COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00454-CR
MICHAEL DENNIS QUINN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant was convicted in 1995 of aggravated sexual assault of a child
under fourteen years of age and indecency with a child by contact. The jury
assessed punishment at fifty and twenty years’ imprisonment, respectively. On
original submission, this Court was reversed by the Texas Court of Criminal
Appeals on a point of error not relevant to this proceeding. On remand, this
1 See Tex. R. App. P. 47.4. Court affirmed the conviction. See Quinn v. State, 991 S.W.2d 52, 55 (Tex.
App.—Fort Worth 1998, pet. ref’d).
In March 2009, Appellant filed a pro se pleading styled ―Motion for
Forensic DNA Testing of Evidence.‖ He also filed affidavits and a memorandum
in support of his motion. In January 2010, an attorney was appointed by the trial
court to represent Appellant in the pursuit of the motion. On September 20,
2010, the State filed a reply to the motion, along with proposed findings of fact
and conclusions of law. On October 4, 2010, the trial court adopted the State’s
proposed findings and conclusions, finding, inter alia, that the Fort Worth Police
Department released all evidence to the Euless Police Department; that the
Euless Police Department is only in possession of reports on microfilm; and that
all other evidence, including that from the Fort Worth Police Department, was
destroyed prior to the effective date of article 38.39 of the code of criminal
procedure. Additionally, the only entry of any relevance to Appellant’s claim was
the following notation on the Fort Worth Police Department Crime Laboratory
report: ―Semen was not detected.‖ The trial court denied Appellant’s motion for
DNA testing. This appeal followed. We will affirm the trial court’s order.
ARGUMENTS OF PARTIES
Appellant contends that the State has failed to properly account for the
biological material that ―has been tested in the past.‖ He complains that no
document has been produced that demonstrates the time and place of actual
destruction of biological evidence related to the case, and he seeks a remand to
2 the trial court for an accounting of the ―purported‖ destruction of biological
evidence or testing of the biological material. Although Appellant argued a claim
in his pro se motion for DNA testing in the trial court that could be construed as a
deprivation of due process argument under the Fourteenth Amendment to the
United States Constitution, his appellate counsel only advanced Texas statutory
arguments in his brief to this Court, and consequently, we only consider those
arguments advanced by counsel in his brief.
The State counters, arguing in a nutshell that the trial court properly denied
Appellant’s request because the State explained in writing, as required by code
of criminal procedure article 64.02(a)(2)(B), that it was unable to deliver the
evidence because it had been destroyed by the Euless Police Department. See
Tex. Code Crim. Proc. Ann. art. 64.02(a)(2)(B) (West Supp. 2010).
STANDARD OF REVIEW
A trial court’s decision to deny a motion for post-conviction DNA testing is
reviewed under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55,
59 (Tex. Crim. App. 2002). An appellate court usually gives almost total
deference to the trial court’s findings of historical fact and application-of-law-to-
fact issues that turn on witness credibility and demeanor, but it considers de novo
all other application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d
883, 890 (Tex. Crim. App. 2011); see also Routier v. State, 273 S.W.3d 241, 246
(Tex. Crim. App. 2008).
3 APPLICABLE STATUTORY LAW
Texas Code of Criminal Procedure article 64.01 provides a convicted
person with a procedural vehicle to obtain forensic testing of DNA material that is
contained within existing evidence. See Tex. Code Crim. Proc. Ann. art. 64.01
(West Supp. 2010).
Article 64.01(b) specifies the parameters of a convicted person’s motion for
DNA testing, limiting it to ―evidence described by Subsection (a) that was
secured in relation to the offense that is the basis of the challenged conviction
and was in possession of the state during the trial of the offense.” Id. art.
64.01(b) (emphasis added). Not later than sixty days after service of the motion,
the State must either deliver the evidence to the trial court, or explain in writing to
the trial court why the State cannot deliver the evidence to the court. Id. art.
64.02(a)(2)(A)–(B) (West Supp. 2010). And a convicting court may order DNA
testing under chapter 64 only if the court finds that the evidence still exists and is
in a condition making DNA testing possible. Article 64.03(a)(1)(A)(i) (West Supp.
2010). The law also requires that the convicted person establish by a
preponderance of the evidence that the person would not have been convicted if
exculpatory results had been obtained through DNA testing. Id. art.
64.03(a)(2)(A).
APPLICATION OF LAW TO FACTS
In its findings of fact, the trial court found that ―[a]ll other evidence in the
possession of Euless Police Department, including the evidence released by the
4 Fort Worth Police Department Forensics Division, has been destroyed prior to
the effective date of Article 38.39 of the Texas Code of Criminal Procedure.‖
[Emphasis added.] Article 38.39 went into effect on April 5, 2001. See Tex. S.B.
