Gowan, Michael

• Court: Court of Appeals of Texas
• Decided: April 22, 2015
• Docket: PD-0451-15
• Status: Published

Opinion

fSI-IS NO.

ORIGINAL IN THE COURT OF CRIMINAL APPEALS

AT AUSTIN '

MICHAEL GOWAN RECEIVED IN Petitioner/ COURT OF CRIMINAL APPEALS vs. APR 22 2015 THE STATE OF TEXAS Respondant. Abel Acosta, Clerk

Petition from Cause' Number 02-14-00347-CR from the Second Court of Appeals Appeal from Cause Number 30,832-C from the 89th District Court of Wichita County

PETITION FOR DISCRETIONARY REVIEW

FILED IN COURT OF CRIMINAL APPEALS APR 22 2015

Abel Acosta, Clerk

Michael Gowan Pro se TDCJ No. 701757 Robertson Unit 12071 FM 3522 Abilene, Texas 79601 TABLE OF CONTENTS

Index of Authorities iii

Parties iv

Statement Regarding Oral Argument iv

Address to the Court - I

Statement of the Case I

PROCEDURAL HISTORY 2

Issue Presented 2

Whether a convicted person may appeal an order granting DNA testing where the trial court fails to authenticate biological material in accord with Article 64.03 prerequisites, and where the State is concealing chain of custody records in violation of TEX. PEN. CODE 37.09?

Argument 2

Conclusion 7

Prayer 8

Certificate of service 8

Appendix 9

(a) April 6, 2015, letter to Debra Spisak (b) April 9, 2015, response from Debra Spisak (c) Copy of March 19, 2015, opinion (double-sided)

-li- INDEX OF AUTHORITIES

CASES

Cook v. State, 2014 Tex. App. LEXIS 2347 (Tex. App.—Tyler 2014) 6

Ex parte Padilla, 2010 WL 5019166 (Tex. App.—Austin 2010, pet. ref'd) 6

Wolfe v. State, 120 S.W.3d 368 (Tex. Crim. App. 2003) 5

Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010) 5

Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014) 5, 6, 7

STATUTORY PROVISIONS

TEX. CODE. CRIM. PRO. ART. 64.03 passim

TEX. PEN. CODE §37.09(a)(1) 2, 7

TEX. R. APP. PRO. 25.02(a)(2) 7

TEX. R. APP. PRO. 68 1

-Hi- PARTIES

Honorable Mark Price 89th District Court Judge 900 7th Street, Room 300 Wichita Falls, Texas 76301

Maureen Shelton District Attorney Wichita County Courthouse 900 7th Street Wichita Falls, Texas 76301

Michael Gowan TDCJ No. 701757 Robertson Unit 12071 FM 3522 Abilene, Texas 79601

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested. Chapter 64 has proven too ambiguous. This

case presents a serious flaw in Chapter 64, allowing the State an arbitrary

avenue to conceal chain of custody records. An oral argument concerning extra-

textual factors would clearly be helpful to the Court.

-iv- NO.

IN THE COURT OF CRIMINAL APPEALS

AT AUSTIN

MICHAEL GOWAN Petitioner,

vs .

THE .STATE OF TEXAS Respondant.

Petition from Cause Number 02-14-00347-CR from the Second Court of Appeals Appeal from Cause Number 30,832-C from the 89th District Court of Wichita County

* * * * *

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW Michael Gowan, pro se, and submits this petition

for discretionary review pursuant to TEX. R. APP. PRO. 68 in support of his

request for enforcement of Article 64.03, TEX. CODE CRIM PRO. In

support, he shows:

STATEMENT OF THE CASE

This is an appeal from and Article 64.03 order granting DNA testing

of biological material upon Gowan's motion. After initially contesting Gowan's

motion, the State advised the trial court it would not contest. The State

did not fulfill Article 64.02 duties. Gowan repeatedly objected and request

authentification of the biological material. The trial court granted testing

without authenticating the material to be tested. Gowan appealed.

-1-