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Texas Grants Prisoners Right to Forensic DNA Testing

by Matthew T. Clarke

The Texas state legislature has enacted what may be the most pro-prisoner post-conviction DNA testing entitlement law in the country. Codified at Chapter 64 of the Texas Code of Criminal Procedure, the law gives any convicted person the right to submit a motion for DNA testing of evidence containing biological material secured in relation to the challenged conviction that was in the possession of the state during the trial of the offense but: (1) not previously subjected to DNA testing because such testing was unavailable or not technically capable of providing probative results; (2) if previously tested, newer techniques provide a reasonable likelihood of more accurate and probative results; or (3) reasons exist showing that the interest of justice require such testing. A convicted person is entitled to appointment of counsel to prepare the motion for forensic DNA testing and for representation at any hearing on the motion. To gain appointed counsel, the prisoner need only notify the original trial court of his desire to file a motion and his indigence while requesting counsel.

Upon receipt of the motion, the state is required to deliver the forensic evidence to the court or explain why it cannot be delivered. To prevail on the motion, the court must find that (1) the evidence still exists and is in a condition that makes DNA testing possible; (2) a chain of custody exists sufficient to show that the evidence has not been tampered with; (3) identity was an issue in the case; (4) the plea was not guilty or nolo contended in the case; (5) the convicted person has established by a preponderance of the evidence that there would have been no prosecution or conviction if exculpatory results had been obtained through DNA testing; and (6) the request for testing is not made to unreasonably delay execution of sentence or the administration of justice. If all the above conditions are met, the court must grant the motion and allow DNA testing.

The state pays for DNA testing performed by the Department of Public Safety laboratory. If conducted by another laboratory, the convicted person must pay for the testing.

The court must make a finding of whether the result of the testing is favorable to the convicted person. If it is favorable, the convicted person has the right to file a state petition for a writ of habeas corpus even if one or more petitions on the same conviction was previously filed. The convicted person may appeal a finding that the results are not favorable directly to the Court of Criminal Appeals.

The convicted person may also appeal the denial of a motion for forensic DNA testing to the court of appeals. In such a proceeding, the convicted person is entitled to appointment of counsel. Gray v. State, 59 S.W.3d 835 (Tex.App.-Waco 2002). The district courts have jurisdiction to rule on motions for forensic DNA testing and, if the district court refuses to rule on the motion, the convicted person may file a petition for a writ of mandamus in the court of appeals to compel a ruling on the motion. In Re Rogers, 53 S.W.3d 778 (Tex.App. Dist. 2, 2001).

Courts Restrict DNA Law

Recent Texas court decisions have restricted and reduced Texas prisoners' DNA testing right to such an extent critics complain they have eviscerated the law. For instance, in Kutzner v. State, 75 S.W.3d 427 (Tex.Crim.App. 2002), the Court of Criminal Appeals held that "overwhelming" evidence of guilt would defeat a DNA testing request, even if identity was at issue in the trial. Furthermore, the movant must prove a favorable DNA test result would prove actual innocence (not merely show that, he would not have been prosecuted or convicted, as the statute states). Finally, death-sentenced prisoners cannot wait until shortly before a scheduled execution date to file a DNA testing motion.

"The Court of Criminal Appeals continues to thwart the intent of the Legislature and the spirit of the law," said attorney Keith Hampton reacting to the decision that his client, Jesse Patrick, would not be allowed DNA testing that his family had paid for and the district court approved because his inadmissible confession and other evidence prevented him from establishing a reasonable probability that he would not have been prosecuted and convicted. The district court has no authority independent of the statute to order DNA testing and the statute's requirements apply even for DNA testing paid for be the movant. State v. Patrick, 86 S.W.3d 592 (Tex.Crim.App. 2002).

Likewise, in Dinkins v. State, 84 S.W.3d 639 (Tex.Crim.App. 2002), the Court of Criminal Appeals established a hypertechnical pleading requirement for DNA motions. The movant must introduce evidence (e.g. an expert's report) specifically linking the piece of evidence to be tested with current techniques allowing more probative results than was possible at the original trial. Discrepancies between the motion and report (e.g. the expert found more evidence that could be tested) must be specifically explained or the motion may be denied. g

Additional Source: Associated Press

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