3, ch. 2, § 1, 77th Leg., R.S. (2001). It has since been renumbered to Article
38.43 without textual change. See Act of June 17, 2005, 79th Leg., R.S., ch.
728, 2005 Tex. Gen. Laws 2314 (current version at Tex. Code Crim. Proc. Ann.
art. 38.43 (West Supp. 2010)).
Current law provides that material required to be preserved must be so
until (1) the defendant is executed, dies, or is released on parole in a capital
case, or (2) the defendant dies, completes his sentence, or is released on parole
or mandatory supervision if he is sentenced to a term of confinement or
imprisonment. Tex. Code Crim. Proc. Ann. art. 38.43(c)(1)–(2).
Additionally, current law provides that the attorney for the State, the clerk,
or other officer in possession of evidence may destroy the evidence, but only if
the attorney, clerk, or other officer notifies by mail the defendant, the last attorney
of record for the defendant, and the convicting court of the decision to destroy the
evidence and if a written objection is not received from the defendant, his
attorney, or the court within the time specified in the statute, but essentially
ninety-one days from receipt of notice to destroy. Id. art. 38.43(d)(1)(2).
Clearly, the purpose of article 38.39 and its progeny, article 38.43, is to
establish a mechanism to preserve evidence containing biological material that,
when coupled with the procedural mechanisms in chapter 64, would address the
5 correctness of convictions based on biological material. However, Appellant’s
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00454-CR
MICHAEL DENNIS QUINN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant was convicted in 1995 of aggravated sexual assault of a child
under fourteen years of age and indecency with a child by contact. The jury
assessed punishment at fifty and twenty years’ imprisonment, respectively. On
original submission, this Court was reversed by the Texas Court of Criminal
Appeals on a point of error not relevant to this proceeding. On remand, this
1 See Tex. R. App. P. 47.4. Court affirmed the conviction. See Quinn v. State, 991 S.W.2d 52, 55 (Tex.
App.—Fort Worth 1998, pet. ref’d).
In March 2009, Appellant filed a pro se pleading styled ―Motion for
Forensic DNA Testing of Evidence.‖ He also filed affidavits and a memorandum
in support of his motion. In January 2010, an attorney was appointed by the trial
court to represent Appellant in the pursuit of the motion. On September 20,
2010, the State filed a reply to the motion, along with proposed findings of fact
and conclusions of law. On October 4, 2010, the trial court adopted the State’s
proposed findings and conclusions, finding, inter alia, that the Fort Worth Police
Department released all evidence to the Euless Police Department; that the
Euless Police Department is only in possession of reports on microfilm; and that
all other evidence, including that from the Fort Worth Police Department, was
destroyed prior to the effective date of article 38.39 of the code of criminal
procedure. Additionally, the only entry of any relevance to Appellant’s claim was
the following notation on the Fort Worth Police Department Crime Laboratory
report: ―Semen was not detected.‖ The trial court denied Appellant’s motion for
DNA testing. This appeal followed. We will affirm the trial court’s order.
ARGUMENTS OF PARTIES
Appellant contends that the State has failed to properly account for the
biological material that ―has been tested in the past.‖ He complains that no
document has been produced that demonstrates the time and place of actual
destruction of biological evidence related to the case, and he seeks a remand to
2 the trial court for an accounting of the ―purported‖ destruction of biological
evidence or testing of the biological material. Although Appellant argued a claim
in his pro se motion for DNA testing in the trial court that could be construed as a
deprivation of due process argument under the Fourteenth Amendment to the
United States Constitution, his appellate counsel only advanced Texas statutory
arguments in his brief to this Court, and consequently, we only consider those
arguments advanced by counsel in his brief.
The State counters, arguing in a nutshell that the trial court properly denied
Appellant’s request because the State explained in writing, as required by code
of criminal procedure article 64.02(a)(2)(B), that it was unable to deliver the
evidence because it had been destroyed by the Euless Police Department. See
Tex. Code Crim. Proc. Ann. art. 64.02(a)(2)(B) (West Supp. 2010).
STANDARD OF REVIEW
A trial court’s decision to deny a motion for post-conviction DNA testing is
reviewed under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55,
59 (Tex. Crim. App. 2002). An appellate court usually gives almost total
deference to the trial court’s findings of historical fact and application-of-law-to-
fact issues that turn on witness credibility and demeanor, but it considers de novo
all other application-of-law-to-fact questions. Ex parte Gutierrez, 337 S.W.3d
883, 890 (Tex. Crim. App. 2011); see also Routier v. State, 273 S.W.3d 241, 246
(Tex. Crim. App. 2008).
