                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-09-00409-CR

VAUGHN BIRDWELL,
                                                                      Appellant
    v.

THE STATE OF TEXAS,
                                                                      Appellee



                                From the 54th District Court
                                 McLennan County, Texas
                                 Trial Court No. 1995-324-C


                               MEMORANDUM OPINION


         Raising five issues, Vaughn Birdwell appeals the trial court’s denial of his

successive (his fourth) motion for forensic DNA testing, which was filed on October 6,

2009.1 We affirmed the trial court’s denial of his third motion for forensic DNA testing

in Birdwell v. State, 276 S.W.3d 642 (Tex. App.—Waco 2008, pet. ref’d).

         Birdwell’s first issue complains that the trial court erred because it denied his

motion pursuant to article 64.01 only. Birdwell’s successive (fourth) motion is entitled:

1The law in effect on that date governs this fourth motion. See Act of May 20, 2011, 82nd Leg., R.S., ch.
366, §§ 4-5, 2011 Tex. Sess. Law Serv. 1015, 1016 (West).
“SUCCESSIVE MOTION TO CONDUCT FORENSIC DNA TESTING UNDER

CHAPTER 64, ARTICLES 64.01 – 64.05, TEXAS CODE OF CRIMINAL PROCEDURE.”2

The trial court’s order, which summarily denied the motion before the State filed a

response, provides in pertinent part:

              Came on to be considered on December 3, 2009, that certain
         document designated by the defendant as follows:

                    Successive Pro Se Motion to Conduct Forensic DNA Testing
                    Pursuant to Article 64.01 of The Texas Code of Criminal Procedure,

         and after review of same, the Court is of the opinion that the same should
         be, and is in all respects DENIED.

         We disagree with Birdwell’s conclusion that the trial court denied his motion

pursuant to article 64.01 only. The trial court’s order merely attempts to paraphrase the

title of Birdwell’s motion; it does not purport to deny the motion under article 64.01

alone. Issue one is overruled.

         We proceed to Birdwell’s third issue, which generally argues that the trial court

erred in denying his motion under article 64.03.                       We also address Birdwell’s

introductory argument that the 2007 amendment to article 64.03(b) prohibits a finding

that identity was not an issue in the case. The evidence from Birdwell’s murder trial is

detailed in our 2008 opinion, and we held:

                 A threshold requirement for the trial court’s ordering forensic DNA
         testing is that the defendant’s identity was or is an issue in the case. …
         The trial court found that identity “was not, never was and is not now an
         issue.”



2Birdwell’s entire brief and all of his documents filed with the trial court, while typewritten, are typed in
“all caps” (all capital letters), which is difficult to read and which we discourage.

Birdwell v. State                                                                                     Page 2
                We agree with the State and the trial court that Birdwell’s identity
         as the person who stabbed and killed Irene is not and was not an issue in
         the case.

         …

                  The purpose of DNA testing under article 64.03 is to provide an
         avenue by which a defendant may seek to establish his innocence by
         excluding himself as the perpetrator of the offense. See Blacklock v. State,
         235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007). Birdwell asserted self-
         defense against the “third person” in Irene’s house, and the jury was
         charged on but rejected that theory in finding Birdwell guilty. The
         contested issue in his trial was not who stabbed and killed Irene, but why
         Birdwell stabbed her. Birdwell judicially admitted that he stabbed her.
         Identity was not and is not an issue, and the trial court did not err in so
         finding. See Lyon v. State, --- S.W.3d ---, --- & n.1, 2008 WL 4587242, at *2 &
         n.1 (Tex. App.—San Antonio Oct. 15, 2008, no pet. h.) (identity was not at
         issue where defendant had admitted he stabbed his wife in self-defense,
         and postconviction DNA testing is not for establishing a defense); Reger v.
         State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d)
         (perpetrator’s identity not at issue where defendant admitted to shooting
         victim in self-defense); In re State ex rel. Villalobos, 218 S.W.3d 837, 840-
         41 (Tex. App.—Corpus Christi 2007, orig. proceeding) (identity was not at
         issue where defendant convicted of murder sought DNA testing to prove
         self-defense); Roughly v. State, 2003 WL 22450442, at *1 (Tex. App.—Dallas
         Oct. 29, 2003, pet. ref’d) (not designated for publication) (perpetrator’s
         identity not at issue where defendant admitted to stabbing victim and
         throwing him off balcony in self-defense). We overrule Birdwell’s third
         issue to the extent it asserts identity is or was at issue.

