             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00217-CR
     ___________________________

   ROGER EUGENE FAIN, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 372nd District Court
         Tarrant County, Texas
       Trial Court No. 1023944D


 Before Gabriel, Womack, and Wallach, JJ.
 Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      Appellant Roger Eugene Fain raises a single point challenging the no-

reasonable-probability-of-non-conviction finding made by the trial court following

post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal

Procedure. We will affirm.

                          II. PROCEDURAL BACKGROUND

      In 2007, a jury convicted Fain of the capital murder of Linda Donahew, and

the trial court sentenced him to life imprisonment.1 In part of our opinion affirming

his conviction, this court held that the evidence was sufficient to support the jury’s

verdict.2 See Fain v. State, No. 02–08–00002–CR, 2009 WL 2579580, *5 (Tex. App.—

Fort Worth Aug. 20, 2009, pet. ref’d) (mem. op., not designated for publication).

Following our opinion affirming the conviction, Fain filed his first motion for post-

conviction forensic DNA testing, and in September 2010, the trial court denied that


      1
       The State waived the death penalty before trial.
      2
        At the time of Fain’s direct appeal, this court was required to conduct both a
legal sufficiency and factual sufficiency review. Since that time, the Texas Court of
Criminal Appeals has held that there is no meaningful distinction between the legal
sufficiency standard and the factual sufficiency standard and that the Jackson standard
is the “only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895,
912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex.
Crim. App. 1996)).


                                          2
motion. See Fain v. State, No. 02–10–00412–CR, 2012 WL 752652, at *6 (Tex. App.—

Fort Worth Mar. 8, 2012, pet. ref’d) (mem. op., not designated for publication). In

2012, we upheld the denial of Fain’s first request for DNA testing because he did not

sustain his burden under the former law to show that he was blameless in the failure

to perform the DNA tests before trial. Id.

      In April 2013, Fain, acting pro se, filed his second motion for post-conviction

DNA testing of items that “ha[d] not previously been tested.” Fain v. State, 02-13-

00366-CR, 2014 WL 6840282, at *5 (Tex. App.—Fort Worth Dec. 4, 2014, pet. ref’d)

(mem. op., not designated for publication). Fain asked for testing of numerous items

and contended, “There is untested biological material in the State’s possession that

may well contain the identity of the person(s) that are responsible but has never been

subjected to DNA testing.” Id. He also argued, “If DNA other than [Fain’s] is

detected, [then it] could corroborate the theory of someone else[’]s involvement in

this case . . . .” Id. In June 2013, the trial court denied the second motion. Id. Fain

appealed. Id. This time, because the law had changed and Fain no longer bore the

burden to show that he was blameless in the failure to perform the DNA tests before

trial, we held that the trial court erred in part by denying Fain’s second motion. Id. at

*9. Particularly, we affirmed the trial court’s order as to blood found on a ball-point

pen and in a closet, but we reversed the order as to hairs in Donahew’s hands, pubic

hair, blood on a bathroom faucet, Donahew’s fingernail clippings, male DNA

discovered on the bra and shirt that Donahew had worn on the day of her death, and

                                             3
knife.    Id.   Accordingly, we remanded this case to the trial court for further

proceedings. Id.

         In accordance with that opinion, on June 14, 2015, the trial court ordered the

Texas Department of Public Safety (DPS) to conduct forensic DNA testing on the

items we addressed—except the knife, which was no longer in law-enforcement

possession. DPS issued three reports related to the testing.

         First, on February 9, 2017, DPS issued a report finding that presumptive testing

on Donahew’s left and right fingernail clippings tested positive for the presence of

blood, that presumptive testing on the stain from the crime scene tested negative for

the presence of blood, and that swabs from Donahew’s shirt and bra were collected

for potential presence of DNA. Moreover, the fingernail cuttings, the faucet stain,

and the shirt and bra swabs were then sent for further DNA analysis. The “pubic

combing slides” were also sent for further DNA analysis.

         Second, on March 30, 2018, the laboratory issued a report finding that a box

marked “pubic combing slides” contained a single hair that was not suitable for

nuclear DNA analysis because it had no root; that one hair from Donahew’s pubic

combing, three hairs from her right hand, and three hairs from her left hand had roots

and were suitable for nuclear DNA analysis; and that one hair from Donahew’s right

hand and the remaining hairs from her left hand were not suitable for nuclear DNA

analysis because they had no roots. The suitable hairs were forwarded for further

DNA analysis.

