                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-14-00238-CR

                    IN RE MICHAEL ANTHONY MOORE


                                Original Proceeding


                          MEMORANDUM OPINION


       Moore was convicted of Burglary of a building in 1988. He did not appeal.

       In 2012, he filed an appeal of the trial court’s denial of his motion for DNA

testing. We affirmed the trial court’s order on January 10, 2013. See Moore v. State, 10-

12-00193-CR, 2013 Tex. App. LEXIS 226 (Tex. App.—Waco Jan. 10, 2013, pet. dism’d).

       It appears that later in 2013 Moore filed an 11.07 writ apparently seeking relief

because certain biological evidence, according to Moore, had not been obtained or

properly tested. His application was disposed of by the Court of Criminal Appeals on

June 5, 2013.
       Moore has now filed what he has labeled a Petition for Writ of Mandamus.

There are a number of procedural problems with the filing but we will use Rule 2 to

look beyond the procedural problems so that we may reach a disposition more

efficiently and promptly. See TEX. R. APP. P. 2; 52.3.

       Under most circumstances such as this we would simply summarily deny

Moore’s petition without any explanation of why he is not entitled to relief. But in this

instance, and hopefully to foreclose more of Moore’s efforts using inappropriate

procedures which waste judicial resources, we will try to explain why he is not entitled

to relief on his claims.

       Moore’s general argument seems to be that he believes he is entitled to relief

because, according to him, the State of Texas (including the City of Bryan’s police

department, the Brazos County District Attorney’s Office, and the Department of Public

Safety) failed to produce evidence for DNA testing sought under Chapter 64 to be

tested after his trial and conviction. He indicates that all the relevant agencies have

stated they do not have any biological materials to test. Based on their responses,

Moore seeks to use Arizona v. Youngblood, regarding the loss or destruction of evidence,

as a basis to overturn his conviction. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,

102 L. Ed. 2d 281 (1988).

       Youngblood and the subsequent cases relying on it apply to evidence that was lost

or destroyed prior to trial. Nothing Moore has presented indicates that any evidence



In re Moore                                                                         Page 2
that may have existed and in the State’s control was lost or destroyed before trial. He is

essentially arguing he is entitled to an acquittal because, over 20 years after his

conviction for burglary, there is no evidence to submit to DNA testing.

       At the time of Moore’s trial, and subsequent thereto, there was no requirement

related to the preservation of the evidence he now seeks even if the evidence did exist at

that time. See Ch. 64, added by Acts 2001, 77th Leg., ch. 2, § 2, eff. April 5, 2001.

Further, Moore has not shown that any evidence that could be subjected to DNA testing

existed at the time of his trial or prior thereto. Nor has Moore shown that DNA testing

of any biological material would have been relevant to his trial, much less that identity

was an issue in the commission of the burglary for which he was convicted. Thus he is

manifestly not entitled to relief for the State’s alleged loss or destruction of biological

evidence from 20 years ago, if any.

       Moore’s DNA claim lacks any legal merit.

       Next it appears from the petition that he seeks relief under 11.07 of the Code of

Criminal Procedure. We have no jurisdiction to grant any relief under this statute. See

TEX. CODE CRIM. PROC. ANN. art. 11.05. Further, it appears that Moore has already filed

at least 16 previous petitions for a writ of habeas corpus under 11.07, and all have been

denied, dismissed, or had no action taken because an “abuse of writ” order has been

entered against Moore for making frivolous legal arguments and filing frivolous




In re Moore                                                                          Page 3
proceedings. Yet again, Moore does not appear to have brought himself within the

circumstances that would entitle him to file a subsequent writ. Id., sec. 4.

       Moore’s 11.07 writ claim, as presented, lacks any legal merit.

       Next, Moore seeks $80,000 “reimbursement for wrongful incarceration under

Tex. Civ. Prac. And Rem. Cod Section 103.001…for every year of wrongful

incarceration.” Such relief is civil in nature and is not the proper subject for relief by a

criminal mandamus proceeding in which Moore is primarily seeking evidence to

allegedly show that he is entitled to relief by a subsequent writ of habeas corpus. There

is a procedure for a civil recovery for wrongful incarceration that might be available but

only if and when Moore has successfully established the wrongfulness of his

incarceration. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 103.001 et seq. (West 2011). He

has not yet established he was wrongfully incarcerated.

       Moore’s Chapter 103 civil reimbursement claim lacks any legal merit.

       In this proceeding, we have tried to address Moore’s arguments to the best that

we can understand them as set out in his petition for a writ of mandamus. We have

expended more of this Court’s time than the merits of his arguments deserve in an

effort to curtail future frivolous filings by Moore. We will not be so generous with our

time in the future.




In re Moore                                                                           Page 4
       Moore’s petition for writ of mandamus lacks any legal merit and is denied.




                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Petition denied
Opinion delivered and filed September 4, 2014
Do not publish
[OT06]




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