                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-091-CR


MAURICE GLENN WILLIS, SR.                                           APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

                                          ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                          ------------

 MEMORANDUM OPINION ON REMAND AND ON REHEARING 1

                                          ------------

      After reviewing Appellant Maurice Glenn Willis, Sr.’s motion for rehearing,

we deny the motion. We withdraw our June 12, 2008 opinion and judgment

on remand and substitute the following.

      This case is before us on remand from the court of criminal appeals. On

original submission, we overruled Willis’s five points complaining of the trial

court’s denial of his post-conviction motion for forensic DNA testing. See Willis

v. State, No. 02-06-00091-CR, 2007 WL 2792518, at *3 (Tex. App.—Fort


      1
          … See T EX. R. A PP. P. 47.4.
Worth Sept. 27, 2007) (mem. op.) (not designated for publication). The day

before we handed down the Willis opinion, the court of criminal appeals handed

down its opinion in Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App.

2007). The court of criminal appeals subsequently granted Willis’s petition for

discretionary review, vacated our judgment, and remanded the case back to this

court to consider the effect, if any, of Blacklock on the reasoning and analysis

in our previous opinion.   See Willis v. State, No. PD-1741-07, 2008 WL

383062, at *1 (Tex. Crim. App. Feb. 13, 2008). We will once again affirm.

      Blacklock was convicted in 1995 of an aggravated robbery and an

aggravated sexual assault. Blacklock, 235 S.W.3d at 232. The complainant

knew Blacklock and identified him as the one who robbed and sexually

assaulted her. Id. The State relied on evidence of DNA testing of semen from

the complainant’s vaginal smears to show that a sexual assault occurred, but

the evidence was inconclusive on the issue of identity. Id. In 2005, Blacklock

filed a motion for DNA testing of the semen from the complainant’s vaginal

smears and of semen left by her attacker on her pants and panties during the




                                       2
attack.2 Id. Blacklock alleged in part that there was no indication that the

State tested the semen on the pants or panties. Id. The trial court denied his

motion, finding in part that he had failed to show that identity was or is an

issue and had also failed to show, by a preponderance of the evidence, that he

would not have been convicted if exculpatory results had been obtained through

DNA testing. Id.

      The court of appeals affirmed the trial court’s ruling denying Blacklock’s

motion for DNA testing, reasoning in part that identity was not an issue

because Blacklock had failed to allege that identity is an issue and because the

complainant testified at the 1995 trial “that she knew [Blacklock] and that he

had robbed and sexually assaulted her.” Id.

      The court of criminal appeals disagreed with the court of appeals, stating

in part, “That the victim testified that she knew appellant and identified him as

her attacker is irrelevant to whether appellant’s motion for DNA testing makes

his identity an issue and whether it shows that exculpatory DNA tests would

prove his innocence.” Id. at 233. Accordingly, “The language and legislative

history of Article 64.03(a)(1)(B) make it very clear that a defendant, who



      2
        … A trial court must order DNA testing only if the statutory requirements
of article 64.03 are met, that is, only if (1) the evidence still exists and identity
was or is an issue in the case; and (2) the convicted person establishes by a
preponderance of the evidence that the person would not have been convicted
if exculpatory results had been obtained through DNA testing. T EX. C ODE C RIM.
P ROC. A NN. art. 64.03 (Vernon 2006).

                                         3
requests DNA testing, can make identity an issue by showing that exculpatory

DNA tests would prove his innocence.” Indeed, “a defendant proves his right

to DNA testing of evidence by showing that exculpatory DNA results would

establish the defendant’s innocence.” Id. n.4.

       The court observed that Blacklock’s motion alleged in part as follows:

       Had the biological evidence been subjected to proper DNA testing
       capable of determining the identity of the donor of the semen, as
       defendant believes is possible today, and such results excluded the
       defendant as the donor, it is reasonably probable that the
       defendant would not have been prosecuted or convicted.