                                             4
      Third, on June 13, 2018, the laboratory issued a report finding that the partial

DNA profile obtained from the left and right fingernail cuttings were consistent with

Donahew’s DNA profile; that there was insufficient data from the faucet stain for

comparison purposes; that there was insufficient data from one pubic hair combing

for comparison purposes; that no DNA profile was obtained from the hairs in

Donahew’s left and right hands; and that no DNA profile was obtained from the

swabbing of Donahew’s shirt and bra.

      After the State filed a motion seeking a finding on the reasonable probability of

non-conviction, and after Fain filed a response to that motion, the trial court

conducted a live hearing on May 23, 2019. At the hearing, in addition to testifying to

the results from the three reports summarized above, DNA analyst Clare Moyers

testified that DPS had reinterpreted a 2005 report concerning DNA material from the

oral swabs taken from Donahew’s mouth for the DPS’s CODIS laboratory in 2015.

Moyers said that from the report on the testing, she identified nine of fifteen genetic

markers or short tandem repeats (STR’s) consistent with Fain’s DNA profile,

testifying that six of the STR’s were inconclusive. However, original interpretation of

the testing in 2005 of the oral swabs identified fifteen of fifteen STR’s consistent with

Fain’s DNA profile. Moyers averred that the discrepancy between the two tests could

be because the testing method used in 2005 was different than the testing method

used in 2015. The record is not clear why DPS reinterpreted the results from the oral

swabs. Indeed, neither Fain’s request for testing nor the trial court’s order permitting

                                           5
the testing mentions reinterpreting the results from the oral swabs. And our opinion

ordering the testing of untested evidence also did not order the reinterpretation of the

2005 results.

      After the hearing, the trial court concluded that the testing results obtained by

DPS did not create a reasonable probability that Fain would not have been convicted

had they been available at the time of his trial. This appeal followed.

                             III. FACTUAL BACKGROUND

      Because the State argues that the results of the new testing and reinterpretation

of the oral swabs do not cast affirmative doubt on the validity of Fain’s conviction in

light of other evidence introduced at Fain’s murder trial, we recite many of the facts

from that trial. The indictment alleged that Fain killed Donahew by strangling her

with his hand or hands, or with an object unknown to the grand jury, or by stabbing

her with a knife, or by a combination of the strangulation and stabbing, while

committing or attempting to commit aggravated sexual assault. Our direct appeal

opinion set out the following facts:3

      Bonnie Bishop shared a house with her sister, Donahew. On June 1,
      1987, Bishop left work and arrived home at approximately 8:00 p.m.
      She entered the house to find her sister’s nude and blood-covered body
      lying on the floor in a bedroom closet.

      3
        This opinion cites only those facts pertinent to this appeal. These are the same
facts set out in this court’s opinion affirming the denial of Fain’s first motion for post-
conviction, forensic DNA testing. See Fain, 2012 WL 752652, at *1–3. A more
complete recitation of the facts can be read in this court’s opinion regarding Fain’s
direct appeal. Fain, 2009 WL 2579580, at *1–4.


                                            6
       The autopsy revealed that Donahew had died from manual
strangulation and that a secondary cause of death was a stab wound to
her neck. The postmortem examination also revealed several hairs
found clinched in her hands, DNA artifacts in her mouth, and three
foreign pubic hairs in the genital area.

      Approximately fourteen years later, in August 2001, a DNA
sample was taken from [Fain], who was incarcerated for an unrelated
crime. The sample was entered into the Combined DNA Index System
(CODIS) of [DPS]. Four years later, in October 2005, the cold case of
Donahew’s murder was reopened, and the DNA samples acquired
during the examination of her body were uploaded into CODIS and
were found to match the DNA profile of [Fain].

      ....

       Dr. Nizam Peerwani, the medical examiner who performed the
autopsy and forensic examination of Donahew’s body, testified that he
took oral swabs from her mouth and that they contained DNA material.
He testified that he was unable to determine exactly when the DNA had
been deposited in her mouth. Kelly Solis testified that she was a DNA
analyst for the DPS CODIS lab in Austin, Texas. She testified that the
DNA samples from the oral swabs taken by Dr. Peerwani matched
[Fain’s] DNA profile.

