From the 14th Court of Appeals – Issues in DNA Testing and Reopening Convictions

Harlon Ray Buckner, II v. The State of Texas – Link to Opinion - Affirmed

DNA testing of old evidence has become almost routine, however, procedural issues can easily stand in the way of allowing a convicted person getting a new trial. Buckner v. State shows how careful an attorney must be to preserve rights of appeal when an inmate requests DNA testing after conviction.

Harlon Ray Buckner was convicted by a jury of aggravated kidnapping and sexual assault and sentenced to 20 years in TDC in 1997. In 2008, Buckner made a motion for post-conviction DNA testing under Article 64.03. The state indicated that the Harris County Clerks Office was in possession of a few pieces of evidence that could be DNA tested including a rape kit and some microscope slides containing hairs. The Trial Court ordered the testing done. Based upon the results of the testing the Trial Court concluded that the DNA testing was not favorable to Buckner. Buckner did not appeal this 2008 motion.

In 2009 the Trial Court appointed Tom Martin to represent Buckner in another motion for post-conviction DNA testing. Buckner claimed that a motion was filed in his brief, but the record has no mention of any motion being filed by Buckner or anybody else.

In September 2011 Buckner again requested DNA testing, and the trial court responded by looking to the DNA testing from 2008 and concluding that the results still were not favorable to Buckner and still would not have helped him avoid prosecution. Buckner appealed this decision on the grounds that the record was insufficient to determine if the previous testing was unfavorable to Buckner. The 14th Court of Appeals abated the appeal and directed the Trial Court to have a hearing to determine what happened in 2008 and to figure out if there were any later motions for DNA testing. During the Trial Court hearing, all parties agreed that there were no transcribed records about the 2008 hearing, and that Martin testified that he did not file a DNA motion in 2009, because he didn’t see any need. They did agree that the 2008 lab report was in existence and that was what everybody had relied upon in the 2011 hearing.

The 14th Court of Appeals affirmed the trial court’s 2011 order because the record indicated that there was no 2009 motion, and that Buckner did not appeal the 2008 denial. Additionally, Buckner did not argue that the 2008 report did not support the conclusions of the Trial Court that the results were unfavorable.