                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00308-CR


MUQTASID A. QADIR                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Muqtasid A. Qadir appeals the trial court’s order denying his third

motion for DNA testing of evidence related to his murder conviction. 2 Because

we conclude that the trial court did not err by denying the motion, we affirm.



      1
       See Tex. R. App. P. 47.4.
      2
      See Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006); see also Tex.
Penal Code Ann. § 19.02(b) (West 2011).
                                 Background Facts

      This is not appellant’s first proceeding in this court. In affirming the trial

court’s denial of one of his prior motions for DNA testing, we provided details

related to his conviction and life sentence for murdering his girlfriend and the

litigation that has followed, explaining,

      The evidence showed that Qadir’s girlfriend, Barbara Johnson, was
      stabbed to death and found by her grandfather, Joe McLane, at his
      house, where she resided. Johnson had been repeatedly stabbed in
      her shoulders, head, neck, hands, and arms. McLane called the
      police, who arrived shortly thereafter and secured the scene.
      McLane looked through the house but did not discover anything
      missing. Fort Worth Police Officer G.T. Baskin was one of the first
      officers on the scene, and in his search of the premises, he
      discovered a trail of blood leading away from the house to the north.
      Other officers gathered evidence, such as blood samples and
      fingerprints, at the scene.

             The day after the murder, Detective John Thornton questioned
      Qadir at his place of work, ostensibly because he had been dating
      Johnson.      During the interview, Thornton became suspicious
      because Qadir’s hand was cut; Detective Thornton invited Qadir
      down to the station. Police procured a warrant for samples of
      Qadir’s blood, hair, and saliva and tests later revealed that the blood
      matched the blood type of some of the samples taken from different
      locations at the scene of the murder. Further DNA testing provided
      an even more conclusive match. A letter describing details of the
      crime that had not been released to the public was later received by
      the police. Qadir’s fingerprint was on the envelope. Additional
      evidence was elicited that Qadir had recently threatened Johnson
      several times.

             Since his conviction, Qadir has filed several appeals to this
      court. In 1996, Qadir appealed his conviction directly to this court.
      This court affirmed his conviction. In 1999, Qadir appealed to this
      court attempting to reverse the trial court’s denial of his motion to
      recuse the judge presiding over his post-conviction habeas corpus
      petition. In 2002, Qadir appealed to this court attempting to reverse
      an order denying his motion to recuse the same judge from presiding


                                            2
      over his request for DNA testing. In 2009, Qadir filed a petition for
      mandamus in this court, asking us to compel the presiding judge to
      rule on a motion for DNA testing that he asserted had been pending
      in the trial court for seven years without a ruling. In that opinion, we
      noted that the trial court had informed us that Qadir’s case file had
      been closed for several years and that there was no pending motion
      for DNA testing.

Qadir v. State, No. 02-09-00276-CR, 2010 WL 3377794, at *1 (Tex. App.—Fort

Worth Aug. 27, 2010, pet. ref’d) (mem. op., not designated for publication)

(citations omitted).

      In our 2010 opinion, we affirmed the trial court’s order denying appellant’s

second motion for DNA testing. Id. at *1–3. We explained that the trial court had

not erred by denying his motion to test several items—including broken glass jar

fragments, a table knife, and a footprint from carpet—because DNA testing had

been available at the time of appellant’s trial to test the items in the manner that

he had desired. See id. at *2. 3 We also noted that appellant had made collateral


      3
       In 2010, the code of criminal procedure allowed for DNA testing of
untested biological material only when testing was unavailable at the time of trial,
was available but not capable of being probative, or was available but the
material was not tested through no fault of the convicted person. See Qadir,
2010 WL 3377794, at *2; see also Booker v. State, No. 05-11-01141-CR, 2012
WL 6635227, at *4 (Tex. App.—Dallas Dec. 21, 2012, pet. ref’d) (not designated
for publication). In 2011, the legislature relaxed chapter 64’s requirements by
allowing testing of untested biological material when it was simply “not previously
subjected to DNA testing.” See Act of May 20, 2011, 82nd Leg., R.S., ch. 366,
§ 1, 2011 Tex. Sess. Law Serv. 1015 (West) (current version at Tex. Code Crim.
Proc. Ann. art. 64.01(b)(1) (West Supp. 2013)). Therefore, because the law
currently does not require a reason why untested material was not tested, the
standards and issues related to this appeal are different than the issues upon
which we decided appellant’s previous appeal. See Qadir, 2010 WL 3377794,
at *2.


                                         3
attacks on his murder conviction that we had no jurisdiction to resolve. Id. at *3

(“Although chapter 64 of the code of criminal procedure authorizes forensic DNA

testing in cases in which the applicant meets the requirements enumerated in the

statute, these amendments do not confer jurisdiction upon this court to entertain

collateral attacks on the . . . conviction . . . .”).

       In September 2012, appellant filed a third motion for DNA testing. He

again appeared to argue that broken glass jar fragments, a bloody table knife,

and a bloody carpet section should be tested. 4         Appellant alleged that one

forensic scientist had not tested all blood evidence and that the items tested by

that scientist were inconclusive with respect to inculpating anyone.        He also

asserted that the record from his trial revealed the possibility of preexisting blood

stains at the residence where the murder was committed and alleged that any

such bloodstains matching his own should not have inculpated him.              Thus,

appellant argued that the State should have conducted a “time frame blood

analysis.”

       The State filed a response to appellant’s motion, conceding the existence

of biological evidence related to his conviction but asking the trial court to deny

the third motion because “evidence already subjected to forensic DNA testing

[had] inculpated him.” Specifically, the State contended that tests had revealed


       4
        In an affidavit attached to the motion, appellant contended that DNA
testing of these items would reveal that he was not connected “in the least . . . to
this crime.”


                                              4
DNA profiles matching appellant’s profile from blood samples on a bathroom

wall, sink, and floor; a front door; a porch; an iron handle; and a sheet. 5

According to the State, the already-conducted tests established that the

probability of an unrelated individual having the same profile as the profile from

the blood found on those items was “approximately one in 1.6 billion Caucasians,

one in 132 million Hispanics, and one in 360 [m]illion African-Americans.”

      While the State recognized that appellant was seeking to test items other

than those previously tested, it contended,

      [G]iven that [appellant’s] blood was found all over Barbara Johnson’s
      murder scene, it is unlikely that newer testing of this evidence or any
      other evidence would provide results which would exonerate him.

            Thus, [appellant] does not meet the article 64.01 requirements
      for post-conviction forensic DNA testing, and his new request should
      be denied.

            ....

            Given the prior forensic DNA testing inculpating [appellant],
      there is no reasonable probability that further DNA testing would
      prove his innocence.

Finally, the State argued that evidence outside of DNA testing connected

appellant to the murder, including that Johnson had been repeatedly stabbed,

that appellant was known to carry a knife, that he had fresh injuries to his right

hand when the police interviewed him on the day after the discovery of Johnson’s

body, that his fingerprints were on an envelope containing an anonymous letter



      5
       The record contains a lab report that substantiates this contention.


                                        5
that described the murder, and that he had threatened to kill Johnson shortly

before her death.

      On the same day that the State filed its response to appellant’s motion, it

also filed proposed findings of fact and conclusions of law. Approximately two

weeks later, the trial court adopted those findings and conclusions and denied

appellant’s motion. 6 The court found and concluded as follows:

                              FINDINGS OF FACT

            1. The defendant was convicted by a jury of the offense of
      murder . . . and sentenced . . . to confinement for life on February
      26, 1996. . . .

            ....

            3. This Court denied the defendant’s previous request for
      post-conviction forensic DNA testing because he did not meet the
      requirement of article 64.01 of the Code of Criminal Procedure. . . .

            ....

            5. Serologist Jamie King of the Fort Worth Police Department
      Crime Laboratory conducted forensic DNA testing on blood samples
      taken from:

            •   The bathroom wall, sink[,] and floor;
            •   The front door exterior;
            •   The porch;
            •   The iron handle; and
            •   A sheet. . . .



      6
        We dismissed a previous appeal by appellant because at that time, the
trial court had not yet denied appellant’s third motion. Qadir v. State, No. 02-12-
00558-CR, 2013 WL 1337944, at *1 (Tex. App.—Fort Worth Apr. 4, 2013, no
pet.) (mem. op., not designated for publication).


                                         6
       6. Ms. King found that the defendant’s DNA profile matched
the DNA profile of the blood samples from the bathroom wall and
sink, the front door exterior, the porch, and the sheet at all loci; and
two bands of the blood sample from the iron handle at all loci. . . .

         7. Ms. King found that the defendant’s profile matched two of
the bands of the blood sample from the bathroom floor at three
loci. . . .

      ....

      9. The defendant cannot be excluded as the contributor of the
blood found all over Barbara Johnson’s murder scene.

     10. It is unlikely that newer testing of evidence would provide
exonerating results given that previously-tested DNA evidence
showed the presence of the defendant’s blood all over the murder
scene[.]

      11. The defendant does not meet the article 64.01
requirements for post-conviction forensic DNA testing.

      ....

      19. There is no reasonable probability that DNA testing of
other evidence could exonerate the defendant given the previously-
tested DNA evidence inculpating him and the other evidence
connecting him to Barbara Johnson’s murder.

      20. The defendant does not meet the article 64.03
requirements for post-conviction forensic DNA testing.

                      CONCLUSIONS OF LAW

        1. A convicted person may request forensic DNA testing of
evidence not previously tested or evidence previously subjected to
DNA testing where subjecting the evidence to newer testing
techniques would provide a reasonable likelihood of results that are
more accurate and probative than the results of the previous
test. . . .

      2. The key issue in considering new requests regarding
previously tested evidence is whether the type of DNA testing


                                   7
      available and used to test the evidence was capable of providing
      probative results. . . .

            3. It is unlikely that newer DNA testing of previously-tested
      evidence or untested evidence would provide results which would
      exonerate the defendant. . . .

            ....

            5. A convicted person must establish that there exists a
      reasonable probability that exculpatory DNA testing of the evidence
      for which he seeks testing would prove his innocence. . . .

            6. There is no reasonable probability that DNA testing of other
      evidence could exonerate the defendant given the previously-tested
      DNA evidence inculpating him and the other evidence connecting
      him to Barbara Johnson’s murder.

Appellant brought this appeal.

                       The Denial of Appellant’s Motion

      We review a trial court’s denial of a motion for DNA testing of biological

material under a bifurcated standard. Rivera v. State, 89 S.W.3d 55, 59 (Tex.

Crim. App. 2002).       We afford almost total deference to a trial court’s

determination of issues of historical fact, but we review de novo the trial court’s

applications of the law to facts as long as those applications do not turn on

credibility and demeanor of witnesses. 7 Id.; see Harbour v. State, No. 02-10-

00558-CR, 2011 WL 3795256, at *1 (Tex. App.—Fort Worth Aug. 25, 2011, no

pet.) (mem. op., not designated for publication).



      7
      The trial court did not receive live testimony on appellant’s third motion for
DNA testing; we do not have a reporter’s record related to the motion.


                                         8
      Chapter 64 of the code of criminal procedure allows a convicted person to

file a motion for forensic DNA testing of evidence containing biological material.

See Tex. Code Crim. Proc. Ann. art. 64.01(a)(1), (a-1); State v. Swearingen,

No. AP-77020, 2014 WL 440910, at *3 (Tex. Crim. App. Feb. 5, 2014). A motion

under article 64.01 must be accompanied by an affidavit that is sworn to by the

convicted person and that contains facts in support of the motion. Tex. Code

Crim. Proc. Ann. art. 64.01(a-1). The biological material to be tested must have

either not been previously tested, or if previously tested, the convicted person

must show that “newer testing techniques . . . provide a reasonable likelihood of

results that are more accurate and probative than the results of the previous

test.” Id. art. 64.01(b); see Swearingen, 2014 WL 440910, at *3.

      The trial court may order DNA testing of biological material only when the

convicted person proves by a preponderance of the evidence that a conviction

would not have occurred if exculpatory results had been obtained through testing

of the material at issue. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (West

Supp. 2013); Swearingen, 2014 WL 440910, at *3, *5 (“In order to be entitled to

DNA testing, the [movant] must show by a preponderance of the evidence (51%)

that he would not have been convicted if the exculpatory results were available at

trial.”); Ex parte Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011).

Evidence that could establish the possibility of another DNA contributor to the

scene of a crime does not meet this requirement when a “mountain of evidence”

supports the defendant’s guilt. See Swearingen, 2014 WL 440910, at *5. It is


                                        9
not sufficient for a movant under chapter 64 to establish that a new DNA test

result would merely “muddy the waters” on the validity of a conviction. Hill v.