        Constance Patton testified that she was a senior forensic biologist
and DNA technical leader for the medical examiner’s office crime
laboratory in Fort Worth. She testified that she had examined the
samples from the oral swabs taken by Dr. Peerwani and that the results
of her examination showed that the samples contained DNA material
consistent with the DNA of Donahew and a mixture containing one
DNA sample consistent with that of [Fain] and a sample of male DNA
foreign to both Donahew and [Fain]. Patton testified that it could not
be determined whether [Fain’s] DNA had been contributed before or
after the other male DNA or how long it had been present. She also
testified that she had tested a portion of a towel taken from Donahew’s
house. The towel tested presumptively for blood and also for a mixture
of DNA from Donahew. She testified that a sample of male DNA from
Ronald Nix, a boyfriend of Donahew, could not be excluded from
matching the sample on the towel. Patton also found a sperm stain on

                                    7
the comforter from Donahew’s bed, the DNA profile of which also
matched Nix’s sample.

      Dr. Peerwani had found several hairs clutched in Donahew’s hand
during the postmortem examination. One of the hairs was identified as
dog hair. Other hairs were consistent with either the hair of Donahew
or that of her sister, Bishop. One hair, however, was not matched to
Donahew, Bishop, or [Fain].

      Susan Kenney testified that in 1987 she had been working as a
serologist in the Fort Worth Police Department Crime Lab. She
examined the evidence taken by Dr. Peerwani as part of the examination
of Donahew’s body. She testified that part of the protocol of the
examination was to comb the pubic hair area of Donahew. In this case,
the combing resulted in finding three hairs that were not similar to those
of Donahew.

      Detective Jim Ford testified that he had requested DNA testing of
the unknown pubic hair found on Donahew’s body. The test showed
that Nix could not be eliminated as a contributor of the hair.

      ....

      Ernest Fain, [Fain’s] brother, testified that in 1987, [Fain] drove a
mid–1970s white Ford pickup truck and that the truck had a black tool
box and PVC piping attached to its bed . . . .

       Sheila Nelson testified that she lived next door to Donahew in
1987. On the day of Donahew’s murder, Nelson and her husband left
the house at approximately 5:15 p.m. to take a walk. They noticed a
white Ford pickup truck parked on the street “not in front of my house
and not in front of Linda’s but kind of between the two.” She testified
that it was an older model truck with a tool box. The truck was still
there when she returned from her walk about fifteen to twenty minutes
later. She and her husband went out to eat, and when they returned at
about 8:30 p.m., the pickup was gone. Nelson testified that Donahew
had had a lot of friends and quite a bit of company.

      ....



                                    8
             Michael Higham testified that in the late spring and summer of
      1987, he was the detail shop manager of Pleasant Ridge Car Wash in
      Arlington. In the late spring or early summer of 1987, Donahew took
      her car in for detailing. When he had finished with the car, he went to
      the horse stables to pick her up and take her back to her car. She was
      with a man whom [Higham] identified as [Fain]. Higham drove both the
      man and Donahew back to pick up her car.

             ....

             Danny Smith, a sixty-three-year-old inmate who at the time of
      trial was serving forty-five years’ confinement for involuntary
      manslaughter, enhanced to a habitual offense, testified that he knew
      [Fain] from having been in prison with him. In 2005, while they were
      housed in the same cell block of the Eastham Unit, [Fain] told him that
      Arlington detectives had visited him and had taken mouth swabs for
      DNA purposes. After the visit, [Fain] started “acting in an excited type
      of manner.” [Fain] told Smith that he had been having sex with
      Donahew and had unintentionally strangled her during sex. Smith
      claimed that [Fain] told him that the strangulation was part of the sex
      act.

             ....

             Ronald Nix testified that he had dated Donahew from February
      1987 until her death. In May 1987, he and Donahew had taken a
      vacation together to Mexico. . . . He also testified that he had seen
      Donahew on the Friday preceding her death. He testified that shortly
      before her death, he had been at a club with Donahew and had seen her
      talking with a man whom Nix identified as [Fain]. Nix testified that
      Donahew had given [Fain] her phone number. . . .

Fain, 2009 WL 2579580, at *1–4.

                                  IV. DISCUSSION

      In one point, Fain argues that the trial court erred by finding that the results of

the newest testing “do not create a reasonable probability that the defendant would

not have been convicted had they been available during his trial.” We disagree.

                                           9
A.     Standard of Review

       When reviewing a trial court’s finding in a Chapter 64 post-conviction-DNA-

test proceeding as to whether, had the results been available during the trial of the

offense, it is reasonably probable that the person would not have been convicted, we

apply the same standard of review that applies to our review of a trial court’s ruling

granting or denying DNA testing under Article 64.03. See Tex. Code Crim. Proc.

