                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00049-CR


DARRELL WAYNE PHILLIPS                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 0557784D

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                         MEMORANDUM OPINION1

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      Appellant Darrell Wayne Phillips appeals the trial court’s denial of his third

motion for postconviction forensic DNA testing. We affirm.

                                   Background

      Appellant was convicted of involuntary manslaughter on March 30, 1995.

This court affirmed his conviction on direct appeal. Phillips v. State, No. 02-95-


      1
       See Tex. R. App. P. 47.4.
00136-CR, Slip. Op. 1–2 (Tex. App.—Fort Worth Sept. 26, 1996, no pet.) (not

designated for publication). In that opinion, this court noted:

       Paul Douglas was in appellant’s car when appellant gave witness
       Darrell Fields a ride. Appellant was arguing with Douglas over a
       money debt owed to appellant. Fields testified that appellant pointed
       a gun at Douglas and said, “[D]o you think I won’t shoot you?” The
       gun discharged, killing Douglas. Appellant claimed it was an
       accident. His statement to the Fort Worth Police Department was, “I
       spun around and the next thing I knew the gun went off in my hand.”

Id.

       Appellant’s first motion for postconviction DNA testing was denied by the

trial court in November 2010 because identity was not an issue. Phillips v. State,

No. 02-10-00560-CR, 2011 WL 4415494, at *1 (Tex. App.—Fort Worth Sept. 22,

2011, pet. ref’d) (mem. op., not designated for publication). This court affirmed

the trial court’s ruling. Id. at *3.

       The trial court denied Appellant’s second motion for postconviction DNA

testing in June 2014. Phillips v. State, No. 02-14-00489-CR, 2015 WL 294192,

at *1 (Tex. App.—Fort Worth Jan. 22, 2015, pet. ref’d) (mem. op., not designated

for publication).     Appellant’s appeal was dismissed for want of jurisdiction

because the notice of appeal was not timely filed. Id.

       On October 5, 2015, Appellant filed a third motion for forensic DNA testing,

the subject of this appeal. In his motion, Appellant alleged that in response to his

previous request for DNA testing, “the State’s Attorney, Andrea Jacobs[’]s

entr[ies] were, ‘Falsified, Fabricated and Altered facts and evidence used to gain

a favorable decision, even at the cost of affecting the integrity of the judicial


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proceeding.”   He further accused the prosecutor of violating sections 37.03,

37.09, and 37.10 of the penal code. Tex. Penal Code Ann. § 37.03 (West 2011),

§§ 37.09, 37.10 (West Supp. 2016).          Appellant additionally filed a separate

“request for evidentiary hearing.”

      The trial court denied Appellant’s third motion for DNA testing on

December 9, 2015, noting that “identity is not and was not an issue.” The trial

court also adopted the State’s proposed findings of fact and conclusions of law,

which included in relevant part:

      11.    The Second Court of Appeals summarized the relevant facts
             of this case as follows:

                   Paul Douglas was in [Defendant’s] car when
                   [Defendant] gave witness Darrell Fields a ride.
                   [Defendant] was arguing with Douglas over a
                   money debt owed to [Defendant]. Fields testified
                   that [Defendant] pointed a gun at Douglas and
                   said, “[D]o you think I won’t shoot you?” The gun
                   discharged, killing Douglas. [Defendant] claimed
                   it was an accident. His statement to the Fort
                   Worth Police Department was, “I spun around
                   and the next thing I knew the gun went off in my
                   hand.”

             Phillips v. State, No. 02-95-00136-CR, Slip. Op. 1–2 (Tex.
             App.—Fort Worth Sept. [26], 1996, no pet.) (not designated for
             publication).

      12.    Regina Sheperd, Defendant’s common-law wife, testified that
             Defendant admitted to her that he shot Paul Douglas during a
             struggle.

      13.    Defendant’s defense during trial was that the shooting was an
             accident.




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14.    Defendant admitted that ‘the gun went off in [his] hand” and
       the “victim was laying down on the ground.”

15.    On April 24, 2002, Defendant endorsed Darrell Fields’[s]
       statement and testimony that the offense was an accident.

16.    On April 24, 2002, Defendant admitted as follows:

             The crime I have committed was honestly and
             truly an unintentional accident. I have also
             expressed my shame and co[n]dolences to the
             vict[i]m[’]s mother, in a conference arranged by
             the Victim’s Services. I am not a dangerous or
             threatening individual, nor am I claiming total
             innocence for my crime. Only that a fair sentence
             should be given consideration.

17.    Defendant admitted to shooting the victim, Paul Douglas.

....

Evidence Exists

22.    Evidence exists that might contain biological material in a
       condition making DNA testing possible.

23.    The evidence available includes blood, hair, and clothing of
       the victim and evidence from trial.

Identity

24.    Defendant admitted in a statement to the Fort Worth Police
       Department that he shot the victim but claimed it was an
       accident.

25.    Defendant admitted to his common-law wife that he shot the
       victim during a struggle.

26.    Defendant admitted in 2002 that the offense was an accident.

27.    Accident is not an issue of identity.

28.    Darrell Fields witnessed Defendant shoot the victim.

29.    Defendant’s admissions are corroborated by Darrell Fields’[s]
       eyewitness testimony.


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      30.    The totality of the evidence demonstrates that identity was not
             or is not at issue.

(some citations omitted).

