Opinion
14-23-00122-CR
08-22-2023
IN RE GERALD J. DURDEN, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 248th District Court Harris County, Texas Trial Court Cause No. 905464
Panel consists of Bourliot, Hassan, and Poissant Justices.
MEMORANDUM OPINION
PER CURIAM
On February 23, 2023, relator Gerald J. Durden filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Hilary Unger, presiding judge of the 248th District Court of Harris County, to order the State to provide him copies of DNA test results and the data of the testing performed by the Harris County Institute of Forensic Science.
Background
A grand jury indicted relator for the aggravated sexual assault of a child-his nine-year-old daughter. The child told another adult about the assault the evening after the assault occurred. Durden v. State, No. 14-02-00818-CR, 2003 WL 22143293, *1 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (mem. op., not designated for publication). That person called the police and relator was arrested. Id. Relator was convicted of aggravated sexual assault of a child and sentenced to 58 years' incarceration, and this court affirmed relator's conviction. Id. The Texas Court of Criminal Appeals refused relator's petition for discretionary review.
On June 11, 2018, relator filed a motion for DNA testing. The trial court appointed counsel for relator; however, counsel was allowed to withdraw. On December 13, 2018, the trial court held a hearing. Harris County Assistant Attorney Gerald Doyle attended in person and relator attended by telephone. At the hearing, the trial court confirmed with relator that he wanted new counsel, after his previous counsel had withdrawn. Doyle advised the trial court and relator that he had contacted the Harris County Institute of Forensic Science ("HCIFS"), which had performed the DNA testing in 2002. According to Doyle, the lab was willing to retest with newer available testing techniques. Relator confirmed that was what he wanted. Doyle explained that if relator proceeded under Chapter 64, the testing would be done by the Texas Department of Safety's ("DPS") crime lab. However, if HCIFS performed the testing, it would take less time than DPS because HCIFS was already familiar with the analysis.
On December 19, 2018, the trial court appointed relator counsel, Abbie Russell, to represent him. On April 30, 2020, Russell filed a motion to withdraw as attorney of record because relator had contacted the Texas Bar on three occasions, with the last contact resulting in the filing of a grievance, against which Russell had to defend herself. The trial court granted Russell's motion on May 5, 2020.
Russell responded to relator's third complaint against her. In her response, Russell explained that, although Durden asserted to Russell that he had given his formal consent to have the evidence retest by HCIFS, part of the reason she was appointed to represent him was to help him understand Doyle's proposal. According to Russell, Doyle would not initiate the retesting until relator had consulted with relator's new counsel and counsel had advised Doyle of Durden's formal consent. It took 14 months for Russell to convince Durden that no retesting had been performed, at which time she received relator's formal consent.
Russell further explained that to be successful on a Chapter 64 motion, relator would have to show that the DNA testing was not done in his case, or that DNA testing was done on the evidence as the time of his trial, and that testing was not technologically capable of providing probative results. If relator were able to meet those requirements, he would be entitled to relief. Under either scenario, Chapter 64 requires that the evidence be sent to DPS for retesting.
Russell was concerned that relator would not be able to establish the threshold of eligibility for retesting. DNA testing had been done in relator's case prior to trial by two separate labs, with each lab providing a report containing probative results that were not favorable to relator. Russell learned that more advanced technology was available than had been at the time of relator's trial and HCIFS had the same technology as DPS, but HCIFS had a shorter turn-around time for retesting.
Russell further learned that, on December 13, 2018, five days before she was appointed to represent relator, the trial court had held a hearing. Russell learned from Doyle that while Chapter 64 required testing be done by DPS, Doyle was willing to agree to retesting without relator having to establish the threshold eligibility for retesting. However, in exchange for this agreement, the testing would be done by HCIFS. Doyle believed relator was generally agreeable to his proposal. The trial court and Doyle agreed that it would be prudent that relator have counsel to consult with before giving formal consent. Doyle would not initiate retesting until he received relator's formal consent through Russell. Doyle advised Russell that if HCIFS performed the retesting rather than DPS, relator's Chapter 64 motion would be moot once the lab report was received.
Relator appears to have had another attorney, Rick Oliver, subsequently appointed to represent him. On October 12, 2020, Oliver informed relator by letter that the analyst at the lab advised that the testing had been completed and the report would be finished and submitted for technical review. Oliver stated that he would forward the lab report to relator as soon as he had received it.