Ann. arts. 64.03, 64.04; Asberry v. State, 507 S.W.3d 227, 228–29 (Tex. Crim. App.

2016) (explaining that “we do not see any reason to treat a review of a ruling pursuant

to Article 64.04 differently than a ruling pursuant to Article 64.03”). That is, we use

the familiar bifurcated standard of review articulated in Guzman v. State—we give

almost total deference to the judge’s resolution of historical fact issues supported by

the record and applications-of-law-to-fact issues turning on witness credibility and

demeanor, and we review de novo all other application-of-law-to-fact questions.

955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim.

App. 2002).

       We review the entire record, that is, all of the evidence that was available to,

and considered by, the trial court in making its ruling, including testimony from the

original trial.   Asberry, 507 S.W.3d at 228.   The ultimate question of whether a

reasonable probability exists that exculpatory DNA tests would have caused the

appellant to not be convicted “is an application-of-the-law-to-fact question that does



                                          10
not turn on credibility and demeanor and is therefore reviewed de novo.” See Rivera,

89 S.W.3d at 59.

B.    The Law Concerning Findings on Post-Conviction DNA Testing

      The purpose of post-conviction DNA testing is to provide a means through

which a defendant may establish his innocence by excluding himself as the perpetrator

of the offense of which he was convicted. See Blacklock v. State, 235 S.W.3d 231, 232–

33 (Tex. Crim. App. 2007). Chapter 64 of the Code of Criminal Procedure provides

that a convicted person may submit a motion to the convicting court to obtain post-

conviction DNA testing. Tex. Code Crim. Proc. Ann. art. 64.01; Ex parte Gutierrez,

337 S.W.3d 883, 889 (Tex. Crim. App. 2011). If such DNA testing is conducted, the

convicting court shall hold a hearing and make a finding as to whether, had the results

been available during the trial of the offense, it is reasonably probable that the person

would not have been convicted. Tex. Code Crim. Proc. Ann. art. 64.04; see also

Solomon v. State, No. 02-13-00593-CR, 2015 WL 601877, at *4 (Tex. App.—Fort

Worth Feb. 12, 2015, no pet.) (mem. op., not designated for publication). The

defendant may appeal a trial court’s finding that even if DNA testing results had been

available during the trial of the offense, it is not reasonably probable that the person

would not have been convicted. See Tex. Code Crim. Proc. Ann. art. 64.05; Whitfield v.

State, 430 S.W.3d 405, 409 (Tex. Crim. App. 2014).

      To be entitled to a finding that, had the results been available during the trial of

the offense, it is reasonably probable that the person would not have been convicted,

                                           11
“[t]he defendant must prove that, had the results of the DNA test been available at

trial, there is a 51% chance that the defendant would not have been convicted.”

Glover v. State, 445 S.W.3d 858, 861 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d);

Medford v. State, No. 02-15-00055-CR, 2015 WL 7008030, at *3 (Tex. App.—Fort

Worth Nov. 12, 2015, pet. ref’d) (mem. op., not designated for publication). A

defendant is not required to establish actual innocence to be entitled to a favorable

finding. See Glover, 445 S.W.3d at 862.

C.     The Trial Court’s Not-Reasonably-Probable Finding

       In this case, Fain argues that the lack of DNA evidence found on much of the

newly tested evidence, the circumstantial nature of the evidence against him in his

murder trial, and the reinterpretation of the oral swabs demonstrates that the trial

court erred by finding that the newly obtained test results by DPS did not create a

reasonable probability that he would not have been convicted had they been available

at the time of his trial. We disagree.

       Fain first argues that many of the newly tested items of evidence “failed to

identify [him] as a possible contributor” because no DNA evidence was found at all,

only Donahew’s DNA was found, or the data was insufficient on the items tested.

Specifically, Fain argues “that the results of the DNA testing did not conclusively

show that he was the perpetrator of the crime and the fact that his DNA was not

found on any of the samples analyzed could indicate that another person may have

committed the crime.” But as the State points out, the “absence of [Fain’s] DNA

                                          12
profile [on the newly-tested evidence] does not establish a reasonable probability of

non-conviction even if its presence would have indicated guilt.” See Flores v. State,

491 S.W.3d 6, 10 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“Even if we

were to infer from the results that another person was present at the time of the

shooting, this inference alone ‘would not factually exclude the appell[ant] from having

killed [Hyatt]’ and would not demonstrate a reasonable probability of acquittal.”); see

also Jones v. State, 01-03-00325-CR, 2004 WL 440430, at *2 (Tex. App.—Houston [1st

Dist.] Mar. 11, 2004, pet. ref’d) (mem. op., not designated for publication) (“Thus,

even if appellant’s DNA were not found on the package of cigarettes or the cigarette

lighter, or if someone else’s DNA were found on either item, the DNA evidence

would not provide a reasonable probability that appellant did not commit the

robberies. The DNA evidence would ‘merely muddy the waters.’”) (quoting Kutzner v.

