Atkinson, Thomas v. State ( 2015 )

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f\pfxL> Cftuf»t NO. (?3-|3-002^W-Og
RECEIVED IN
MAY 14 2015
MS.
Abel Acosta, Clerk
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(1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio,
488 U.S. 75, 80-82 (1988). Appellant's counsel has represented to the Court that he provided
copies of the motion and briefto appellant; advised appellant of his right to examine the appellate
record, file a pro se brief, and pursue discretionary review following dismissal of this appeal as
frivolous; and provided appellant with the mailing address of this Court and the trial court so that
he could inform the courts if he desired to review the record and submit a brief. See Kelly v. State,
436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744; Garner, 300
S.W.3d at 766. Appellant requested and received the appellate record and filed three briefs.
We have independently reviewed the record and have found nothing that might
arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the appeal
is frivolous and without merit. We grant counsel's motion to withdraw and affirm the judgment
of conviction.1
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: January 22, 2015
Do Not Publish
1 No substitute counsel will be appointed. Should appellant wish to seek further review of
his case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition
for discretionaryreview or file a pro se petition for discretionaryreview. Seegenerally Tex. R. App.
P. 68-79 (governing proceedings in Court of Criminal Appeals). Any petition for discretionary
review must be filed within thirty days from the date of either this opinion or the date that this Court
overrules the last timelymotionfor rehearing filed. See id. R. 68.2. The petitionmust be filed with
the clerk of the Court of Criminal Appeals. Id. R. 68.3(a). If the petition is mistakenly filed with
this Court, it will be forwarded to the Court of Criminal Appeals. Id. R. 68.3(b). Any petition for
discretionary review should comply with the rules ofappellate procedure. Seeid. R. 68.4. Once this
Court receives notice that a petition has been filed, the filings in this case will be forwarded to the
Court of Criminal Appeals. See id. R. 68.7.
^ Cellmark 13988 Diplomat Dr. Suite 100
Dallas, TX 75234
te_FORENS!CS Tel. 800-752-2774
LabCorp Spedalry Testing Group Fax. 214-271-8322
May 29, 2013
Keith Lauerman
Attorney at Law
1524 S.IH-35 #175
Austin, Texas 78704
Agency Case Number D1DC-12-301480
Austin Police Department Laboratory#: Ll 207393
Orchid Cellmark case Number: CR13-0013
Dear Mr. Lauerman,
I have reviewed the discovery materials released by the Austin Police Department Forensic
Science Services Division, including all processes and procedures performed inthis case, the
accreditations ofthe laboratory, thecurriculum vitae and proficiency test results ofall
laboratory personnel involved in this case, and all laboratory standard operating procedures. I
have formed the following opinions concerning the results and conclusions rendered by their
laboratory regarding the testing performed in this case.
Itappears from the documentation received that the testing was performed in an appropriate
manner according togenerally accepted standards and practices inthe forensic community.
While there are a couple ofminor anomalies noted from the review ofthe materials, which I
will outline below, I have determined that the overall conclusions reached seem justified based ^
on the data generated. ^\
According to me initial DNA report dated 7/17/2012,Jhere were five items that DNA analysis]
was requested on. However, DNA analysis was only pTrfrjmed on two ofthese items. The j
tested items were lab item #34, a partially burned cigarette, and lab item #16, the blood /
standard from Alejandro Hernandez Jr.' Lab items #18 (swabs from the front passenger's side /
dashboard handle ofthe victim's vehicle), #26 (swabs from tie exterior front passenger door j
handle and surrounding textured area ofmardon Chevrolet Silverado) and #27 (swabs from j
interior front passenger door handle, grip, arm rest, and textured surfaces ofseat belt parts in j
maroon Chevrolet Silverado) were not tested. I cannot find any information in the case report j
orthe case file as to why these items were not tested for DNA. Testing ofthese items may /
produce additional results relevant to this case. ™,/
Lab item #34, the partially burned cigarette, produced a mixed DNA profile. While Thomas
Trent Atkinson is the source ofthe major component ofthis profile, there are minor peaks
present inthis profile as well. While the minor component istoo minimal to make any good
comparisons, these minor peaks arenot consistent with the DNA profile ofthevictim. Could
another person have been present in the vehicle that possibly touched this cigarette butt?" It is
possible that the DNA profile ofanother person could be developed ifother samples in this
case were tested.
