      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-07-00374-CV



                              Barry Dwayne Minnfee, Appellant

                                                  v.

    Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General,
                                        Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
      NO. D-1-GN-07-001256, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Barry Dwayne Minnfee, an inmate incarcerated in the Texas Department of Criminal

Justice, appeals pro se from a court order dismissing his petition as frivolous and declaring him

a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101-02, 14.003(a)(2)

(West 2002). We affirm the trial court’s order.


                                       BACKGROUND

               Appellant alleges he was wrongfully convicted of sexual assault in April 1991.

Insofar as this Court can discern, in his underlying lawsuit, appellant appears to request post-

conviction DNA testing on evidence obtained in the State’s investigation of the sexual assault

offense to which petitioner pleaded guilty. The defendants, Randall C. Simms, District Attorney
for the 47th District, and Don Clemmer, Deputy Attorney General for Criminal Justice, moved to

dismiss appellant’s lawsuit and to declare him a vexatious litigant.

               We construe appellant’s notice of appeal to complain that the trial court erred when

it declared him a vexatious litigant and dismissed his lawsuit.         The trial court found that

(i) appellant’s lawsuit has no arguable basis in fact or law and is frivolous, see Tex. Civ. Prac. &

Rem. Code Ann. § 13.001(a)(2), (b)(2) (West 2002); (ii) in the seven years preceding the filing of

the defendant’s motion to dismiss, appellant prosecuted in propria persona at least five litigations

finally determined adversely to him and determined to be groundless, see id. § 11.054(1); (iii) there

is not a reasonable probability that appellant will prevail in the present litigation, see id.; and

(iv) appellant is a vexatious litigant, see id. §§ 11.054, .101. The trial court further ordered that

appellant be prohibited from filing any new litigation in any Texas court without obtaining

permission from the local administrative judge of the court as provided in section 11.102 of the

Texas Civil Practice & Remedies Code. See id. § 11.102.


                                          DISCUSSION

               Appellant appears to argue on appeal that the trial court wrongfully dismissed his suit

requesting DNA testing and wrongfully declared him a vexatious litigant.


Standard of Review

               We review the trial court’s dismissal of appellant’s suit as frivolous and its

determination that appellant was a vexatious litigant under an abuse of discretion standard. See

Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)



                                                 2
(dismissal as frivolous); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ)

(same); see also Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006,

pet. denied) (vexatious litigant); Forist v. Vanguard Underwriters Ins., Co., 141 S.W.3d 668, 670

(Tex. App.—San Antonio 2004, no pet.) (same). On an abuse of discretion challenge, we are not

free to substitute our own judgment for the trial court’s judgment. Bowie Mem’l Hosp. v. Wright,

79 S.W.3d 48, 52 (Tex. 2002). We can only find an abuse of discretion if the trial court “acts in

an arbitrary or capricious manner without reference to any guiding rules or principles.” Bocquet

v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). The court’s decision must be “so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.” BMC Software Belg. N.V.

v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002). Applying these principles, we must determine

whether the trial court’s dismissal of appellant’s suit or application of the vexatious litigant statute

constitutes an abuse of discretion.


Dismissal of Appellant’s Suit

                Article 64.01 of the Texas Code of Criminal Procedure authorizes motions for

forensic DNA testing “only of evidence . . . that was secured in relation to the offense that is the

basis of the challenged conviction and was in the possession of the state during the trial of the

offense.” Tex. Code Crim. Proc. Ann. art. 64.01(b) (West Supp. 2007). The motion must be

accompanied by an affidavit by the convicted person containing statements of fact in support of the

motion. Id. art. 64.01(a). The statute allows a convicted person to apply to the state convicting court

for relief if three requirements are satisfied: (1) the evidence still exists and is in a condition making

DNA testing possible; (2) the evidence has been subjected to a chain of custody sufficient to

                                                    3
establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

and (3) identity was or is an issue in the case. Id. art. 64.03(a)(1)(A), (B) (West Supp. 2007). In

addition, the convicted person must also establish by a preponderance of the evidence that: (1) he

would not have been convicted if exculpatory results had been obtained through DNA testing; and

(2) the request for the proposed DNA testing is not made to unreasonably delay the execution of the

sentence or administration of justice. Id. art. 64.03(a)(2)(A), (B). The district court must order post-

conviction DNA testing only when the convicted person satisfies the burden under subsection (a)(2)

and the court finds the requirements listed in subsection (a)(1) have been satisfied. Id. 64.03(c). The

court is not required to grant a defendant’s request for post-conviction forensic DNA testing absent

a showing that reasonable probability exists that may prove the defendant’s innocence through

exculpatory results. Id. art. 64.03(a)(2)(A).

