Court of Appeals of Texas, Second District, Fort Worth
PROCEEDING TRIAL COURT NO. 1023944D
WALKER, MEIER, and GABRIEL, JJ.
petition for writ of mandamus, pro se Relator Roger Eugene
Fain complains about a lengthy delay in his ability to obtain
the results of court-ordered DNA testing and asks us to
compel the trial court to compel the State "to be more
pro-active in obtaining the results of the DNA testing."
We will deny Fain's petition.
was convicted of capital murder on December 19, 2007, and
sentenced to life imprisonment. He appealed that conviction
to our court, and we affirmed his conviction. See Fain v.
State, No. 02-08-00002-CR, 2009 WL 2579580, at *1 (Tex.
App.-Fort Worth Aug. 20, 2009, pet. ref'd) (mem. op., not
designated for publication). In April 2010, Fain filed a
motion for post-conviction DNA testing. The trial court
denied that motion, and we affirmed the trial court's
denial. See Fain v. State, No. 02-10-00412-CR, 2012
WL 752652, at *1 (Tex. App.-Fort Worth Mar. 8, 2012, pet.
ref'd) (mem. op., not designated for publication).
filed a second motion for post-conviction DNA testing in
April 2013, asking that certain items be tested that he had
not requested in his first motion. See Fain v.
State, No. 02-13-00366-CR, 2014 WL 6840282, at *5 (Tex.
App.- Fort Worth Dec. 4, 2014, pet. ref'd) (mem. op., not
designated for publication). The trial court denied
Fain's motion, but on appeal, we reversed the trial
court's order in part and remanded back to the trial
court, holding that DNA testing should be performed on some
of Fain's requested items. Id. at *9.
14, 2015, the trial court, in compliance with our opinion,
ordered that DNA testing be performed on the items required
by our opinion. The evidence was delivered to the
Department of Public Safety (DPS) crime laboratory on June
26, 2015. On October 7, 2015, pursuant to a request from DPS,
the trial court ordered known DNA samples from Fain and the
murder victim to be transmitted the DPS crime laboratory.
Those samples were delivered on October 12, 2015.
September 19, 2016, the State filed a motion to permit
depletion of the samples, requesting that DPS "use or
deplete any samples necessary in order to obtain the best DNA
profile from the submitted evidence." On October 11,
2016, the trial court signed an order authorizing DPS to use
or deplete the samples in order to obtain the best DNA
profile. Despite the fact that it has been almost four years
since Fain filed his second motion for DNA testing, and
despite the fact that it has been over twenty months since
the trial court ordered DNA testing on the items required by
our opinion, the State's response to Fain's petition
for writ of mandamus states that "[t]he ordered DNA
testing remains pending with the DPS crime laboratory."
Is Fain Entitled to Mandamus Relief?
argues that he is entitled to mandamus relief to compel the
trial court to compel the State "to be more pro-active
in obtaining the results of the DNA testing."
relief is proper only to correct a clear abuse of discretion
when there is no adequate remedy by appeal. In re
State, 355 S.W.3d 611, 613 (Tex. 2011) (orig.
proceeding). A trial court abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law or if it fails to
correctly analyze or apply the law. In re Olshan
Found. Repair Co., 328 S.W.3d 883, 888 (Tex.
2010) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
"A party's right to mandamus relief generally
requires a predicate request for some action and a refusal of
that request." In re Perritt, 992 S.W.2d 444,
446 (Tex. 1999) (orig. proceeding).
Fain has not requested any action from the trial court
regarding the speed in which his DNA testing is to be
completed by the DPS crime laboratory. Indeed, we ...