      On January 11, 2016, Appellant filed “Movant’s Objection/Rebuttal and

Request for Reconsideration,” in which Appellant objected to the State’s

proposed findings of fact and conclusions of law, reurged his assertions that the

prosecutor had forged or falsified documents, and requested that the trial court

reconsider its ruling because identity was an issue at trial. The trial court did not

rule on this motion.

                                    Discussion

      Appellant brings four issues on appeal, all of which are premised on his

argument that the State has misrepresented, fabricated, or forged facts in this

case that were relied upon by the trial court in denying his motion for DNA

testing.2 Because his issues are interrelated, we will address them together.


      2
       Appellant’s issues were presented as follows:

      [Issue 1:] Trial court never resolved or Trial court never resolved or
      considered Phillips pro se objection rebuttal that brought attention to
      disagreements of State’s brief presentations of documented
      facts/records in this case (0557784D).

      [Issue 2:] Trial court abused its discretion by improperly refusing to
      act consider or correct those issues brought under Texas Codes §
      37.09 37.10 in Phillips evidentiary request, objection/rebuttal.

      [Issue 3:] Trial court improperly denied Phillips subsequent post-
      conviction forensic DNA request of evidence in State’s
      possession . . . within requirements of Chapter 64, that has never
      been subjected to DNA testing.


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      When, as here, the trial court denies a motion for postconviction DNA

testing without conducting a hearing, we review the ruling de novo. See Smith v.

State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005).

      A trial court may order forensic DNA testing only if statutory preconditions

are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002); see Tex.

Code Crim. Proc. Ann. art. 64.03 (West Supp. 2016). Article 64.03 requires

(1) that the trial court find “identity was or is an issue in the case” and (2) that the

convicted person establish by a preponderance of the evidence that he would not

have been convicted if exculpatory results had been obtained through DNA

testing.   Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(C), (a)(2)(A). When a

convicted person has “made a confession or similar admission in the case,” the

convicting court is “prohibited from finding that identity was not an issue in the

case solely on the basis of that . . . confession, or admission, as applicable.” Id.

art. 64.03(b). A defendant who requests DNA testing can make identity an issue

by showing that exculpatory DNA tests would prove his innocence.                   See

Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007).

      Indeed, we have already held that identity was not an issue in this case.

Phillips, 2011 WL 4415494, at *2. Appellant’s defense at trial was to claim that

the shooting was an accident. Id. And, as we noted, “[i]n addition to [Appellant]’s

      [Issue 4:] Order for evidentiary hearing to correct any and all
      unsupported records/facts existing in this case, and location and
      production of any missing, concealed or excluded exculpatory
      material evidence favorable to opposing party(s).


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admissions to police and to his common law wife that he shot Douglas, Fields

also testified that he witnessed [Appellant] shoot Douglas.” Id. We further held

that the trial court properly considered Appellant’s admissions, in addition to

other corroborating evidence, in finding that identity was not an issue in this case.

Id. Under the law of the case doctrine, we are bound by that determination.

State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014) (“[W]hen the

facts and legal issues are virtually identical, they should be controlled by an

appellate court’s previous resolution.”), cert. denied, 2016 WL 2839840 (Oct. 3,

2016).

      Appellant attempts to refute our previous holding by alleging that the State

has fabricated or tampered with evidence.          Appellant has no evidence or

reasonable explanation for these bare assertions, and his assertions that Fields’

and Sheperd’s statements were not in the trial court record are simply incorrect.

Fields’ statements were relied upon by this court when it upheld the conviction.

Phillips, No. 02-95-00136-CR, Slip. Op. 1–2. Appellant also alleges that his 1994

written statement to the police was forged, falsified, or fabricated. That written

statement was also part of the trial record. Id.

      Appellant has forfeited these complaints by not raising them in his original

appeal3 or in his appeal of the denial of his first motion for DNA testing. Id.;


      3
       The sole issue in the appeal of his conviction was whether the trial court
had allowed the State to make an improper jury argument. Phillips, No. 02-95-
00136-CR, Slip. Op. 1–2.


                                         7
Phillips, 2011 WL 4415494 at *1–2.         By waiting more than 20 years to make

these allegations regarding the trial record, Appellant has failed to preserve his

allegations that the State has fabricated witness testimony and his confession to

police. See Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674

(Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016).

      Appellant further alleges that the State fabricated a letter that was included

in the State’s response to his first and third4 motions for DNA testing and that

was purportedly sent by Appellant to the Tarrant County District Attorney’s office

in April 2002. In the letter, Appellant confessed his guilt in an attempt to have his

sentence shortened. Again, Appellant did not raise this issue in the appeal of the

denial of his first motion for DNA testing and has arguably forfeited such

complaint. But even if we were to disregard the 2002 letter, there is sufficient

evidence in the record that identity was not at issue during the trial, and the letter

was not relied upon by this Court in our affirmation of the trial court’s previous

denial of Appellant’s request. Phillips, 2011 WL 4415494 at *1–2.

      Because identity was and is not an issue, and because he has forfeited his

complaints that the State fabricated evidence used in the original trial, we

overrule Appellant’s first three issues.

      Finally, contrary to Appellant’s assertions, the trial court was not required

to hold a hearing to address Appellant’s motion or his complaints regarding the

      It is unclear whether the letter was attached to the State’s response to his
      4

second motion.


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State’s evidence. See Rivera v. State, 89 S.W.3d 55, 58–59 (Tex. Crim. App.

2002) (“Nothing in Article 64.03 requires a hearing of any sort concerning the trial

court’s determination of whether a defendant is entitled to DNA testing.”).       We

therefore overrule his fourth issue.

                                       Conclusion

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



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2016




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