On May 13, 2021, relator receive a letter from Harry J. Bonnell, M.D., stating the supplemental forensic genetics report was "grossly inadequate." Dr. Bonnell explained that pages 2 and 3 did not contain the results of the analysis but a summary of the results, i.e., an interpretation.
On June 10, 2021, relator wrote the trial court that the supplemental forensic genetics report from HCIFS was "grossly inadequate" because it did not contain the results of the DNA testing and also included a copy of the letter from Dr. Bonnell. Relator stated that he was supposed to receive copies of the results and the data of the DNA testing and asked the trial court to compel the State to serve him with copies of those items pursuant to Article 64.03(d)(3) of the Texas Code of Criminal Procedure. Relator renewed his request to the trial court on August 10, 2021, January 4, 2022, March 21, 2022, and September 6, 2022. Relator also wrote the trial court coordinator on August 10, 2021, and March 21, 2022, regarding the status of his requests made to the trial court.
On February 23, 2023, relator filed his petition for writ of mandamus in this court. Relator asks this court to compel the trial court to order the State to provide relator with copies of the DNA test results and the data related to the testing. On this court's request, the State filed a response to relator's petition on April 17, 2023.
On April 20, 2023, relator filed a motion for leave to file new evidence in support of his petition, which we granted. The new evidence included an April 5, 2023 letter from Rick Oliver, who had previously represented relator. Oliver stated, after reviewing relator's letter to him dated February 23, 2023, he believed that relator's subsequent writs were discovery requests for un-redacted copies of the DNA reports that were used in his trial. Oliver stated that he also confirmed this with Dr. Bonnell. Oliver explained to the trial court what relator was requesting and asked to be reappointed to the matter so that he could contact the lab and obtain the unredacted reports. The trial court approved Oliver's request. Oliver then stated that he called the lab analyst and she found the un-redacted reports and sent them to Oliver. Oliver then called Dr. Bonnell to confirm that these were the lab reports relator was seeking. Oliver stated that he was enclosing copies of the two DNA reports received from the lab to relator.
Relator states that the unredacted lab reports are the results and data from the March 3, 2002 DNA test, not the result and data from the October 2020 subsequent retesting. To date, relator has not received the October 2020 DNA test results and data.
Analysis
To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). The relator can satisfy the requirement of a ministerial-act if he can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding).
Relator contends that the State was required to provide him copies of the DNA results and the testing data under article 64.03(d)(3). See Tex. Code Crim. Proc. art. 64.03(d)(3) (providing that "on completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results be immediately filed with the court and copies of the results and data be served on the convicted person and the attorney representing the state").
A convicting court may order forensic DNA testing only if the statutory preconditions of Chapter 64 are met. Weems v. State, 550 S.W.3d 776, 780 (Tex. App.-Houston [14th Dist.] 2018, no pet.). Here, the State agreed to have the evidence retested without relator's having met the requirements for the trial court to order testing under Chapter 64. Pursuant to article 64.03(d)(3), the convicting court must issue an order for forensic testing to either DPS or another laboratory under contract with DPS. Tex. Code Crim. Proc. art. 64.03(d)(3). Section 64.03(d)(3) mandates that, if the court orders that the testing be conducted by DPS or a laboratory under contract with DPS, the court shall direct that, "on completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results be immediately filed with the court and copies of the results and data be served on the convicted person and the attorney representing the state." Id.
At the December 13, 2018 hearing, Doyle explained that to relator that if he proceeded under Chapter 64, DPS would do the testing. Doyle recommended that HCIFS do the testing because it was already familiar with the previous analysis. The trial court stated that it would appoint an attorney, who would stay in touch with Doyle with respect to the subsequent testing. Relator expressed an interest in having HCIFS conduct the testing.
Doyle recommended to relator's attorney, Abbie Russell, that HCIFS perform the retesting rather than DPS under Chapter 64. Doyle explained that if HCIFS retested the evidence, relator's Chapter 64 motion would be moot. Russell explained to relator that the trial court had appointed her to assist relator in understanding the terms of Doyle's proposal for retesting. After consulting with Russell, relator agreed to have HCIFS retest the evidence rather than have the evidence retested by DPS.
Because the retesting of the evidence by HCIFS was by agreement between the State and relator, the trial court never issued an order for retesting pursuant to Chapter 64. In the absence of an order by the trial court for post-conviction DNA testing, relator has not shown that he has a clear right to the relief he has requested.
Conclusion
Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus.