                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00178-CR


RUSSELL JAY REGER                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 0579930D

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                       MEMORANDUM OPINION1

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      Appellant Russell Jay Reger appeals the denial of his second motion for

forensic DNA testing. We affirm.

                                  Relevant Facts

      On April 2, 1995, Appellant and his girlfriend were engaged in sexual

relations when Appellant ripped off her shirt.     The girlfriend’s seven-year-old

      1
      See Tex. R. App. P. 47.4.
daughter thought that Appellant was hurting her mother and called her

grandmother for help. A few minutes later, the little girl’s father called to ask his

daughter what was wrong. She was crying and asked her father to come get her.

Appellant picked up the extension telephone, and when the father told Appellant

that he was coming to get his daughter, Appellant replied that he would be

waiting for him. Appellant grabbed and loaded his 30-30 rifle and left the house

to wait for the father on a nearby street corner. When the father arrived with his

girlfriend and opened the passenger door to get out of the car, Appellant fired

across the car, shooting the father in the chest. Appellant shot him three more

times, finishing with a shot into the back of the father’s head.        The medical

examiner testified that although any of the gunshot wounds could have been

fatal, the final shot “virtually destroyed about the back three-fourths of the brain.”

Appellant returned to his house, sat for a while in a closet, and then began

tearing up the house and throwing furniture out the window. The police arrested

him hours later. Appellant admitted to shooting and killing the father, but he

claimed that he did so in self-defense.

      A jury convicted Appellant of murder and assessed his punishment at life

in prison.      The trial court sentenced him accordingly.      This court affirmed

Appellant’s conviction on direct appeal. See Reger v. State, No. 02-96-00217-

CR (Tex. App.—Fort Worth July 31, 1997, pet. ref’d) (not designated for

publication).




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      Appellant filed his original motion for postconviction forensic DNA testing in

2005. The trial court denied his motion. This court affirmed the trial court’s

decision. See Reger v. State, 222 S.W.3d 510, 512 (Tex. App.—Fort Worth

2007, pet. ref’d) (Reger I), cert. denied, 552 U.S. 1117 (2008).

      On February 10, 2012, Appellant filed a subsequent motion for

postconviction forensic DNA testing. In that motion and the attached affidavit,

Appellant admitted shooting the complainant. He filed several other motions,

including a motion for appointment of counsel, which the Honorable Robb

Catalano denied on February 16, 2012. On March 13, 2012, the Honorable Jerry

Woodlock, sitting for Judge Catalano, signed an order proposed by the State,

which included a finding that Appellant’s identity as the perpetrator was not at

issue. But the order itself re-denied the appointment of counsel; it did not deny

the subsequent motion for DNA testing.

      Appellant filed a notice of appeal from that order. But on September 10,

2012, this court abated that appeal to the trial court because the order signed by

Judge Woodlock did not appear to be an appealable order, thus rendering his

notice of appeal prematurely filed. See Tex. R. App. P. 27.1(b). Judge Catalano

signed an order denying Appellant’s subsequent motion for postconviction

forensic DNA testing on September 13, 2012.

      Appellant brings five issues on appeal.




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                        Plenary Power of the Trial Court

      In his first issue, Appellant argues that the trial court “lost its plenary power

jurisdiction” on May 29, 2012, when his motion for new trial was overruled by

operation of law, and, consequently, all subsequent orders and proceedings

performed are void ab initio.     He contends that the August 14, 2012 order

denying his motion to recuse Judge Catalano2 and that the September 13, 2012

order denying his request for DNA testing are void because they were entered

more than 75 days after he had filed his motion for new trial, which was overruled

by operation of law.

      An interlocutory order denying the appointment of counsel in a

postconviction proceeding for DNA testing is not an immediately appealable

order. Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010). Thus,

Appellant’s notice of appeal from Judge Woodlock’s order was prematurely filed.

See Tex. R. App. 27.1(b) (“In a criminal case, a prematurely filed notice of appeal

is effective and deemed filed on the same day, but after, . . . the appealable order

is signed by the trial court.” (emphasis added)). Rather than dismiss the appeal,

we abated it for the trial court to render a final, appealable order. Cf. State v.

Vardeman, No. 05-13-00241-CR, 2013 WL 4033796, at *4 (Tex. App.––Dallas

Aug. 8, 2013, no pet.) (mem. op., not designated for publication) (noting that trial

      2
      Appellant filed this motion in April 2012, on the same day as his notice of
appeal of Judge Woodlock’s order and his motion for new trial. Although Judge
Jeff Walker heard the motion in June 2012, he did not sign the order denying the
motion until August 14, 2012.


