                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00289-CR

DARRON TRAY MOSS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 82nd District Court
                              Falls County, Texas
                             Trial Court No. 7047


                         MEMORANDUM OPINION


      Darron Tray Moss was convicted of murder and sentenced to 99 years in prison.

We affirmed Moss’s conviction in an unpublished opinion. Moss later filed a motion

for DNA testing, which the trial court denied. On appeal, Moss challenges the denial of

his motion. We affirm.

      A court may grant DNA testing only if it finds that: (1) the evidence

“still exists” in a “condition making DNA testing possible;” (2) the “chain of custody”

establishes that the evidence has not been “substituted, tampered with, replaced, or
altered in any material respect;” and (3) “identity was or is in issue.” TEX. CODE CRIM.

PROC. ANN. art. 64.03(a)(1) (Vernon Supp. 2008).         The defendant must prove by a

preponderance of the evidence that: (1) he would not have been convicted had testing

revealed “exculpatory results;” and (2) his request is “not made to unreasonably delay

the execution of sentence or administration of justice.” Id. at art. 64.03(a)(2).

        We apply a bifurcated standard of review to the trial court’s ruling on a motion

for DNA testing. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). “[W]e afford

almost total deference to a trial court’s determination of issues of historical fact and

application-of-law-to-fact issues that turn on credibility and demeanor, while we review

de novo other application-of-law-to-fact issues.” Id.

        We first note that Moss takes issue with the trial court’s decision to rule on his

motion without conducting a hearing. However, a hearing is not required. See Whitaker

v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004); see also Russell v. State, 170 S.W.3d 732,

733 (Tex. App.—Waco 2005, no pet.).

        We next address the State’s argument that Moss failed to show that identity was

in issue at trial. 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. TEX. CODE CRIM.

PROC. ANN. art. 64.03(a)(1)(B); Birdwell v. State, 276 S.W.3d 642, 644 (Tex. App.—Waco

2008, pet. dism’d). Here, several witnesses identified Moss as the person who shot the

victim. Moss testified that he was drunk on the night of the offense, did not know

whether he shot the victim, and did not want to kill anyone. He requested a self-

defense instruction, which the trial court denied. Moss argues that he maintained his


Moss v. State                                                                         Page 2
innocence during trial, but admits that his counsel presented the theory of self-defense

at trial. Moss has not shown that identity was in issue. See Birdwell, 276 S.W.3d at 646;

see also Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d).

        Because Moss has not established his entitlement to DNA testing, we overrule his

sole issue and affirm the trial court’s order denying his motion for DNA testing.




                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 8, 2009
Do not publish
[CRPM]




Moss v. State                                                                           Page 3
