Opinion
NO. 02-17-00430-CV
01-22-2018
IN RE ROGER EUGENE FAIN RELATOR
ORIGINAL PROCEEDING
TRIAL COURT NO. 1023944D MEMORANDUM OPINION
See Tex. R. App. P. 47.4, 52.8(d).
Pro se relator Roger Eugene Fain filed a mandamus petition. He principally complained that the trial court had not ruled on his two motions to compel real party in interest, the State of Texas, to be more proactive in obtaining and presenting the results of court-ordered DNA testing. By our requests, the State and respondent, the Honorable Charles P. Reynolds, Tarrant County Criminal Magistrate, each filed a response to relator's petition.
In 2015, the trial court ordered DNA tests of several items related to Fain's 2007 capital murder 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) (affirming the conviction). In our order requesting a response from respondent in this case, we detailed Fain's years-long attempt to secure and obtain the results of those tests. See In re Fain, 514 S.W.3d 917, 919 (Tex. App.—Fort Worth 2017, orig. proceeding) (expressing our "concerns regarding the lengthy delay in obtaining the results of the DNA tests" but denying mandamus relief because there was "no clear abuse of discretion by the trial court for us to correct"); Fain v. State, No. 02-13-00366-CR, 2014 WL 6840282, at *1 (Tex. App.—Fort Worth Dec. 4, 2014, pet. ref'd) (mem. op., not designated for publication) (reversing the trial court's denial of Fain's second motion for DNA testing).
In respondent's response, he acknowledged the trial court's 2015 order for DNA testing and expressed that he "shares the concerns of both [this court] as well as [relator] regarding the speed at which this proceeding is progressing." Respondent also found that the State "appears to have been proactive in ensuring that testing is completed in this matter, but . . . delays have been caused by evolving technology and laboratory scheduling requirements." Respondent informed this court that after becoming aware of relator's motions to compel, he signed an order granting relief to relator. Respondent's response includes a January 4, 2018 order in which the trial court ordered the State to (1) remain proactive in ensuring that DNA testing is completed, and (2) file a status report with the trial court every thirty days until "written results of all testing have been provided to [the trial court] and [relator]."
To the extent that relator predicated his mandamus petition on a plea for a ruling on his motions to compel, the trial court has ruled on the motions, and we therefore dismiss the petition as moot. See In re Cooper, No. 02-16-00430-CV, 2016 WL 7339118, at *1 (Tex. App.—Fort Worth Dec. 19, 2016, orig. proceeding) (mem. op.). To the extent that relator asks this court to order any other relief, we deny his mandamus petition. See Tex. R. App. P. 52.8(a), (d).
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE PANEL: WALKER, MEIER, and BIRDWELL, JJ. DELIVERED: January 22, 2018