State, No. 02-11-00398-CR, 2012 WL 4010460, at *12 (Tex. App.—Fort Worth

Sept. 13, 2012, no pet.) (mem. op., not designated for publication) (explaining

that the “mere presence of a third party’s DNA at a crime scene does not

establish a reasonable probability of an appellant’s innocence when it does not

explain away all of the other evidence pointing to his guilt”).

      Liberally construing appellant’s pro se arguments in the trial court and this

court together, it appears to us that he seeks testing of two groups of evidence.

The first group comprises evidence that has not been tested and includes broken

glass jar fragments, a table knife, and a carpet section containing a bloody

footprint. Concerning these items, we agree with the State’s argument and the

trial court’s finding that appellant has not met his burden under article

64.03(a)(2)(A).

      In other words, given the substantial evidence supporting appellant’s

conviction—including the presence of his blood on many items at the murder

scene, 8 the appearance of his fingerprint on an envelope 9 containing a letter that

      8
        Appellant does not deny this fact. Instead, he contends that the evidence
at his trial supported an inference that he bled in the house before the murder
was committed.
      9
        Appellant appears to contest this fact, alleging that his fingerprint was
“planted.” But the weight of this evidence may not be relitigated through a motion
filed under chapter 64. See Qadir, 2010 WL 3377794, at *3; In re Morton, 326
S.W.3d 634, 647 (Tex. App.—Austin 2010, no pet.).


                                         10
described the murder, and evidence of his repeated threats to his victim before

her death—we conclude that he has not shown by a preponderance of the

evidence that he would not have been convicted if the jar fragments, knife, and

footprint contain DNA profiles that do not match his. See Tex. Code Crim. Proc.

Ann. art. 64.03(a)(2)(A); Swearingen v. State, 303 S.W.3d 728, 736 (Tex. Crim.

App. 2010) (“Texas courts have consistently held that a movant does not satisfy

his burden under Article 64.03 if the record contains other substantial evidence of

guilt independent of that for which the movant seeks DNA testing.”); Prible v.

State, 245 S.W.3d 466, 470 (Tex. Crim. App.) (affirming a trial court’s denial of

postconviction DNA testing because “even if the evidence was retested and

determined to contain another person’s DNA in addition to [the defendant’s]

DNA, it would not establish by [a] preponderance of the evidence that [the

defendant] would not have been convicted”), cert. denied, 555 U.S. 833 (2008);

Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (“The presence of

another person’s DNA at the crime scene will not, without more, constitute

affirmative evidence of appellant’s innocence.”); see also Baylor v. State, No. 02-

10-00561-CR, 2011 WL 4008026, at *3 (Tex. App.—Fort Worth Sept. 8, 2011, no

pet.) (mem. op., not designated for publication) (relying on evidence presented at

the defendant’s trial and recited in an earlier appellate opinion to affirm a trial

court’s denial of his later motion for DNA testing). We hold that the trial court did

not err by denying appellant’s motion to allow testing of glass jar fragments, a

table knife, and a carpet section containing a bloody footprint.


                                         11
      The second group of evidence includes items that were already tested.

Appellant appears to argue that these items should be retested to prove that his

blood appeared at the murder scene before the murder occurred. He asks for a

“Time Frame Blood Analysis.”

      To obtain testing of evidence that has already been tested, the movant

must show that the evidence “can be subjected to testing with newer testing

techniques that provide a reasonable likelihood of results that are more accurate

and probative than the results of the previous test.” Tex. Code Crim. Proc. Ann.

art. 64.01(b)(2).   We agree with the trial court’s finding and conclusion that

appellant did not establish this requirement under article 64.01. In his motion,

appellant alleged that a serologist had generally testified to “there being a way to

tell how old blood is, but nothing specific.” He also alleged that the record from

his trial revealed the “possibility of ‘preexisting blood stains’” before the murder

occurred.    With regard to proving such preexisting blood stains, appellant

alleged, “[T]oday in our society we have much advanced technology in the

Scientific Discovery of Evidence . . . to the point that we are able to determine . . .

how old bones are of our forefathers and prehistoric animals . . . .”

