appellant had brutally murdered his wife and worked

to disguise his crime, a few hours before clocking in at work, two co-workers at appellant’s

workplace testified that he did not seem tired and did not exhibit any unusual or strange behavior that

morning at work.

               The State also relies on evidence of appellant’s apparent lack of grief following the

murder. The sheriff who interviewed appellant testified that he did not display any visible emotion

upon learning of his wife’s death. The State notes that within a few days after the murder, appellant

slept in the bed in which Christine had been murdered, and he dug up some marigolds that she had

planted in the front yard and about which they had argued. However, a friend of appellant’s testified

that when he visited the night of August 14 appellant cried with him, and that appellant showed

emotion at Christine’s funeral as well.

               Dr. Bayardo testified that, based on the contents of Christine’s stomach, her death

occurred no later than 1:15 a.m. on August 13, which was before appellant left for work at 5:30 a.m.

However, Dr. Bayardo admitted that this was “not a scientific statement” and that he had originally

assessed the time of death in the range of 1 a.m. to 6 a.m. Excerpts from multiple books on

forensic pathology were read during his cross examination stating that stomach contents were a poor

indicator of time of death. Moreover, the defense presented two forensic experts, each of whom

testified based on their own experience and the relevant scientific literature on stomach-emptying

times that Dr. Bayardo’s conclusion had no scientific basis. According to both experts, Christine

could have been killed after appellant left for work.




                                                  14
               The murder weapon was never found. Appellant owned a billy club, and wood chips

were found in appellant’s car. However, the wood chips found in appellant’s car did not match the

wood chips found embedded in Christine’s head and hair, and there was testimony to the effect that

a billy club would not have disintegrated in the fashion that occurred in Christine’s murder.

               Seeking DNA testing on the bandana, appellant relies on Routier v. State, in which

the defendant was convicted of stabbing her child to death. See 273 S.W.3d at 244. In Routier, a

tube sock was recovered in an alley behind, and a few houses down from, the defendant’s house

where her two sons were killed. See id. at 249. The defendant filed a chapter 64 motion to have

tested, among other items, a blood stain on the sock that had been tested before the 1996 trial but did

not yield any result at that time. See id. at 250-51. The court of criminal appeals held that the

defendant’s request satisfied article 64.03(a)(2)(A) because blood from an unknown third party

would place that party at the scene at the time of the killings and would support the defendant’s

theory of an “unknown intruder” committing the crimes. See id. at 257-59.

               This case is similar to Routier in that each defendant argued the existence of an

unknown intruder and the State in both cases argued that the defendant committed the murder

and staged the crime scene to give the appearance of an intruder. See id. at 258-59. While in Routier

the item of clothing found a short distance from the house was already known to contain the victim’s

blood, see id. at 249, and thus was clearly connected to the crime, appellant in this case should have

the opportunity to determine by DNA testing both whether the bandana contains Christine’s blood

and thus is connected to the crime and whether it contains a third party’s DNA. See id. The State

argues that we should reach a different conclusion than that reached in Routier because in this



                                                  15
case “there is no trail of items leading from the epicenter of the crime to a remote location.”

However, we must assume that the results of the DNA testing would prove favorable to appellant.

See id. at 257. If the bandana contains Christine’s blood, it is sufficient by itself to establish a trail.

Moreover, the State’s argument ignores the unidentified fingerprints and footprint on the trail

between the “epicenter of the crime” and the “remote location” where the bandana was found.

                The jury in this case was confronted with two conflicting theories of how Christine

was murdered, each dependent on circumstantial evidence. There was conflicting testimony on the

time of death. There was also conflicting testimony as to whether appellant showed the type of

surprise and grief from the crime that one might reasonably expect from an innocent husband.

However, there were factors that belied appellant’s guilt. Appellant did not act in an unusual manner

during the period of time between allegedly killing his wife and being informed that his wife was

dead, and he cooperated with the murder investigation. Moreover, the Mortons’ three-year-old son

was left alone in the house such that he might find the dead body of his mother (in fact, at some point

after the murder, he apparently had touched the suitcase on top of the body). If appellant left for

work when his wife was already dead, it is arguably unlikely that he would leave the scene in a

manner that his three-year-old son be left unattended and might find the body. Appellant’s note in

the bathroom contained details that one generally would not want made public and that referenced

the very rejection that the State used as his motive at trial. If appellant were in fact the murderer

and was attempting a cover-up, one would expect him to have written a more innocuous and less

candid note.




                                                    16
               If, then, the bandana were found to contain Christine’s blood and the DNA of a

person other than appellant, we think that adding this DNA evidence, which corroborates appellant’s

theory of an unknown intruder, could have influenced the jury’s verdict in appellant’s favor. The

third party’s DNA would be compelling evidence of a perpetrator other than appellant. At trial, to

support his theory of an unknown intruder, appellant had to rely primarily on an unlocked door,

unidentified fingerprints, one unidentified footprint, and his own denial of guilt. A bandana stained

with Christine’s blood and containing another person’s DNA, discovered across the wooded area

from the Mortons’ house, would provide direct support for appellant’s theory that the murderer

escaped through the sliding glass door, over the backyard fence, and along the path through the

wooded area. We recognize that such exculpatory results would not prove appellant’s actual

innocence. It would remain a possibility, for instance, that after killing his wife that night,

appellant himself went to the construction site, retrieved the bandana from the site, brought it into

the master bedroom to place Christine’s blood on it, and then returned it to the site. However,

considering all the evidence, we conclude that there is greater than a 50% likelihood that the jury

would have harbored a reasonable doubt as to appellant’s being the murderer.


Biological Evidence from the McKinney Murder

               On November 4, 1980, approximately one-half mile from the Mortons’ future home,

a 73-year-old woman named Mildred McKinney was murdered in her home. McKinney had been

beaten, strangled, and raped in her bedroom, and blood had splattered to the ceiling above the

headboard of the bed where she had been beaten. A chair and end table were stacked on top of her




                                                 17
head and chest, and a bloody fingerprint was left on an unlocked sliding glass door. The home had

been ransacked, and no murder weapon was found at the scene.

               At the time of appellant’s trial, an indictment against a suspect in the McKinney

murder was pending, and that murder was not raised at appellant’s trial. Subsequent to appellant’s

conviction for Christine’s murder, however, it was determined that the suspect was not in Texas at

the time of the McKinney murder, and according to the State the investigation into that murder

remains “ongoing and active.”

               In his chapter 64 motion, appellant sought the inspection, analysis, and DNA testing

of biological evidence collected from the scene of the McKinney murder, including any genital

swabs/smears from her “rape kit,” hair samples, and fingernail clippings. Appellant wants the results

of such testing compared to the evidence from the Morton crime scene in hope of identifying a single

perpetrator of both crimes, and he also suggests that the results could lead to a perpetrator of the

McKinney murder who eventually confesses to Christine’s murder as well.

               Article 64.01(b) of the code of criminal procedure requires that evidence that is

subject to a motion for forensic DNA testing be “secured in relation to the offense that is the basis

of the challenged conviction.” Tex. Code Crim. Proc. Ann. art. 64.01(b); see also State v. Patrick,

86 S.W.3d 592, 594-96 (Tex. Crim. App. 2002) (finding absence of jurisdiction to order

DNA testing when chapter 64 requirements not met). Appellant contends that the McKinney

evidence satisfies the statute’s “in relation to” language, either because DNA testing could

scientifically prove that the murders are related, or because the facts of the two murders—even prior

to DNA comparisons—are “disturbingly similar.”



                                                 18
                When construing a statute, we begin with its plain language. See Boykin v. State,

818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (“[W]e necessarily focus our attention on the literal

text of the statute in question and attempt to discern the fair, objective meaning of that text at the

time of its enactment.”). Under the plain language of article 64.01(b), in order for appellant’s motion

for DNA testing to be granted, the evidence must have been “secured in relation to” Christine’s

murder. See Tex. Code Crim. Proc. Ann. art. 64.01(b). Appellant’s construction of this statutory

phrase ignores the word “secured.” Regardless of the extent to which the McKinney murder might

relate to Christine’s murder, appellant cannot have any evidence from the former crime tested unless

such evidence was secured in relation to the latter crime—the offense that is the basis of the

challenged conviction. See id. Evidence from the McKinney murder does not satisfy this statutory

requirement.6


       6
          Our review of the legislative history of Texas Code of Criminal Procedure chapter 64
provides support for this statutory construction. We have found no discussion of the phrase at
issue—“secured in relation to”—during the relevant legislative committee hearings or floor debates.
However, we note that other states had enacted statutes relating to post-conviction DNA testing
during the decade preceding the 2001 enactment of Texas’s version. See Eric A. Fisher,
“DNA Evidence: Legislative Initiatives in the 106th Congress,” at 11-13 (Jan. 26, 2001). Both
New York’s and Illinois’s versions contained the word “secured.” See N.Y. Crim. Proc. Law
§ 440.30(1-a)(a) (McKinney 2005) (“secured in connection with the trial resulting in the judgment”);
725 Ill. Comp. Stat. 5/116-3(a) (West 2008) (“secured in relation to the trial which resulted in his
or her conviction”). In contrast, Arizona’s version did not contain the word “secured.” See
Ariz. Rev. Stat. Ann. § 13-4240(A) (2001) (“related to the investigation or prosecution that resulted
in the judgment of conviction”). This less restrictive version was “very similar” to a model statute
that had been drafted in 2000 by the National Committee on the Future of DNA Evidence. See
Fisher, “DNA Evidence,” at 12.

           The Texas Legislature, therefore, had at least two existing approaches it could have
followed. Indeed, while the legislation that was enacted contains language similar to New York and
Illinois law, see Tex. S.B. 3, 77th Leg., R.S. (2001) (“secured in relation to the offense that is the
basis of the challenged conviction”), another bill introduced during the 2001 legislative session

                                                  19
                This does not mean, however, that we consider appellant’s request to have the

McKinney evidence tested to be unreasonable under the circumstances. It seems to us that testing

this evidence may, in fact, both exhibit prudent investigation practice and serve the interest of justice.

