AFFIRM; Opinion issued April 29, 2013




                                                            S
                                                          In The
                                                    Court of Appeals
                                             Fifth District of Texas at Dallas

                                                        No. 05-11-00536-CR

                                           JAMES A. ROUGHLEY, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the County Criminal Court No. 2
                                             Dallas County, Texas
                                     Trial Court Cause No. F95-02453-OI

                                           MEMORANDUM OPINION
                                       Before Justices Bridges, Lang, and Richter 1
                                               Opinion by Justice Bridges
          James A. Roughley appeals the denial of his second motion for post-conviction DNA

testing. In sixteen issues, appellant argues the trial court erred in failing to take judicial notice of

certain matters, including appellant’s trial testimony, appellant’s medical records, “the State’s

contentions that appellants [sic] injuries came from tussling over his own weapon,” appellant’s

“claims of being injured from a prior assault,” and appellant’s medical records from a prior

assault. Appellant claims the trial court erred in denying DNA testing of the decedent’s pocket

knife to identify the knife as the source of appellant’s injuries, identify the decedent as the

“perpetrator of a criminal act of aggravated assault with the pocket knife,” and support

appellant’s “testimony of tussling over the pocket knife” and “claim of being lacerated by the


   1
       The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
pocket knife in the instant of pushing [decedent] over the railings.” Appellant claims the DNA

testing will show the State willfully used perjured testimony, and the trial court misconstrued the

record in denying DNA testing. Appellant argues the trial court erred in denying his request for

an evidentiary hearing and in failing to appoint counsel to represent him in his attempt to obtain

DNA testing. We affirm the trial court’s order denying DNA testing.

       In March 1995, appellant was indicted on a charge of murdering James Nervis. At trial,

appellant testified he and Nervis “tussled around,” and Nervis cut appellant with a knife.

Appellant testified he killed Nervis “[i]n self defense” by stabbing Nervis with a knife “once in

the throat.” Appellant then pushed Nervis over a balcony railing. In August 1995, a jury

convicted appellant of murdering Nervis. The jury charge included nearly four pages instructing

the jury on the law of self defense and directed the jury to find appellant not guilty if it found he

was acting in self defense. On June 10, 1998, a panel of this Court affirmed appellant’s murder

conviction. Roughley v. State, No. 05-95-01305-CR, 1998 WL 300581 (Tex. App.—Dallas June

10, 1998, pet. ref’d) (not designated for publication).

       In 2002, appellant filed a motion for post-conviction DNA testing, which the trial court

denied. On October 29, 2003, a panel of this Court affirmed the trial court’s denial of DNA

testing on the grounds that the trial court was not required to examine the entire record of

appellant’s murder trial before denying appellant’s motion, and identity was not at issue.

Roughley v. State, No. 05-03-00049-CR, 2003 WL 22450442 (Tex. App.—Dallas October 29,

2003, pet. ref’d) (not designated for publication). In that appeal, appellant claimed his identity

was at issue because “[t]he identity of the first aggressor was critical to [his] claim of self

defense.” Id.

       In sixteen issues, appellant raises various arguments regarding the trial court’s failure to

take judicial notice of certain matters and in denying DNA testing which would generally

                                                –2–
support appellant’s claim that he acted in self defense. In addition, appellant claims DNA testing

would show the State willfully used perjured testimony, and the trial court misconstrued the

record in denying DNA testing. Finally, appellant argues the trial court erred in denying his

request for an evidentiary hearing and in failing to appoint counsel to represent him.

       None of appellant’s arguments raise the issue of identity or contradict appellant’s

testimony that he stabbed Norvis in the throat and threw him over a balcony railing, killing him.

Unless it finds that identity was or is an issue in the original trial, a convicting court may not

order post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B) (West

Supp. 2012). The issue here is not who committed the crime; instead, appellant is seeking to use

DNA evidence to show he acted in self defense. These concerns are not identity concerns. See

In re State ex rel. Villalobos, 218 S.W.3d 837, 840 (Tex. App.—Corpus Christi 2007, orig.

proceeding) (identity not at issue where issue raised in request for DNA testing was whether

findings of DNA testing would assist appellant with his claim of self defense).          Because

appellant’s identity was not at issue, the trial court did not abuse its discretion in denying

appellant’s request for post-conviction DNA testing. See id. We overrule appellant’s issues.

       We affirm the trial court’s denial of post-conviction DNA testing.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
110536F.U05




                                               –3–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES A. ROUGHLEY, Appellant                        On Appeal from the County Criminal Court
                                                    No. 2, Dallas County, Texas
No. 05-11-00536-CR         V.                       Trial Court Cause No. F95-02453-OI.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Lang and Richter participating.

      Based on the Court’s opinion of this date, the trial court’s order denying appellant James
A. Roughley’s motion for post-conviction DNA testing is AFFIRMED.


Judgment entered April 29, 2013.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




                                              –4–