3 APPLICABLE STATUTORY LAW
Texas Code of Criminal Procedure article 64.01 provides a convicted
person with a procedural vehicle to obtain forensic testing of DNA material that is
contained within existing evidence. See Tex. Code Crim. Proc. Ann. art. 64.01
(West Supp. 2010).
Article 64.01(b) specifies the parameters of a convicted person’s motion for
DNA testing, limiting it to ―evidence described by Subsection (a) that was
secured in relation to the offense that is the basis of the challenged conviction
and was in possession of the state during the trial of the offense.” Id. art.
64.01(b) (emphasis added). Not later than sixty days after service of the motion,
the State must either deliver the evidence to the trial court, or explain in writing to
the trial court why the State cannot deliver the evidence to the court. Id. art.
64.02(a)(2)(A)–(B) (West Supp. 2010). And a convicting court may order DNA
testing under chapter 64 only if the court finds that the evidence still exists and is
in a condition making DNA testing possible. Article 64.03(a)(1)(A)(i) (West Supp.
2010). The law also requires that the convicted person establish by a
preponderance of the evidence that the person would not have been convicted if
exculpatory results had been obtained through DNA testing. Id. art.
64.03(a)(2)(A).
APPLICATION OF LAW TO FACTS
In its findings of fact, the trial court found that ―[a]ll other evidence in the
possession of Euless Police Department, including the evidence released by the
4 Fort Worth Police Department Forensics Division, has been destroyed prior to
the effective date of Article 38.39 of the Texas Code of Criminal Procedure.‖
[Emphasis added.] Article 38.39 went into effect on April 5, 2001. See Tex. S.B.
3, ch. 2, § 1, 77th Leg., R.S. (2001). It has since been renumbered to Article
38.43 without textual change. See Act of June 17, 2005, 79th Leg., R.S., ch.
728, 2005 Tex. Gen. Laws 2314 (current version at Tex. Code Crim. Proc. Ann.
art. 38.43 (West Supp. 2010)).
Current law provides that material required to be preserved must be so
until (1) the defendant is executed, dies, or is released on parole in a capital
case, or (2) the defendant dies, completes his sentence, or is released on parole
or mandatory supervision if he is sentenced to a term of confinement or
imprisonment. Tex. Code Crim. Proc. Ann. art. 38.43(c)(1)–(2).
Additionally, current law provides that the attorney for the State, the clerk,
or other officer in possession of evidence may destroy the evidence, but only if
the attorney, clerk, or other officer notifies by mail the defendant, the last attorney
of record for the defendant, and the convicting court of the decision to destroy the
evidence and if a written objection is not received from the defendant, his
attorney, or the court within the time specified in the statute, but essentially
ninety-one days from receipt of notice to destroy. Id. art. 38.43(d)(1)(2).
Clearly, the purpose of article 38.39 and its progeny, article 38.43, is to
establish a mechanism to preserve evidence containing biological material that,
when coupled with the procedural mechanisms in chapter 64, would address the
5 correctness of convictions based on biological material. However, Appellant’s
trial and subsequent appeal on the merits occurred several years prior to April 5,
2001, the effective date of article 38.39. Therefore, since preservation of
biological material is not an issue, we must look to chapter 64 to determine if the
trial court and the prosecution acted according to accepted procedural
requirements.
The State filed a response to Appellant’s motion for DNA testing as
required by article 64.02(a)(2)(B), asserting why the State could not deliver the
evidence to the trial court—because the Euless Police Department had
destroyed it—and the trial court so found. The trial court then made a finding that
the evidence did not still exist and therefore was not in a condition making DNA
testing possible. See id. art. 64.03(a)(1)(A)(i). Appellant argues that the State’s
failure to present any documentation that ―demonstrates the time and place of
actual destruction of the biological evidence related to this case‖ constituted
error.
In Figueroa v. State, a fact pattern very similar to that in the case at bar
was presented to this court. See No. 02-03-00064-CR, 2003 WL 22674767 (Tex.
App.—Fort Worth Nov. 13, 2003, pet. ref’d) (mem. op, not designated for
publication). In Figueroa, the State presented a sworn affidavit from the Arlington
Police Department averring that the State had no DNA evidence to deliver to the
trial court because it had been destroyed. Id. at *1. This court held that when
6 the explanation offered by the State is that the evidence was destroyed, nothing
in article 64.02 requires the State to explain why the evidence was destroyed. Id.
In this case, because the State explained that the evidence that Appellant
seeks to have tested was destroyed, the State satisfied the requirements of
article 64.02(a)(2)(B). Having considered de novo the legal component of
Appellant’s sole point, we hold that neither preservation nor procedural issue is
sustainable. Thus, Appellant’s sole point is overruled.
The order of the trial court is affirmed.
PER CURIAM
PANEL: CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting By Assignment); WALKER and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 25, 2011