Fuller, Alonzo Diego

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-16,351-09

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EX PARTE ALONZO DIEGO FULLER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 12265-F IN THE 35TH DISTRICT COURT

FROM BROWN COUNTY

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            Per curiam.

O R D E R

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to ninety-nine years’ imprisonment. The conviction and sentence were affirmed on direct appeal, and Applicant’s petition for discretionary review was refused by this Court. Fuller v. State, No. 11-91-00276-CR (Tex. App.— Eastland May 20, 1993, PD-0901-93 ref’d). Applicant’s initial writ application challenging the conviction was denied by this Court in 1994, and his four writ applications filed since then were dismissed as subsequent between 2000 and 2007. See Ex parte Fuller, Nos. 16,351-04, -05, -06, -07, -08 (Tex. Crim. App.); Tex. Crim. Proc. art. 11.07 § 4. Applicant filed the current fifth subsequent writ application in the trial court in 2013.

             First, Applicant complains about physical evidence that was not presented at his trial, specifically a washcloth used by the victim for cleaning after the sexual assault occurred and the different panties she wore during the assault and after. It appears this and other evidence was together in a box that was sent to a DPS crime lab for analysis, which was completed, but the box was misplaced before trial and later returned by DPS to the investigating police agency after Applicant’s trial had ended. Applicant states that he did not learn of the evidence in the misplaced box or its handling before filing his initial or subsequent writ applications, so he argues consideration of his claims based on this evidence in the current application should not be barred by the abuse of writ doctrine. See Tex. Code Crim. Proc. art. 11.07 § 4(a)(1). After reviewing the documents Applicant includes with his habeas application, this Court agrees that Applicant’s claims based on the evidence in the misplaced box are newly available to him, so they are not barred as subsequent. Even so, Applicant has not demonstrated that he is entitled to habeas relief based on this evidence.

            According to the DPS lab report, a seminal fluid component was detected on the washcloth but no specific protein was present, so the presence of seminal fluid could not be confirmed. No seminal fluid was found on the panties or the other items in the misplaced box (a night gown, a pillow case, a bed sheet, and a blanket). The evidence, as tested in 1991, is not exculpatory and does not show that Applicant, by clear and convincing evidence, did not commit the sexual assault. See Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Schlup v. Delo, 513 U.S. 298 (1995). Also, because the testing in 1991 did not reveal the presence of any seminal fluid or other fluid on the items in the misplaced box, the evidence had little, if any, inculpatory or exculpatory value, so their exclusion as evidence at Applicant’s 1991 trial does not undermine confidence in the jury’s guilty verdict. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Applicant’s habeas claims based on the evidence in the misplaced box as it was tested in 1991 are denied.

            Applicant further complains that the evidence in the misplaced box was available for testing during his 2002 Chapter 64 DNA proceeding, which did not result favorably for Applicant, because DPS had returned it, but it was secreted or improperly stored or destroyed by the police agency that received it, the prosecution, or another State agent. He further claims that new testing techniques can be used on the evidence in the misplaced box since the analysis was initially performed on it in 1991. He asks this Court to order the State to locate the misplaced box of evidence and have its contents tested. The issue is not properly before this Court in an Article 11.07 habeas application. See Tex. Code Crim. Proc. art. 11.07 §§ 1-3; Ex parte Alba, 256 S.W.3d 682, 685 (Tex. Crim. App. 2008). The proper procedure to raise these claims is another Chapter 64 DNA motion in the trial court. See Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008); State v. Holloway, 360 S.W.3d 480 (Tex. Crim. App. 2012); Tex. Code Crim. Proc. art. 64. These claims are therefore denied as not cognizable in a habeas application. 

            Second, Applicant complains about testimony given at his trial by serologist Fred Zain. This Court is aware of the problems that have arisen from Zain’s testimony in other trials. See, e.g., Matter of Investigation of West Virginia State Police Crime Laboratory, Serology Div., 438 S.E.2d 501 (W.Va.,1993); Ex parte Davis, 957 S.W.2d 9 (Tex. Crim. App. 1997). Nonetheless, Applicant should have raised his claim concerning Zain’s testimony in a prior writ application because it is not based on any newly obtained evidence. The claim is therefore barred as subsequent. Tex. Code Crim. Proc. art. 11.07 § 4. Even if the claim were not barred, Applicant fails to show in his habeas application that Zain’s trial testimony was false or misleading as alleged.

            Third, Applicant complains that the State failed to preserve biological material so that further DNA testing could be performed on it. The claim is not appropriate in an Article 11.07 habeas proceeding. See Tex. Code Crim. Proc. art. 11.07 §§ 1-3; Ex parte Alba, 256 S.W.3d at 685. Further, the material introduced as evidence at trial was later properly destroyed by the district clerk according to the appeal in the Chapter 64 proceeding, see Fuller v. State, No. 11-03-00093-CR (Tex. App.—Eastland Oct. 13, 2005), and Applicant fails to show that the evidence in the misplaced box has been improperly stored or destroyed, which would be an issue at a Chapter 64 DNA proceeding. To the extent the claim refers to the evidence destroyed by the district clerk, it is dismissed as subsequent; to the extent the claim refers to the evidence in the misplaced box, it is denied as not cognizable in habeas.

            Based on this Court’s independent review of the habeas record, this subsequent writ application is dismissed in part and denied in part as discussed above. In addition to the parties and the trial court, copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Filed: April 2, 2014

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