in Re Michael Anthony Moore ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00238-CR
IN RE MICHAEL ANTHONY MOORE
Original Proceeding
MEMORANDUM OPINION
Moore was convicted of Burglary of a building in 1988. He did not appeal.
In 2012, he filed an appeal of the trial court’s denial of his motion for DNA
testing. We affirmed the trial court’s order on January 10, 2013. See Moore v. State, 10-
12-00193-CR, 2013 Tex. App. LEXIS 226 (Tex. App.—Waco Jan. 10, 2013, pet. dism’d).
It appears that later in 2013 Moore filed an 11.07 writ apparently seeking relief
because certain biological evidence, according to Moore, had not been obtained or
properly tested. His application was disposed of by the Court of Criminal Appeals on
June 5, 2013.
Moore has now filed what he has labeled a Petition for Writ of Mandamus.
There are a number of procedural problems with the filing but we will use Rule 2 to
look beyond the procedural problems so that we may reach a disposition more
efficiently and promptly. See TEX. R. APP. P. 2; 52.3.
Under most circumstances such as this we would simply summarily deny
Moore’s petition without any explanation of why he is not entitled to relief. But in this
instance, and hopefully to foreclose more of Moore’s efforts using inappropriate
procedures which waste judicial resources, we will try to explain why he is not entitled
to relief on his claims.
Moore’s general argument seems to be that he believes he is entitled to relief
because, according to him, the State of Texas (including the City of Bryan’s police
department, the Brazos County District Attorney’s Office, and the Department of Public
Safety) failed to produce evidence for DNA testing sought under Chapter 64 to be
tested after his trial and conviction. He indicates that all the relevant agencies have
stated they do not have any biological materials to test. Based on their responses,
Moore seeks to use Arizona v. Youngblood, regarding the loss or destruction of evidence,
as a basis to overturn his conviction. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,
102 L. Ed. 2d 281 (1988).
Youngblood and the subsequent cases relying on it apply to evidence that was lost
or destroyed prior to trial. Nothing Moore has presented indicates that any evidence
In re Moore Page 2
that may have existed and in the State’s control was lost or destroyed before trial. He is
essentially arguing he is entitled to an acquittal because, over 20 years after his
conviction for burglary, there is no evidence to submit to DNA testing.
At the time of Moore’s trial, and subsequent thereto, there was no requirement
related to the preservation of the evidence he now seeks even if the evidence did exist at
that time. See Ch. 64, added by Acts 2001, 77th Leg., ch. 2, § 2, eff. April 5, 2001.
Further, Moore has not shown that any evidence that could be subjected to DNA testing
existed at the time of his trial or prior thereto. Nor has Moore shown that DNA testing
of any biological material would have been relevant to his trial, much less that identity
was an issue in the commission of the burglary for which he was convicted. Thus he is
manifestly not entitled to relief for the State’s alleged loss or destruction of biological
evidence from 20 years ago, if any.
Moore’s DNA claim lacks any legal merit.
Next it appears from the petition that he seeks relief under 11.07 of the Code of
Criminal Procedure. We have no jurisdiction to grant any relief under this statute. See
TEX. CODE CRIM. PROC. ANN. art. 11.05. Further, it appears that Moore has already filed
at least 16 previous petitions for a writ of habeas corpus under 11.07, and all have been
denied, dismissed, or had no action taken because an “abuse of writ” order has been
entered against Moore for making frivolous legal arguments and filing frivolous
In re Moore Page 3
proceedings. Yet again, Moore does not appear to have brought himself within the
circumstances that would entitle him to file a subsequent writ. Id., sec. 4.
Moore’s 11.07 writ claim, as presented, lacks any legal merit.
Next, Moore seeks $80,000 “reimbursement for wrongful incarceration under
Tex. Civ. Prac. And Rem. Cod Section 103.001…for every year of wrongful
incarceration.” Such relief is civil in nature and is not the proper subject for relief by a
criminal mandamus proceeding in which Moore is primarily seeking evidence to
allegedly show that he is entitled to relief by a subsequent writ of habeas corpus. There
is a procedure for a civil recovery for wrongful incarceration that might be available but
only if and when Moore has successfully established the wrongfulness of his
incarceration. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 103.001 et seq. (West 2011). He
has not yet established he was wrongfully incarcerated.
Moore’s Chapter 103 civil reimbursement claim lacks any legal merit.
In this proceeding, we have tried to address Moore’s arguments to the best that
we can understand them as set out in his petition for a writ of mandamus. We have
expended more of this Court’s time than the merits of his arguments deserve in an
effort to curtail future frivolous filings by Moore. We will not be so generous with our
time in the future.
In re Moore Page 4
Moore’s petition for writ of mandamus lacks any legal merit and is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed September 4, 2014
Do not publish
[OT06]
In re Moore Page 5