               Appellant has not argued in the pleadings before this Court that he can meet the above

requirements, nor has he shown he can meet his burden of proof. Although appellant seeks DNA

testing, he urges no grounds demonstrating that he is entitled to testing or that testing is warranted

in his case. Appellant does not contend that he can establish by a preponderance of the evidence that

he would not have been convicted if exculpatory results were obtained through DNA testing.

Because he has not adequately alleged any viable cause of action, appellant’s suit has therefore no

arguable basis in law or fact for the relief sought. Accordingly, we conclude that the trial court did

not abuse its discretion when it dismissed appellant’s suit as frivolous. See Tex. Civ. Prac. & Rem.

Code Ann. § 14.003(a)(2), (b)(2).




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Application of Vexatious Litigant Statute

                Chapter 11 of the Texas Civil Practice and Remedies Code provides a mechanism for

restricting frivolous and vexatious litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001-.104

(West 2002 & Supp. 2007). When Chapter 11 was enacted, the legislature sought to strike a balance

between a citizen’s right of access to courts and the public interest in protecting defendants from

those who abuse the civil justice system by systematically filing lawsuits with little or no merit.

Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.—Austin 2005, pet. denied); see also Harris

v. Rose, 204 S.W.3d 903, 906 (Tex. App.—Dallas 2006, no pet.); Willms, 190 S.W.3d at 804. This

chapter provides, in pertinent part, that a court may find a plaintiff is a vexatious litigant if: (1) the

defendant shows that there is a reasonable probability that the plaintiff will not prevail in the

litigation, and plaintiff, acting pro se, has prosecuted, maintained, or commenced at least five other

litigations that have been determined adversely to him within the seven-year period preceding the

motion, or (2) the plaintiff has previously been declared to be a vexatious litigant by a state or federal

court in an action or proceeding based on the same or substantially similar facts. Tex. Civ. Prac. &

Rem. Code Ann. § 11.054(1), (3). The trial court found appellant to be a vexatious litigant, and

appellant does not challenge this finding on appeal.

                We find ourselves at the end of a long list of cases, many emanating from appellant’s

1991 conviction, and others, including a petition for a name change in 2007, relating to the

consequences of his conviction.1 By 2003, appellant had already sustained the “three strikes,” that


        1
          Appellant was required to register as a sex offender and evidently failed to do so. See
Minnfee v. Dretke, No. 2:04-CV-0327, 2005 U.S. Dist. LEXIS 226, at *2 (N.D. Tex. Jan. 6, 2005)
(report and recommendation of magistrate judge), adopted by 2005 U.S. Dist. LEXIS 850 (N.D. Tex.

                                                    5
is, dismissals that fulfilled the “three strikes” provision of the federal Prison Litigation Reform Act

of 1995, see 28 U.S.C. § 1915(g) (2006), barring from further proceedings any prisoner who had

three prior actions or appeals, brought during detention, dismissed as frivolous, malicious, or for

failure to state a claim. See, e.g., Minnfee v. Simpson, No. 2:03-CV-0250, 2003 U.S. Dist. LEXIS

22040, at *2 (N.D. Tex. Dec. 9, 2003) (memorandum opinion, order of dismissal and sanction);

Minnfee v. Neal, No. 2:03-CV-0210, 2003 U.S. Dist. LEXIS 12686, at *2 (N.D. Tex. July 23, 2003)

(memorandum opinion and order of dismissal); Minnfee v. Weaver, No. 2:03-CV-0204, 2003

U.S. Dist. LEXIS 12624, at *2 (N.D. Tex. July 23, 2003) (same); see also Minnfee v. King, No. 3:03-

CV-1311-D, 2003 U.S. Dist. LEXIS 11679, at *1 (N.D. Tex. July 9, 2003) (order adopting

magistrate recommendation of dismissal). No appeals were taken from these dismissals.

