Fain, Roger Eugene
PD-0037-15
Tex. App.Jan 15, 2015Background
- Roger Eugene Fain was convicted (2007) of capital murder for the death of Linda Donahew and sentenced to life imprisonment.
- Post-conviction testing of oral swabs from the victim produced a male DNA profile that matched Fain when compared through CODIS; analyst testimony indicated the oral swab contained a mixture including Fain and at least one other male contributor.
- Fain’s first Chapter 64 motion for DNA testing was denied (trial court) and that denial was affirmed on appeal in 2012; he filed a second Chapter 64 motion in 2013 seeking testing of additional untested items (hairs, pubic hair, blood on faucet, fingernail clippings, bra/shirt male DNA, knife, etc.).
- The trial court denied the second motion, adopting findings that previously-tested DNA was highly probative and that newer testing was unlikely to exonerate Fain.
- The Second Court of Appeals reversed in part and remanded, ordering testing of several items (hairs in hands, pubic hair, bathroom faucet blood, fingernail clippings, male DNA on bra/shirt, knife) but affirmed denial as to blood on a Bic pen and in a closet.
- The State petitioned the Court of Criminal Appeals, arguing the courts should adopt standards for successive Chapter 64 motions and that the court of appeals failed to defer to the trial court’s factual and credibility findings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fain) | Held (Court of Appeals) |
|---|---|---|---|
| Whether standards are needed for subsequent Chapter 64 motions | The State: trial courts should have standards to limit repetitive DNA motions and require some showing before successive filings | Fain: Chapter 64 permits successive motions; second-motion testing permissible when untested material or newer techniques could be probative | COA did not establish new statewide standard but reviewed sufficiency and ordered testing of specified untested items |
| Proper deference to trial court factual/credibility findings | The State: appellate court must afford almost total deference to trial court on historical facts and credibility; COA failed to do so | Fain: appellate review may examine whether, under Chapter 64, exculpatory testing could have produced a different verdict | COA conducted sufficiency review (with deference limits) and concluded the record supported testing of several items |
| Whether Fain met Chapter 64 preponderance showing (reasonable probability of exculpatory results that would have altered the verdict) | The State: prior DNA inculpated Fain (oral swab semen match, alleged jailhouse confession); newer testing unlikely to exonerate; COA improperly discounted State’s evidence | Fain: untested items could identify another contributor and materially undermine identity/guilt; testing could exculpate him | COA held there is a reasonable probability that testing of certain untested items could have produced exculpatory results and reversed as to those items |
| Scope of items to be tested | The State: some items (e.g., Bic pen, closet blood) may be unrelated to cause of death and thus not warrant testing | Fain: broad testing of listed untested biological material is warranted | COA affirmed denial as to Bic pen and closet blood; reversed denial and ordered testing of hairs in hands, pubic hair, faucet blood, fingernail clippings, male DNA on bra/shirt, and the knife |
Key Cases Cited
- Ex parte Baker, 185 S.W.3d 894 (Tex. Crim. App. 2006) (Chapter 64 does not categorically bar successive DNA motions)
- Ex parte Gutierrez, 337 S.W.3d 883 (Tex. Crim. App. 2011) (appellate deference principles for factual and credibility findings)
- Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014) (appellate review of Chapter 64 matters and scope of courts of appeals’ authority)
- Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014) (requirements for Chapter 64 testing and the preponderance standard)
- Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005) (movant must show by preponderance that exculpatory DNA would have prevented conviction)
- Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002) (standards for deference to trial-court factual findings on post-conviction matters)
- Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) (rejects demand that prosecution disprove all alternate theories to deny relief)