Benjamin Alan Morrison v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 10, 2021
• Docket: 10-19-00287-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00287-CR

BENJAMIN ALAN MORRISON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2010-997-C1

CONCURRING OPINION

This is yet another example of a Chapter 64 motion being disposed of on the

procedure, rather than the merits, thus foreclosing the use of “law of the case” doctrine

from being a defense to future Chapter 64 motions until the

defendant/movant/appellant gets the motion right. See State v. Swearingen, 478 S.W.3d

716, 723 (Tex. Crim. App. 2015); State v. Swearingen, 424 S.W.3d 32, 37-38 (Tex. Crim. App.

2014). See also Webb v. State, 10-18-00170-CR, 2021 LEXIS 8527 (Tex. App.—Waco October

20, 2021, no pet. h.) (mem. op.) (Gray, C.J., concurring). There is no suggestion in this record that the trial court performed the duty to comply with Section 64.02 of the Texas

Code of Criminal Procedure other than an inference that could be drawn from the fact

that the State did file a response to the motion for Chapter 64 DNA testing. But the

strength of that inference, if any, is diminished because the State did not do what section

64.02 required the State to do when notified of the filing of a motion for DNA testing.

When the motion is filed, the statute requires the trial court to provide a copy of

the motion to the attorney representing the State, hereinafter the DA. TEX. CODE CRIM.

PROC. § 64.02 (a)(1). The DA is required by the statute to:

…take one of the following actions in response to the motion not later than the 60th day after the date the motion is served on the attorney representing the state:

(A) deliver the evidence to the court, along with a description of the condition of the evidence; or

(B) explain in writing to the court why the state cannot deliver the evidence to the court.

Id. (a)(2).

The response received was not the response required of the DA.

Rather, the response filed by the DA mostly addressed the procedural aspects of

the motion. Essentially, it asserts that the motion is inadequate to get Morrison over the

first hurdle. If Morrison gets over that first hurdle, the trial court could then address the

actual merits of the Chapter 64 motion for DNA testing. After that, future Chapter 64

motions could be subject to the law of the case doctrine. However, until a decision is

made on the merits, Morrison can continue to file Chapter 64 motions until he gets it

procedurally correct. See In re Birdwell, 393 S.W.3d 886, 893 n. 2 (Tex. App.—Waco 2012,

Morrison v. State Page 2 orig. proceeding) (“We do not hold that Birdwell is, or was ever, entitled to file a second

or successive motion once his motion had been resolved on the merits and appealed

under the statue in effect at that time.”). And until the DA files the response required by

the statute, that is a journey that we cannot even start.

I respectfully concur only in the judgment of the Court.

TOM GRAY Chief Justice

Concurring opinion delivered and filed November 10, 2021

Morrison v. State Page 3