%C6lIITiark
K, *3988 Diplomat Dr. Suite 100
£3 mRFMQIPQ Dallas, TX 75234
^\r.T._.V.r..Y.?...... Tel. 800-752-2774
LabCorp Specialty Testing Group Fax. 214-271-8322
As an accredited laboratory we keep detailed records ofall reagents that are used during our
testing. We document the lot number and expiration date of each reagent as well as the quality
control steps taken for each reagent to ensure accurate and reliable results are obtained. In this
case the lot nurnbgrsfor reagents are listed for each process, but the expiration dates are jj^T"~
S5"°IJ22£^£tiiereagents. This information may be located in paperwork storedinJhe
laboratory, but Idonolhave this mfonrmtioiLtQ-reyiew. Have all reagents used in this case
been properly documented and quality checked where necessary? Were all reagents used prior
tofheir expiration dates? " `` * *3**""^ " ——-^—-——=———-—
During the processing ofDNA from the evidence and reference samples in this case there are'
several instances where the sample isremoved from a tube and transferred to a new tubeorto a
plate. These transfers create several chances for cross-contamination or sample switching to
occur. Agood laboratory practice is to have a second analyst do a check prior to transferring
samples to ensure that the sample is being transferred into the correctly labeled tube or into the
correct position on a plate. In this case, there is no indication that any transfer checks were
performed during anysteps of the process.
All of the testing in this case was performed properly and followed all laboratory standard
operating procedures and accreditation guidelines. The Austin Police Department Forensic
Science Services Division was able to obtain a mixed DNA profile from the partially burned
cigarette and Thomas Trent Atkinson is the source of the major component of this profile.
jQbyiQusly, DNA testing does not tell the jury how_pr when the DNA originated on this item.
DNA testing onlyindicates that this profile" was obtained from this piece of evidence. .
Sufficient amount ofthis sample remains for retesting ifit is deemed necessary^ ""
Should you have any questions, please call me at (214) 271-8338 or email me at
kbvrd@orchid.com.
Sincerely,
Kelli Byrd, M.S.
DNA Analyst IV
#!
If f*CkIilft«lt"k 13988 Diplomat Dr. Suite 100
^S UlFKIWOi B* Dallas, TX 75234
fe* FORENSICS Tel. 800-752-2774
—:.. .T.\.T.'.Vr.'.T.T Fax. 214-271-8322
LabCorp Specialty Testing Group
January 19, 2015
Ms. Sharon Atkinson
203 Windridge Dr.
Niederwald, TX 78640
Agency Case Number D1DC-12-301480
Austin Police Department Laboratory #: L1207393
Orchid Celhnark case Number: CR13-0013
Dear Ms. Atkinson,
This letter is in response to a subpoena we received asking for clarification about the work
Celhnark Forensics performed in this case. No physical testing of evidence was performed at
Celhnark Forensics in relation to this case. We did not test a cigarette butt for DNA. The only
work I performed on this case was a review of the discovery materials released by the Austin
Police Department Forensic Science Services Division, including all processes and procedures
performed in tins case by their laboratory, the accreditations of the laboratory, the curriculuin
vitae and proficiency test results of all laboratory personnel involved in this case from the
Austin Police Department, and all Austin Police Department laboratory standard operating
procedures.
Should you have any questions, please call me at (214) 271-8338 or email me at
kbvrd@orchid.com.
Sincerely,
Kelli Byrd, M.S.
Supervisor, Forensic Casework
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