               After these dismissals, appellant began filing his challenges to his Texas conviction

and ancillary litigation in various federal courts. See, e.g., Minnfee v. Perry, No. 07-2194, 2007

U.S. Dist. LEXIS 88971, at *1 (D.D.C. Dec. 5, 2007) (order of dismissal for lack of jurisdiction);

Minnfee v. Associate Att’y Gen., No. C07-5517RBL, 2007 U.S. Dist. LEXIS 87244, at *1 (W.D.

Wash. Nov. 26, 2007) (order dismissing habeas petition for lack of venue); Minnfee v. Associate

Att’y Gen., No. C07-399-JCC, 2007 U.S. Dist. LEXIS 31887, at *1-2 (W.D. Wash. May 1, 2007)

(order of dismissal); Minnfee v. Quarterman, No. 2:07-CV-0061, 2007 U.S. Dist. LEXIS 27963, at

*1 (N.D. Tex. Apr. 13, 2007) (order dismissing habeas petition for lack of jurisdiction); Minnfee

v. Quarterman, No. 2:07-CV-0061, 2007 U.S. Dist. LEXIS 27955, at *5-6 (N.D. Tex. Apr. 3, 2007)




Jan. 19, 2005) (order adopting magistrate judge’s recommendation and dismissing petition for writ
of habeas corpus).

                                                  6
(recommendation to dismiss successive habeas petition); Minnfee v. Jones, No. C07-0200-JLR,

2007 U.S. Dist. LEXIS 20543, at *1 (W.D. Wash. Mar. 13, 2007) (order adopting magistrate

recommendation of dismissal);2 Minnfee v. Jones, No. C07-0200-JLR, 2007 U.S. Dist. LEXIS

20545, at *1-3 (W.D. Wash. Feb. 21, 2007) (recommendation to dismiss complaint); Minnfee

v. Dretke, No. 2:03-CV-0029, 2004 U.S. Dist. LEXIS 24605, at *1 (N.D. Tex. Dec. 6, 2004)

(recommending dismissal of habeas petition for DNA testing). And there are others. Appellant has

not prevailed in a single case. He has been barred from filing actions in the Northern District of

Texas without first obtaining leave from the court because of the frivolous nature of his lawsuits and

his refusal to pay various monetary sanctions imposed on him by the federal courts. See, e.g.,

Minnfee, 2003 U.S. Dist. LEXIS 22040, at *3-4.

                Based upon our review of the record, we cannot conclude that the trial court abused

its discretion when it found that appellant was a vexatious litigant. See Tex. Civ. Prac. & Rem. Code

Ann. § 11.054. Appellant was not likely to prevail in the underlying litigation, having failed to

adequately assert any cause of action or any basis for obtaining post-conviction DNA forensic testing

or demonstrating that he could carry his burden of proof on any of the requirements of the statute.

See id. Within the seven-year period preceding defendants’ motion to declare appellant a vexatious

litigant, appellant had prosecuted in propria persona at least five litigations finally determined

adversely against him and determined to be groundless. See id. § 11.054(1). Yet even after several

of appellant’s suits have been finally determined adversely to appellant, he continues to file


        2
          Here, the federal court observed that appellant had not adequately alleged any viable cause
of action and that “it appears the only reason [appellant] filed the instant action in this District is to
circumvent filing restrictions imposed by other federal district courts.”

                                                    7
additional suits involving the same facts, claims, or controversies previously determined against him.

See id. § 11.054(2)(B). Finding no abuse of discretion, we resolve appellant’s issue against him.


                                          CONCLUSION

               Having overruled appellant’s issue, we affirm the trial court’s order of dismissal and

declaration that appellant is a vexatious litigant.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: March 13, 2008




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