Id. at n.2. The court reasoned that Blacklock’s motion for DNA testing “has

fairly alleged, and shown by a preponderance of the evidence, that the

[complainant’s] lone attacker is the donor of the material for which [Blacklock]

seeks DNA testing,” thus “appear[ing] to allege that DNA testing of this

material . . . will exclude [Blacklock] as the [complainant’s] attacker.” Id. at

232.    It concluded, “Thus, on this record, exculpatory DNA test results,

excluding [Blacklock] as the donor of this material, would establish [Blacklock’s]

innocence.” Id.

       In the case before us, the court of criminal appeals stated that we had

affirmed the trial court’s denial of Willis’s second motion for DNA testing

“based in part on the trial court’s finding that identity was not an issue in the

case because [Willis] committed the murder in the presence of a third party.”

See Willis, 2008 WL 383062, at *1. Considering this observation in light of

                                        4
the reasoning and holding in Blacklock that a complainant’s testimony that she

knew the accused and her identification of him as the perpetrator is irrelevant

as to whether the defendant can make identity an issue with exculpatory DNA

test results, our task here is to determine whether—notwithstanding our original

opinion’s reliance on the trial court’s finding that identity was not an issue

because Willis committed the murder in the presence of a third party—Willis

made identity an issue by showing that exculpatory DNA results would

establish his innocence. See Blacklock, 235 S.W.3d at 233. Willis did not

make such a showing.

      The relevant portion of Willis’s second motion for forensic DNA testing

reads as follows:

      There was evidence containing biological material that was secured
      in relation to the offense that is the basis of the challenge[d]
      conviction and was in the possession of the State during the trial
      of the offense, [b]ut:

            (1) was not previously subjected to DNA testing

            (B) through no fault of hi[m][.] For reason that are of a nature
            such that the interest of justice require DNA testing. And
            that the nature of the for[e]going styled and numbered cause
            require DNA testing [criminal procedure Article 64.01 a.b.]

      Movant present[s] to the court that there was material evidence in
      the possession of the state during the prosecution of the case, and
      at the time of conviction it was known that if subjected to
      scientific testing it would more likely th[a]n not establish the
      identity of the person who committed the offense, or exclude him
      from the group of person[s] who could have committed the
      offense. [code of criminal proc. Art. 38.89] [Emphasis added.]

                                        5
      Willis thus alleged that scientific testing of the material would (1)

establish the identity of the person who committed the offense or (2) exclude

him from the group of persons who could have committed the offense.              It

would seem that Willis made a similar showing by his allegations as the

appellant in Blacklock, but he has not. As did the court in Blacklock, we must

consider Willis’s allegations in light of the facts of the case; we do not consider

his allegations in a vacuum.

      In Blacklock, the victim had been sexually assaulted, and the State had

collected semen samples from the victim’s vaginal smears, pants, and panties.

The appellant’s allegation that it was reasonably probable that he would not

have been prosecuted or convicted had the biological evidence been subjected

to proper DNA testing, and such results excluded him as the donor, certainly

did make the necessary showing that exculpatory DNA results would establish

his innocence because the semen was that of the “lone attacker” and no one

else. Id. at 232. Indeed, there was no evidence recited in the opinion that the

semen came from anyone but the perpetrator. Thus, logically, if the material

was tested and excluded the appellant as the donor, then the results would

establish his innocence because the donor of the material—who is the person

responsible for sexually assaulting the victim and no one else—would not be the

appellant.




                                        6
      Our case is different from Blacklock because if the material was tested

and excluded Willis as the donor, this result would not establish his innocence

because the donor of the material is not necessarily the person—or “lone

attacker”—ultimately responsible for murdering Willis’s stepfather. The donor

of the material could be Willis’s stepfather or any other person who had

previously been in, on, around, or somehow in contact with the items that Willis

seeks to be tested and left behind DNA material. 3 To put it in the same terms

as the court in Blacklock, on this record, Willis has not made identity an issue

because he has not “fairly” alleged and shown, by a preponderance of the

evidence, that DNA test results of the material that he seeks to have tested,

excluding him as the donor, would establish his innocence. See Blacklock, 235

S.W.3d at 232–33. Rather, the only thing that testing the material would

establish is that it is someone’s or something’s DNA material. See Prible v.