                                          4
court retains jurisdiction to render orders in underlying proceedings during

pendency of appeal from interlocutory order); Meineke v. State, 171 S.W.3d 551,

558 (Tex. App.––Houston [14th Dist.] 2005, pet. ref’d) (“While filing a notice of

appeal properly invokes the appellate court’s jurisdiction, it does not

automatically terminate the trial court’s jurisdiction.”) (footnote omitted). Because

Judge Woodlock’s order was interlocutory, the trial court retained jurisdiction to

render a final order; thus, Judge Catalano’s and Judge Walker’s orders are not

void ab initio.   See, e.g., Turner v. State, No. 12-02-00168-CR, 2003 WL

22240324, at *1–2 (Tex. App.––Tyler Sept. 30, 2003, no pet.) (mem. op., not

designated for publication).

      Appellant also questions this court’s authority to abate this case for an

order on his subsequent request for DNA testing. This court properly abated the

appeal to permit the trial court to render a final, appealable order. See Tex. R.

App. P. 27.1(b), 44.4; Dewalt v. State, 417 S.W.3d 678, 685 n.32 (Tex. App.—

Austin 2013, pet. ref’d); Ex parte Crenshaw, 25 S.W.3d 761, 764 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d). We overrule Appellant’s first issue.

                  Qualifications and Authority of the Judges

      In his second issue, Appellant argues that Judge Catalano was disqualified

from presiding over his DNA motion; that regional administrative judge, Judge

Jeff Walker, improperly denied his motion to recuse Judge Catalano; and that

Judge Woodlock was not qualified to rule on Appellant’s motions.




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      Judge Catalano

      An order denying a motion to recuse may be reviewed for an abuse of

discretion on appeal. Green v. State, 374 S.W.3d 434, 445 (Tex. Crim. App.

2012). Appellant contends that Judge Catalano was disqualified from ruling on

his DNA request because Judge Catalano had previously served as an assistant

criminal district attorney with the Tarrant County Criminal District Attorney’s

Office. A judge is disqualified from hearing a case “wherein the judge may be

interested, or where either of the parties may be connected with the judge, either

by affinity or consanguinity, within such a degree as may be prescribed by law, or

when the judge shall have been counsel in the case,” Tex. Const. art. V, § 11, or

“where he may be the party injured, or where he has been of counsel for the

State or the accused, or where the accused or the party injured may be

connected with him by consanguinity or affinity within the third degree, as

determined under Chapter 573, Government Code.” Tex. Code Crim. Proc. Ann.

art. 30.01 (West 2006). The Texas Court of Criminal Appeals has interpreted

these two provisions, explaining that, as applied to former prosecutors, a judge is

disqualified only if the record affirmatively demonstrates that the judge actively

participated as a prosecutor in the very case at bar. Gamez v. State, 737 S.W.2d

315, 319 (Tex. Crim. App. 1987). The mere fact that a judge served as an

assistant district attorney while a defendant’s case was pending does not

disqualify that judge. Id.




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      Judge Jeff Walker, the administrative judge, heard the motion to recuse

and denied the motion based on the evidence presented.           The judgment of

conviction and the criminal docket list two prosecuting attorneys, Fred Rabalais

and Tim Bednarz. Bednarz and former prosecutor Steve Gordon testified that

they and Fred Rabalais were the only assistant criminal district attorneys who

worked on Appellant’s prosecution. The State points out in its brief that the State

Bar of Texas website shows that Judge Catalano did not become a licensed

attorney until May 1996, after Appellant’s trial. See For the Public: Find, STATE

BAR OF TEXAS, http://www.texasbar.com (last visited Sept. 15, 2014). Because

the record amply supports his ruling, Judge Walker did not abuse his discretion in

denying Appellant’s motion to recuse Judge Catalano. See Gamez, 737 S.W.2d

at 319.

      Appellant also contends that Judge Catalano was biased and prejudiced

against him because he had a personal relationship with Fred Rabalais and

because Judge Catalano was involved in a conspiracy to deprive Appellant of his

DNA rights. Nothing in the record supports Appellant’s contentions.

      Judge Woodlock

      Appellant argues that Judge Woodlock was not qualified to sign any orders

relating to his motion for DNA testing because Judge Woodlock did not have a

“current” oath of office and anti-bribery statement. The record reflects that Judge

Woodlock signed an oath of office and anti-bribery statement on January 3,

2005, when he took senior judge status. Appellant argues, without providing


                                        7
authority, that a senior judge’s oath of office and anti-bribery statements expire

after a certain date. Nothing in the law supports Appellant’s argument. See Tex.

