March 1, 2016 - DNA ISSUE

DNA ISSUE

UNOPPOSED MOTION TO STAY PROCEEDINGS PENDING REPORT

BY TEXAS DPS REGARDING DNA TEST RESULTS MARCH 1, 2016

AP-77,046

IN THE COURT OF CRIMINAL APPEALS OF AT AUSTIN HENRY W. SKINNER, Appellant VS. THE STATE OF TEXAS, Appellee

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COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/1/2016 1:04:47 PM Accepted 3/1/2016 1:19:12 PM ABEL ACOSTA TEXAS CLERK

No. AP-77,046

March 1, 2016

APPELLANT’S UNOPPOSED MOTION TO STAY PROCEEDINGS PENDING REPORT BY TEXAS DEPT. OF PUBLIC SAFETY REGARDING DNA TEST RESULTS TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Appellant Henry W. Skinner respectfully moves the Court to stay proceedings in this appeal because the disposition of this matter could be affected by a forthcoming report from the Texas Department of Public Safety (DPS) concerning the results of the DNA testing in this case. Appellee does not oppose the requested relief.1 In support of which request, Mr. Skinner would show the Court as follows.

This is an appeal from the finding of the 31st District Court of Gray County, entered pursuant to Tex. Code Crim. Proc. art. 64.04 (after examining the results of post-conviction DNA testing, convicting court must make a finding “whether, had the results been available during the trial of the offense, it is reasonably probable

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On March 1, 2016, undersigned counsel conferred via e-mail with counsel for Appellee, who stated that Appellee is unopposed to the Court’s entering a stay as requested here. This representation is not intended to suggest that Appellee endorses every statement in this Motion.

that the [defendant] would not have been convicted”).2 As Mr. Skinner very recently advised the Court, DPS and the Texas Forensic Science Commission in the last few months have issued advisories raising the possibility that the DNA results reported in Mr. Skinner’s case may contain errors.

See Appellant’s Advisory to the Court Regarding Potential Errors in DNA Analysis

by Texas Dept. of Public Safety (filed February 19, 2016), Exhibits 1 and 2. In response to these notifications, Mr. Skinner has specifically requested re-analysis of the DNA test results in his case. Id. at Exhibit 4.

DPS has long intended to conduct a re-analysis of the DNA test results in Mr. Skinner’s case. Doing so has been delayed because DPS needed to acquire new specialized software to perform probabilistic genotyping, and to rewrite their laboratory’s standard operating procedures to respond to the new questions being

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A summary of the procedural history of the case may be useful. In 1995, Mr. Skinner was convicted of capital murder and sentenced to death. This Court affirmed. Skinner v. State, 956 S.W.2d 532 (Tex. Crim. App. 1997). After various post-conviction proceedings, in September 2011 Mr. Skinner moved in the convicting court for forensic DNA testing. See Tex. Code Crim.

Proc., Ch. 64. It was his third attempt to obtain forensic DNA testing under Ch. 64. See Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003); Skinner v. State, 293 S.W.3d 196 (Tex. Crim. App. 2009). The third motion was denied, and Mr. Skinner appealed. Before this Court decided his appeal, the parties decided to conduct the DNA testing Mr. Skinner had sought, as well as additional DNA testing proposed by the State; thus, this Court dismissed the appeal as moot. Skinner v. State, No. AP-76,675 (Tex. Crim. App., June 20, 2012) (per curiam) (not designated for publication). Nuclear DNA testing proceeded; the results were reported in October 2012 and February 2013. Mitochondrial DNA testing followed; those results were reported in August 2013. In February 2014, the convicting court held a hearing concerning the DNA testing results; it entered findings in July 2014. Mr. Skinner timely appealed. Briefs were filed and the Court heard oral argument in April 2015.

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raised about the accuracy of DNA “calls” based on samples where testing indicates the presence of a mixture of DNA from different contributors. DPS has now acquired the requisite new software and its new operating procedures will take effect on March 18. While cases with pending criminal trials will understandably be given priority in DPS’s caseload, the lab is expected to turn to its reassessment of the test results in this case as soon as practicable thereafter.

The forthcoming DPS report will contain information that could significantly change the evidentiary picture in this case. For example, DPS’s previous calls with respect to DNA mixtures found on the knife believed to have caused the fatal wounds to Elwin Caler and Randolph Busby may well be called into question under the new operating procedures. That, in turn, could affect this Court’s evaluation of the parties’ respective arguments or even require a remand to the convicting court for further review or additional proceedings.

Under such circumstances, it would be appropriate and prudent for the Court to stay proceedings on this appeal until the DPS has produced its revised report concerning the DNA testing in this case. We request that the Court stay proceedings and direct the parties to alert the Court as soon as the revised report has been provided by DPS, and to advise the Court within 30 days thereafter of their

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