Abatement Order filed June 21, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-01008-CR
                                  NO. 14-11-01010-CR


                       HARLON RAY BUCKNER, II, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 178th District Court
                                Harris County, Texas
                       Trial Court Cause Nos. 755721 & 755722


                        ABATEMENT ORDER
       Appellant Harlon Ray Buckner, II, appeals the trial court’s order denying his
Motion for DNA testing. He contends that there is no evidence to support the trial
court’s “conclusion that there is not a reasonable probability that[,] had the results been
available at the time of trial, [appellant] would not have been convicted.”

       Appellant was indicted for aggravated kidnapping and sexual assault. In 1997, a
jury found appellant guilty of aggravated kidnapping in cause number 755721 and the
trial court assessed appellant’s punishment at 20 years’ confinement. A jury also found
appellant guilty of sexual assault in cause number 755722, and the trial court assessed
appellant’s punishment at 20 years’ confinement. Appellant appealed his convictions,
and this court affirmed his convictions in 1999. See Buckner v. State, Nos. 14-97-01399,
14-97-01400-CR, 1999 WL 649098 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (not
designated for publication).

       At some point, appellant filed a motion for post-conviction DNA testing; this
motion is not contained in the record before us. The record contains a motion filed by the
State on January 23, 2008, in which the State asked the trial court to make findings
pursuant to Article 64.03 of the Texas Code of Criminal Procedure in response to
appellant’s motion for post-conviction DNA testing. In its January 2008 motion, the
State stated that the Harris County District Clerk’s Office is in possession of the
following evidence:

       key map of streets; 911 transcript; video tape; receipt; photos; diagram of
       street; magazine; brown ball cap; and cassette tape. . . . samples from a
       rape kit; box containing boots, socks, a shirt, shorts, and a belt;
       miscellaneous paper; a wooden club; a bag of clothes; a rape kit; blood,
       hair, and saliva from the applicant; pulled hair from the applicant; and hair
       samples from the complainant. . . . microscope slides containing hairs.
The State filed Proposed Findings and Order pursuant to Texas Code of Criminal
Procedure Article 64.03, and the trial court adopted and signed the State’s Proposed
Findings and Order on January 24, 2008.

       In its 2008 order, the trial court directed among other things that: (1) “an
appropriately qualified professional take a sample of the applicant’s blood and/or saliva;”
(2) the sample be packaged and transported to the Texas Department of Public Safety
(DPS) Crime Lab for testing; (3) “a representative of the Harris County District
Attorney’s Office obtain from the Houston Police Department biological evidence in the
above styled and numbered causes, specifically the following evidence:” (a) “samples
from sexual assault,” (b) “small box containing assorted clothing,” (c) “bag of clothes,”
and (d) “rape kit;” (4) the “Harris County District Attorney’s Office transport such
evidence” to the DPS Crime Lab for testing and comparison; (5) the DPS Crime Lab

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“conduct DNA forensic testing comparing the remaining evidence, excluding hair, in the
primary case with the applicant’s blood and/or saliva sample taken;” and (6) the DPS
Crime Lab “send a written report of the results of the ordered DNA testing to the Court,”
the Harris County District Attorney’s office, and to Crespin Michael Linton, who
presumably was appellant’s appointed counsel.

       On December 19, 2008, the trial court signed the State’s Proposed Findings of
Fact and Order, stating:

              Having considered the Applicant’s motion requesting DNA testing
       of evidence, having examined the results of DNA testing performed by the
       Texas Department of Public Safety, and having heard the State’s motion for
       finding and order in the above-styled cases, the Court makes the following
       finding of fact:
                                   FINDING OF FACT
              The Court finds, pursuant to TEX. CODE CRIM. PROC. ANN. art.
       64.04, that the results of the DNA testing performed in this case pursuant to
       TEX. CODE CRIM. PROC. ANN. art. 64.03 are not favorable to the Applicant,
       Harlan Ray Buckner, and that it is not reasonably probable that, had the
       DNA testing results been available before or during the trial of the offense,
       the Applicant, Harlon Ray Buckner, would not have been prosecuted or
       convicted.
                                          ORDER
              THE CLERK IS ORDERED to send a copy of the State’s Motion
       for Finding Under TEX. CODE CRIM. PROC. ANN. art. 64.04 and Order
       Under art. 64.03(e), along with the Court’s finding of fact that the results of
       DNA testing are not favorable to the Applicant, to the Texas Department of
       Public Safety. . . .
             THE CLERK IS FURTHER ORDERED to send a copy of this
       Finding and Order to the Applicant’s counsel: Crespin M. Linton, 440
       Louisiana, Suite 900, Houston, Texas, 77002; and to the State: Inger M.
       Hampton, 1201 Franklin, Suite 600, Houston, Texas
       77002.
Appellant did not appeal the trial court’s December 19, 2008 order.