      These statements do not satisfy article 64.01’s requirement. See id. That

is, they do not prove that evidence already tested can now be tested again with a

newer technique that will be probative on the issue of whether appellant’s blood

appeared on items at the murder scene before the crime occurred, as he alleges.

Cf. Swearingen, 303 S.W.3d at 735 (“[A]ppellant has not shown a reasonable


                                          12
likelihood that results [from a newer testing technique] would be more accurate or

probative.”); Routier v. State, 273 S.W.3d 241, 250 (Tex. Crim. App. 2008)

(holding that a defendant was not entitled to retest blood stains on a sock

because she failed to establish that newer testing results would be more

probative than results of previous testing); Marks v. State, No. 02-09-00144-CR,

2010 WL 598459, at *1 (Tex. App.—Fort Worth Feb. 18, 2010, no pet.) (mem.

op., not designated for publication) (“[The movant] failed to allege, much less

prove, that [the testing company] will utilize ‘newer testing techniques that

provide a reasonable likelihood of results that are more accurate and probative

than the results of the previous test.’ Thus, he did not meet the requirements of

article 64.01(b)(2).”). Therefore, we conclude that the trial court did not err by

denying appellant’s motion to allow testing of material that had already been

tested.

      Next, many of appellant’s arguments in the trial court and on appeal do not

directly concern the trial court’s denial of his third motion for DNA testing but

instead focus on issues related to his trial or actions that preceded it. 10   For

example, in his motion, appellant stated that he was challenging the

“STATE/Prosecution Expert [Witnesses’] failures to execute a plan for carrying

out Scientific Study and particular Scientific Studies, Use of Improper

Procedures, failure to Re-test and Reextract test results, and the ‘Untested’ and

      10
        We also note that many of the facts included within appellant’s briefs in
this court are unsupported by the concise record filed in this appeal.


                                       13
‘Unexamined’ DNA Blood samples of Evidence containing biological material

. . . .” In his appellate brief, appellant argues about the alleged ineffectiveness of

his trial counsel and states that the “evidence as a whole establishes . . . the guilt

of [someone] other than himself.” He also phrases his first issue as “Whether The

State’s Own Expert Witnesses Failed To Execute A Plan For Carrying Out

Scientific Study Of The Evidence Containing Biological Material In The

Appellant’s Case, Or Not?” To the extent that appellant attempts to collaterally

attack his murder conviction through contentions like these, we overrule all of

those arguments. See Qadir, 2010 WL 3377794, at *3; Reger v. State, 222

S.W.3d 510, 513 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 552 U.S.

1117 (2008).

      Finally, in his second issue, appellant argues that the legislature’s

amendment of article 64.01 in 2011, as described in footnote three above,

“disadvantaged” his third motion for DNA testing and violated his constitutional

right against ex post facto laws. 11 As explained above, the 2011 change to

article 64.01 relaxed the requirements for seeking DNA testing, benefiting

movants like appellant.     Whereas appellant’s possible “fault” in not seeking

testing before his trial once may have precluded later testing, fault no longer

factors into section 64.01’s qualifications for testing. See Act of May 20, 2011,

82nd Leg., R.S., ch. 366, § 1, 2011 Tex. Sess. Law Serv. 1015 (West); see also


      11
        See U.S. Const. art. I, § 10; Tex. Const. art. 1, § 16.


                                         14
Patt v. State, No. 10-11-00318-CR, 2012 WL 4040736, at *1 (Tex. App.—Waco

Sept. 13, 2012, no pet.) (mem. op., not designated for publication) (explaining

that because an appellant filed a motion for DNA testing before the effective date

of the 2011 amendment, he was required to show no fault in the lack of prior

DNA testing). Thus, because appellant could only benefit from the relaxation of

article 64.01’s requirements of motions requesting DNA testing, we hold that he

was not “disadvantaged” and that his ex post facto argument must be rejected.

See generally Carmell v. Texas, 529 U.S. 513, 522–23, 120 S. Ct. 1620, 1627–

28 (2000) (explaining that prohibited ex post facto laws harm defendants by

creating or increasing criminal responsibility for an act after the act has been

committed).

      For all of these reasons, we hold that the trial court did not err by denying

appellant’s third motion for DNA testing, and we overrule his two issues, along

with the subsidiary arguments contained within them.




                                       15
                                   Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s order

denying his third motion for DNA testing.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

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

DELIVERED: April 10, 2014




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