           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                        PD-0811-08

                       GLENN RYDEL ARMSTRONG, Appellant

                                              v.

                                 THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

       Per curiam.

                                      OPINION

       Appellant was convicted in 1993 of aggravated assault and sentenced to 99 years. His

conviction was affirmed on appeal. Armstrong v. State, No. 05-92-01851-CR slip op. (Tex.

App.–Dallas Nov. 26, 1996). In 2006, appellant filed a post-conviction motion for DNA

testing. The trial court denied the motion.

       The court of appeals upheld the denial of the motion. Armstrong v. State, No. 05-07-

00117-CR slip op. (Tex. App.–Dallas Dec. 11, 2007). The court held that although identity

was an issue in the case, exculpatory DNA results excluding appellant would not have
                                                       GLENN RYDEL ARMSTRONG – 2


resulted in a different outcome because there was sufficient other competent evidence

connecting appellant to the crime. Id. at 8-9.

       Appellant has filed a petition for discretionary review, contending in part that the

court of appeals’ holding that the lone attacker’s identity is in issue, yet exculpatory DNA

results would not establish innocence, is illogical and contradictory, and is at odds with this

Court’s opinion in Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007).

       This Court recently handed down Esparza v. State, PD-1616-07 slip op. at 17 (Tex.

Crim. App. May 13, 2009), in which we held that the court of appeals’ decision to uphold the

trial court’s denial of the post-conviction DNA motion because “there [was] sufficient

evidence, besides DNA evidence, to establish guilt . . . conflicts with our unanimous opinion

in Blacklock.” We further held that non-DNA evidence connecting the appellant to the

crime, such as eye-witness identification, “is of no consequence in considering whether [the

appellant] has established that, by a preponderance of the evidence, exculpatory DNA tests

would prove his innocence.” Id. at 18.

       The court of appeals did not have the benefit of our opinion in Esparza. We

summarily grant appellant’s petition for discretionary review, vacate the judgment of the

court of appeals, and remand this case to that court to reconsider in light of Esparza.


DELIVERED: JUNE 24, 2009
DO NOT PUBLISH