       The record shows that the trial court appointed counsel, Tom Martin, to represent
appellant on November 16, 2009 “for the purpose of post-conviction DNA testing.” The

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record before the court does not contain a motion for post-conviction DNA testing filed
by appellant’s appointed counsel or anyone else after November 16, 2009. The record
does contain the State’s Proposed Findings of Fact, Conclusions of Law, and Order,
which the State filed on September 27, 2011 in response to a post-conviction DNA
motion appellant presumably filed sometime in 2009 or thereafter.

       The trial court adopted and signed the State’s Proposed Findings of Fact,
Conclusions of Law, and Order on September 27, 2011, stating:

              Having reviewed the documents filed in cause numbers 755721 &
       755722; the trial court’s original findings granting DNA testing under
       Chapter 64 dated January 24, 2008; the trial court’s original findings under
       Chapter 64 that the testing results were not favorable to the defendant dated
       December 18, 2008; and the Department of Public Safety’s (DPS)
       laboratory report dated October 20, 2008; the Court adopts its previous
       findings of fact and conclusions of law entered in cause numbers 755721 &
       755722 on December 18, 2008.
              The Court finds, pursuant to TEX. CODE CRIM. PROC. ANN. art.
       64.04, that the results of the DNA testing performed in this case pursuant to
       TEX. CODE CRIM. PROC. ANN. art. 64.03 are not favorable to the defendant,
       Harlon Ray Buckner, and that it is not reasonably probable that, had the
       DNA testing results been available before or during the trial of the offense,
       the defendant, Harlon Ray Buckner, would not have been convicted.
                                         ORDER
              THE CLERK IS ORDERED [to] send a copy of this Court’s
       findings of fact denying DNA testing in cause numbers 755721 & 755722
       and the instant order to the Defendant’s appointed counsel, Tom Martin,
       1018 Preston, Ste. 500, Houston, 77002, and to the attorney representing
       the State of Texas, Alicia Devoy O’Neill, 1201 Franklin, Suite 600,
       Houston, Texas 77002.
Appellant now challenges the trial court’s September 27, 2011 order in this appeal.

       Appellant contends on appeal that the “record is insufficient to determine if the
conclusion of the Trial Court, that the results of previous DNA testing were unfavorable
to [appellant], was justifiable.” According to appellant, there is “no evidence to support
this conclusion.” Appellant argues that there is “no indication as to what the test results
demonstrated. Without any evidence of the results of the alleged DNA testing, this Court

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has no way to evaluate the findings of the Trial Court below and certainly no basis to
conduct de novo review.”

       As outlined above, the trial court’s September 27, 2011 order states that, in
concluding that “the results of the DNA testing performed in this case” are not favorable
to appellant, the trial court considered “original findings granting DNA testing under
Chapter 64 dated January 24, 2008; the trial court’s original findings under Chapter 64
that the testing results were not favorable to the defendant dated December 18, 2008; and
the Department of Public Safety’s (DPS) laboratory report dated October 20, 2008.” The
trial court’s September 27, 2011 order does not state that appellant’s motion for post-
conviction DNA testing was deficient.

       Given the circumstances surrounding this record, the trial court is directed to
conduct a hearing and make a written determination as to whether (1) a transcribed
hearing on appellant’s post-conviction DNA motion resulting in the December 19, 2009
order was held; (2) the DPS laboratory report of October 20, 2008 is in existence; and (3)
appellant’s latest motion for post-conviction DNA testing is in existence.               A
supplemental clerk’s record containing those findings shall be filed with the clerk of this
Court on or before July 30, 2012.          Further, we direct the trial court to have a
supplemental record filed with the clerk of this Court on or before July 30, 2012
containing such items as are found to be in existence in the trial court’s written
determination.

       The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the trial
court’s findings and record are filed in this Court. The Court also will consider an
appropriate motion to reinstate the appeal filed by either party.



                                                  PER CURIAM

Panel consists of Justices Boyce, Christopher and Jamison.

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