State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002)). The lack of DNA entirely or the

lack of DNA from anyone other than Donahew on the newly tested items does not

demonstrate a reasonable probability that Fain would not have been convicted had

they been available at the time of his trial. See Flores, 491 S.W.3d at 10. These results

do not exclude Fain as the perpetrator of the capital murder.

      Fain next argues that, other than his identified DNA from Donahew’s mouth,

the remaining evidence of his guilt at his murder trial was “circumstantial” and

therefore not indictive of his guilt. Specifically, Fain claims that the evidence that he

had been seen with Donahew prior to her murder, that a truck matching his own

                                           13
truck’s description was seen outside her house on the day of her murder, and that his

confession to Smith in prison that he had murdered Donahew accidently during a sex

act is no evidence of his guilt. Fain cites no authority to support his contention that

circumstantial evidence is somehow not indicative of guilt or to support his

contention that lack of knowing the “circumstances of his conversation” with Smith

are somehow exculpating. We conclude that there are at least two reasons to reject

Fain’s arguments. First, it is well known that “circumstantial evidence is as probative

as direct evidence in establishing guilt.” See Jenkins v. State, 493 S.W.3d 583, 599 (Tex.

Crim. App. 2016). Thus, the circumstantial nature of the evidence against Fain does

not demonstrate a reasonable probability that he would not have been convicted had

the State’s case been purely circumstantial. Second, Fain should have addressed any

complaints that he had about any circumstantial evidence, including his confession,

through his direct appeal—an appeal wherein this court held that the evidence was

sufficient to support his conviction. See Reger v. State, 222 S.W.3d 510, 513 (Tex.

App.—Fort Worth 2007, pet. ref’d) (“[T]he jurisdiction afforded us under [C]hapter

64 does not extend to collateral attacks on the judgment of conviction or allow us to

revisit matters that should have been addressed on direct appeal.”); see also Fain,

2009 WL 2579580, *5 (holding that evidence supported jury’s verdict that Fain

murdered Donahew). We reject Fain’s argument that the circumstantial nature of the

evidence supporting his conviction is somehow not probative of his guilt.



                                           14
      Finally, Fain argues that the reduction in identifying STR markers between the

initial 2005 interpretation of his genetic markers found on the oral swabs as being

fifteen of fifteen versus the 2015 interpretation of his genetic markers as being only

nine of fifteen “actually weakens” the State’s argument that this evidence is indicative

of his guilt. We disagree. First, Fain cites no authority to support this contention.

Second, the 2015 results were merely inconclusive at six genetic loci, which did not

mean that Fain’s alleles were absent at these locations—it means only that their peaks

did not meet the threshold for being included in calculating the combined possibilities

of exclusion statistics. And third, as the State points out, the later interpretation

would have only changed the exclusionary rate of Fain from all other Caucasian,

Hispanic, or African-American males as the DNA’s contributor from 99.999% to

99.919%. This change is not significant evidence enough to conclude that Fain would

not have been convicted had the later interpretation of these results been available at

trial. See Booker v. State, 155 S.W.3d 259, 266–67 (Tex. App.—Dallas 2004, no pet.)

(“[T]he fact that only six of the fourteen loci yielded a result of not excluding

appellant does not demonstrate a reasonable probability of innocence.”). We overrule

Fain’s sole point on appeal.

                   V. FAIN’S MOTION TO SUBSTITUTE COUNSEL

      In addition to his appeal, Fain has filed a motion in this court titled,

“APPELLANT’S REQUEST TO ABATE HIS APPEAL AND REQUEST

APPOINTMENT OF SUBSTITUTE COUSNEL.” We deny this motion.

                                          15
                                  VI. CONCLUSION

      Having overruled Fain’s sole point on appeal and having denied his request to

abate to the trial court for the appointment of substitute counsel, we affirm the trial

court’s judgment.


                                                     /s/ Dana Womack

                                                     Dana Womack
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 19, 2019




                                          16
