                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00560-CR


DARRELL WYANE PHILLIPS A/K/A                                          APPELLANT
DARRELL WAYNE PHILLIPS

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

                                 I. INTRODUCTION

      In a single point, Appellant Darrell Wyane Phillips a/k/a Darrell Wayne

Phillips appeals the denial of his post-conviction request for forensic DNA testing.

We will affirm.




      1
       See Tex. R. App. P. 47.4.
                       II. FACTUAL AND PROCEDURAL BACKGROUND

      On March 30, 1995, a jury convicted Phillips of involuntary manslaughter

and found that he had used a deadly weapon, to-wit: a firearm. Phillips pleaded

true to the enhancement and habitual offender counts, and the jury assessed his

punishment at sixty-seven years’ imprisonment. The trial court sentenced him

accordingly.   Phillips appealed, and this court affirmed his conviction.       See

Phillips v. State, No. 02-95-00136-CR, slip op. at 6 (Tex. App.—Fort Worth Sept.

26, 1996, no pet.) (not designated for publication). In our opinion, we set forth

the following facts:

            Paul Douglas was in [Phillips]’s car when [Phillips] gave
      witness Darrell Fields a ride. [Phillips] was arguing with Douglas
      over a money debt owed to [Phillips]. Fields testified that [Phillips]
      pointed a gun at Douglas and said, ―[D]o you think I won’t shoot
      you?‖ The gun discharged, killing Douglas. [Phillips] 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. at 1–2.

      On August 7, 2007, Phillips filed a motion for appointment of counsel for

DNA testing. An attorney was appointed to represent him, and Phillips filed his

request for DNA testing on October 8, 2010. The State filed a response and

proposed findings of fact and conclusions of law.        On November 23, 2010,

without a hearing, the trial court adopted the State’s proposed findings and

conclusions and denied Phillips’s request for DNA testing. In addition to the facts

set forth in our opinion and quoted above, the findings of fact state that Phillips’s



                                         2
defense at trial was that the shooting was an accident and that Phillips’s

common-law wife, Regina Sheperd, testified that Phillips had admitted to her that

he shot Douglas during a struggle. The trial court further found that evidence

existed that might contain biological material, including blood, hair, and clothing

of the victim, and the bullet from the victim’s body. Regarding identity, the trial

court’s findings and conclusions state:

      16.   Defendant has alleged that DNA Testing ―could establish [his]
            innocence.‖

      17.   Defendant does not allege that he is innocent.

      18.   Defendant does not allege that identity is or was at issue in
            this case.

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

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

      21.    Accident is not an issue of identity.

      22.   Darrell Fields witnessed Defendant shoot the victim.

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

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

            ....

      5.    Based on the totality of the evidence, including Defendant’s
            admissions, Defendant has failed to demonstrate that identity
            was or is an issue in this case.



                                          3
      6.      This Court is not making a finding that identity was not at issue
              based solely on Defendant’s plea, confession, and
              admissions. [Internal citations omitted.]

                       III. DNA TESTING UNDER CHAPTER 64

      The trial court may order 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. 2010).2 When, as here, the trial court

denies a motion for post-conviction 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 is required to order DNA testing only if the requirements of

Texas Code of Criminal Procedure article 64.03 are met, including the

requirements (1) that the trial court find that ―identity was or is an issue in the

case‖ and (2) that the convicted person established 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)(B),

(a)(2). Article 64.03(b) further provides that

           [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

      2
        The applicable version of the statute is the current one—which was in
effect when Phillips filed his request for DNA testing in 2010—not the one in
effect when Phillips filed his motion for appointment of counsel for DNA testing.
See Act of May 22, 2007, 80th Leg., ch. 1006, § 5 (providing that amendments
apply to motions for forensic DNA testing filed on or after the September 1, 2007
effective date of the amendments).


                                          4
      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.

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).

              IV. NO ERROR IN DENIAL OF MOTION FOR DNA TESTING

      Here, Phillips’s defense at trial was that the shooting was an accident. In

addition to Phillips’s admissions to police and to his common law wife that he

shot Douglas, Fields also testified that he witnessed Phillips shoot Douglas. The

trial court properly considered Phillips’s admissions, as well as other

corroborating evidence, in finding that identity was not at issue in this case. See

Tex. Code Crim. Proc. Ann. art. 64.03(b) (prohibiting a finding that identity was

not an issue in the case solely on the basis of defendant’s admission); Hood v.

State, 158 S.W.3d 480, 482–83 (Tex. Crim. App.) (rejecting appellant’s argument

that the trial court erred by finding that DNA results would not be exculpatory

because the evidence at trial conclusively established appellant’s guilt), cert.

denied, 545 U.S. 1146 (2005).

      Phillips has alleged only that testing of biological material not previously

tested ―could establish [his] innocence.‖ He has failed to show that exculpatory

DNA tests would prove his innocence or that identity was at issue. See Tex.

Code Crim. Proc. Ann. art. 64.03(a)(1)(B); Blacklock, 235 S.W.3d at 233.

Consequently, we overrule his sole point.


                                         5
                             V. CONCLUSION

      Having overruled Phillips’s sole point, we affirm the trial court’s

order denying DNA testing.


                                             PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: September 22, 2011




                                    6