However, we hold (as we must based on the current statutory language) that, under chapter 64 as

currently written, appellant is not entitled to compel such testing. It is likely that the “secured in

relation to” language is an attempt by the legislature to find a proper balance between opening

the door for a wrongfully convicted person to prove his innocence via DNA testing and not opening

the floodgates to require testing of any evidence held by the State in any county and in any case no

matter how tenuous the connection to the crime for which the person was convicted. However, in

view of the similarities between the two murders at issue here—the same neighborhood, potential

method of entry, and stacking of items on the body—this case does not appear to implicate any

concern over a lack of relatedness to the crime for which appellant was convicted. It may be that the

legislature, when originally enacting chapter 64, did not take into account this type of situation,

where a convicted person seeks to prove his innocence by testing evidence secured in relation to a

separate, but similar or potentially related, criminal offense. In short, we think this is an issue that

the legislature should consider addressing.7



contained language similar to the Arizona statute, see Tex. H.B. 157, 77th Leg., R.S. (2001) (“relates
to the investigation or prosecution that resulted in the person’s conviction”). This bill was not
enacted. Thus, the legislature had the opportunity to enact legislation that did not contain the
“secured in relation to” language and yet enacted legislation containing such language.
        7
         We note that article 64.01(b) also requires that evidence be “in the possession of the state
during the trial of the offense.” See Tex. Code Crim. Proc. Ann. art. 64.01(b) (West Supp. 2009).
This language alone would prohibit the testing of evidence from any crime that occurred after the
convicted person’s trial.

                                                   20
               Nonetheless, Texas Code of Criminal Procedure article 64.01(b) requires that,

for DNA testing to be ordered under chapter 64, the evidence must be secured in relation to the

offense that is the basis of the challenged conviction. See id. Evidence collected in connection with

the investigation of the McKinney murder was not—and has not been—secured in relation to

Christine Morton’s murder. Therefore, we affirm the district court’s denial of appellant’s motion

to have DNA testing performed on biological evidence collected from the scene of the

McKinney murder.


Fingerprint Evidence

               Investigators of Christine’s murder lifted approximately fifteen fingerprints from

the crime scene that were not matched to appellant, Christine, or their son, including two from

the unlocked sliding glass door and others from the master bedroom. In his chapter 64 motion for

DNA testing, appellant sought a “comparative analysis by an independent fingerprint analyst” of

those fingerprints and unidentified prints found at the scene of Mildred McKinney’s murder.

Appellant also asked that both sets of fingerprints be entered into a national fingerprint database for

purposes of locating potential matching candidates.

               A chapter 64 motion applies to “evidence containing biological material.” See id.

art. 64.01(a). Appellant does not seek to test biological material such as blood or skin cells from

the fingerprints. Appellant seeks only to investigate the identifying characteristics inherent in

the fingerprints themselves. This type of fingerprint analysis is not covered by chapter 64 of the

code of criminal procedure because it does not involve testing of biological material. See Skinner

v. State, 122 S.W.3d 808, 812 n.4 (Tex. Crim. App. 2003).

                                                  21
               The legal question of whether this type of analysis can be compelled under chapter 64

is, of course, distinct from the practical question of whether such an analysis should be done or

has been done. It would seem apparent that the unidentified fingerprints from each crime scene

should, at a minimum, be compared to one another. The crimes were committed in the same

neighborhood and share at least some similar characteristics, and the McKinney case remains

unsolved. It is not clear to this Court whether such a comparative analysis has taken place or what

the results were. Neither the State’s briefing to this Court nor its presentation at oral argument

clarified this point.8 If such an analysis has taken place, the question of whether the appellant could

compel such an analysis under chapter 64 would be moot.9 If such an analysis has not taken place,

one immediately wonders what such an analysis might yield—at a minimum for the investigation

of the McKinney matter.10

               Nonetheless, the State is correct that a comparative analysis of this evidence cannot

be compelled under chapter 64 of the code of criminal procedure. Consequently, we affirm the

district court’s denial of appellant’s motion to have both independent and comparative analyses

performed on the relevant fingerprint evidence from this case and the fingerprints collected in the

McKinney case.


       8
         The State’s counsel responding to questions at oral argument stated that he did not know
whether such an analysis has been done.
       9
          Because of this possibility of mootness, a definitive answer regarding the occurrence of,
and results from, a comparative analysis is relevant to our task in this case.
       10
             If nothing else, it might well end speculation regarding the potential for the
unidentified fingerprints to have been left by the same person. This speculation has also caused
Mildred McKinney’s surviving adult daughter to join appellant’s request to have a comparative
analysis of the fingerprints from the two crime scenes performed.

                                                  22
Conclusion

               We affirm the district court’s July 24, 2008 order denying appellant’s motion

for DNA testing of fingerprint evidence and evidence secured in relation to the murder of

Mildred McKinney. However, the district court’s August 8, 2006 order is reversed to the extent it

denied DNA testing on the blood-stained bandana recovered from behind the Mortons’ house, and

the cause is remanded to the district court for further proceedings consistent with this opinion.




                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed in part; Reversed and Remanded in part

Filed: January 8, 2010

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