State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (“Evidence of another

person’s DNA in addition to Appellant’s is not exculpatory evidence in this case

due to the additional evidence presented at trial. Thus, even if the evidence

was retested and determined to contain another person’s DNA . . . , it would

not establish by preponderance of the evidence that Appellant would not have



      3
       … Willis requested that the following items be tested: finger nails, tennis
shoes, two jackets, shirt, shorts, boxers, pillow case, mattress pad, iron,
telephone, pager, cartridges, wood club, duffel tennis shoes, rug, and watch.


                                        7
been convicted if the jury had heard that DNA from a third-party was present.”)

(citation omitted); see also Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App.

2002) (considering appellant’s due process claim and reasoning that, without

more, the presence of another person’s DNA at the crime scene will not

constitute affirmative evidence of appellant’s innocence).

      Because the Blacklock opinion does not alter the outcome in our previous

decision on the issue of identity and showing innocence, Willis, No. 02-06-

00091-CR, 2007 WL 2792518, at *2–3 (Tex. App.—Fort W orth Sept. 27,

2007), we again affirm the trial court’s denial of Willlis’s post-conviction motion

for forensic DNA testing.4




                                            DIXON W. HOLMAN
                                            JUSTICE

PANEL F: DAUPHINOT, HOLMAN, and WALKER, JJ.

DAUPHINOT, J. dissents without opinion.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)




                                        8
DELIVERED: July 17, 2008 4



      4
        … The court of criminal appeals handed down its opinion in Routier v.
State, No. AP-75,617, 2008 WL 2486417 (Tex. Crim. App. June 18, 2008),
shortly after our original opinion issued on June 12, 2008. Willis thereafter
timely filed a motion for rehearing alleging that “the facts of this case are
similar to those in Routier. Just as the Court of Criminal Appeals ordered DNA
testing in that case, this Court should order DNA testing in this case.” Willis
specifically directs us to a portion of the Routier opinion reasoning, “We think
that adding DNA evidence that would corroborate the appellant’s account of an
unknown intruder to the evidentiary mix could readily have tipped the jury’s
verdict in the appellant’s favor.” Id. at *12. And, “In our estimation, DNA
evidence showing that an unknown intruder . . . had left blood on the night
shirt and the door from the utility room to the garage, along with a facial hair
and a pubic hair, would more likely than not have caused the jury to harbor a
reasonable doubt as to the appellant’s guilt and decline to convict her.” Id.
W ithout specifically stating as much, Willis then sets forth a number of
references from the record that have the effect of raising the implication that
James “Shorty” Howze, an acquaintance of Lorenzo “Lo” Watts, the decedent,
may have been the individual responsible for murdering W atts. He points to
trial testimony that Watts had fired a gun at Howze a few days before Watt’s
body had been found, that Howze stole the gun from Watts, that Watts told
Howze to stay out of his house, and that he and Watts argued a lot. Having
once again examined all of the testimony at his July 2000 trial, we disagree
with Willis’s assertion that the facts of this case are similar to those in Routier.
Unlike in Routier, in which the appellant contended that an unknown intruder
was responsible for murdering her children, the evidence in this case showed
that Howze, who was Watts’s “good friend,” not only lived next door to Watts
in a property owned by Watts, but that he was a regular visitor of Watts’s
abode. Assuming as we must that all of the post-conviction DNA testing to
which Willis is entitled would prove favorable to him, the jury would likely not
have considered it significant in its assessment of the evidence that DNA
material linked to Howze was discovered on the items that he requests be
tested in light of the obvious fact that Howze lived next door to Watts and
often visited Watts’s residence. Indeed, the jury could very well have
reasonably expected that Howze’s DNA material would be discovered at
Watts’s residence. And unlike in Routier, Willis has not specifically identified
what form of biological material the requested items are apparently supposed
to contain. We thus do not know if he seeks to have hair, blood, saliva, or
                                                                      (continued...)

                                         9
      4
        (...continued)
some other biological material tested. Consequently, we must conclude that
there is a less than 50% chance that Willis’s jury would not have convicted him
had it been aware of presumptively favorable DNA test results. See id. at *11.

                                      10