Birdwell, 276 S.W.3d at 644-46.

         Birdwell emphasizes the propriety of his successive (fourth) motion because

article 64.03(b) was amended after the filing of his third motion, which was filed on July

12, 2006. Article 64.03(b) was amended in 2007 to provide:

         (b) A convicted person who pleaded guilty or nolo contendere or, whether
         before or after conviction, made a confession or similar admission in the case
         may submit a motion under this chapter, and the convicting court is
         prohibited from finding that identity was not an issue in the case solely on
         the basis of that plea, confession, or admission, as applicable.

Birdwell v. State                                                                          Page 3
TEX. CODE CRIM. PROC. ANN. art. 64.03(b) (West Supp. 2011) (emphasis added).

Amended article 64.03(b) became effective September 1, 2007, did not apply to

Birdwell’s third motion, and thus was not at issue in our 2008 opinion. Act of May 24,

2007, 80th Leg., R.S., ch. 1006, §§ 5(b), 6, 2007 Tex. Gen. Laws 3523, 3525.

         Birdwell argues that, under amended article 64.03(b), his admissions at his trial

that he stabbed the victim preclude a denial of DNA testing on the ground that identity

was not an issue in the case. But the State points out, and we agree, that amended

article 64.03(b) prohibits a finding that identity was not an issue in the case solely on the

basis of that admission. Our 2008 opinion did focus on Birdwell’s admissions that he

stabbed the victim, but it also discussed the following evidence supporting a finding

that identity was not an issue in the case: (1) the victim’s 9-1-1 call that Birdwell was

beating on her doors and windows; (2) the victim’s phone conversation with police

dispatch that Birdwell had broken into her house and that she was cut; and (3) the

police officer’s testimony that when he entered the house, he encountered Birdwell

(“bloody knife in hand and covered in blood, talking on the phone with 9-1-1”) and

found the victim dying of multiple stab wounds.           Birdwell, 276 S.W.3d at 644-45.

Because identity was not an issue in the case solely on the basis of Birdwell’s

admissions, but also because of this other evidence, the trial court did not err in denying

Birdwell’s motion. We overrule issue three.

         Birdwell’s second issue complains that the trial court and the State failed to

follow article 64.02’s procedural steps. See TEX. CODE CRIM. PROC. ANN. art. 64.02 (West


Birdwell v. State                                                                      Page 4
Supp. 2011). Because, as we have held above, Birdwell is not entitled to DNA testing

under article 64.03, the failure to follow article 64.02’s procedural steps is harmless. The

failure to follow article 64.02 is also harmless because that failure does not entitle

Birdwell to DNA testing. Issue two is overruled.

          Issue four complains of the trial court’s denial of Birdwell’s motion requesting

the trial court to take judicial notice of facts in the trial record that would establish by a

preponderance of the evidence that Birdwell would not have been convicted if

exculpatory results had been obtained through DNA testing. See id. art. 64.03(a)(2)(A).

Any error in the trial court’s refusal to take judicial notice is harmless because, as we

have held above, Birdwell is not entitled to DNA testing under article 64.03. Issue four

is overruled.

          Issue five complains of the trial court’s refusal to make findings of fact and

conclusions of law in support of its denial of Birdwell’s motion.3 Article 64.03 requires

findings only if the trial court orders forensic DNA testing. See id. art. 64.03(a)(1). The

trial court did not err in denying Birdwell’s request for findings and conclusions. Issue

five is overruled.

          Having overruled all of Birdwell’s issues, we affirm the trial court’s order

denying his successive motion for forensic DNA testing.




                                                           REX D. DAVIS
                                                           Justice

3   The trial court made findings and conclusions on Birdwell’s third motion.

Birdwell v. State                                                                       Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2011
Do not publish
[CRPM]




Birdwell v. State                               Page 6