Const. art. XVI, § 1.

      Accordingly, we overrule Appellant’s second issue.

     Denial of Jury Trial on Petition to Remove and Denial of Petition to
      Disqualify the Tarrant County Criminal District Attorney’s Office

      In his third issue, Appellant contends that the trial court improperly denied

him a jury trial on the merits of his petition to remove the Tarrant County District

Attorney’s Office and that the trial court improperly denied his petition to

disqualify the Tarrant County Criminal District Attorney’s Office.

      The trial court’s refusal to proceed on Appellant’s petition for removal was

within the trial court’s discretion and is not appealable. See Tex. Local Gov’t

Code Ann. § 87.016(c) (West 2008).           We therefore dismiss this portion of

Appellant’s third issue.

      Appellant also argues that the trial court improperly denied his attempt to

disqualify the Tarrant County District Attorney’s Office because of allegations of

misconduct by a prosecutor several years after he left the District Attorney’s

Office and because of claims of Brady violations that we have already

determined to be without merit. See Reger v. Criminal Dist. Attorney of Tarrant

Cnty., No. 02-09-00363-CV, 2011 WL 3546631, at *7 (Tex. App.—Fort Worth

Nov. 10, 2011, pet. denied) (mem. op. on reh’g). The record does not support

Appellant’s complaints, nor did his complaints justify the disqualification. See



                                         8
Tex. Code Crim. Proc. Ann. art. 2.08 (West Supp. 2014). Thus, we overrule the

remainder of Appellant’s third issue.

             Denial of DNA Testing Because Identity Not at Issue

      In his fourth issue, Appellant contends that the trial court improperly found

that identity was not at issue in determining that he was not entitled to

postconviction forensic DNA testing. The Texas Code of Criminal Procedure

provides that a convicting court may order forensic DNA testing if the court finds

that (1) the evidence still exists in a condition to make DNA testing possible and

has been subjected to the proper chain of custody sufficient to establish that it

has not been substituted, tampered with, replaced, or altered in any material

way, and (2) identity “was or is an issue in the case.” Tex. Code Crim. Proc.

Ann. art. 64.03(a) (West Supp. 2014). Additionally, the convicted person must

establish by a preponderance of the evidence that that person would not have

been convicted if an exculpatory result had been obtained through DNA testing

and that the request for the proposed DNA testing is not made to unreasonably

delay execution of sentence or the administration of justice. Id.

      Identity is not an issue in this case. The issue in this case is not who killed

the deceased but why he was killed. See Birdwell v. State, 276 S.W.3d 642, 646

(Tex. App.—Waco 2008, pet. ref’d). This court has previously determined that

Appellant’s identity as the perpetrator of this murder is not an issue in this case.

See Reger I, 222 S.W.3d at 514. Appellant admitted shooting the deceased but

argued that he did so in self-defense. Id. at 512. Thus, the trial court properly


                                         9
held that identity of the shooter was not at issue.     Accordingly, we overrule

Appellant’s fourth issue.

                                Equal Protection

      Appellant argues in his fifth issue that article 64.03 of the Texas Code of

Criminal Procedure is facially unconstitutional because it deprives a defendant

who claims self-defense from obtaining postconviction forensic DNA testing. At

this point, postconviction forensic DNA testing is not a constitutional right but

merely a statutory one. See Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim.

App. 2000), cert. denied, 532 U.S. 908 (2001). Further, we have previously

addressed and overruled this issue.         See Reger I, 222 S.W.3d at 514–15.

Finally, Appellant’s contention that Skinner v. Switzer, 131 S. Ct. 1289 (2011),

overrules our prior holding is without merit. That case stands for the limited

proposition that a convicted state prisoner may seek postconviction DNA testing

in federal court through a section 1983 claim, not only through a habeas petition.

Id. at 1293, 1298–1300. Accordingly, we overrule Appellant’s fifth issue.

                                   Conclusion

      Having dismissed a portion of his third issue and having overruled the

remainder of his five issues, we deny “Appellant Reger’s Second Motion For

Leave To Abate Appeal To Trial Court And Allow Refiling Of Out-Of-Time Motion

for New Trial; Motion to Disqualify And Motion to Recuse Judge Robb D.

Catalano And; Live Hearing To Expand, Support & Preserve Appellate Record,”

and we affirm the trial court’s judgment.


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                                         /s/ Anne Gardner
                                         ANNE GARDNER
                                         JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: September 18, 2014




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