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 We affirmed Moss’s conviction in an unpublished opinion.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 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
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[CRPM]
sti 1994, no pet.). However, an action which generally does not rise to the level of resisting arrest can constitute sufficient force in certain situations. See Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.—El Paso 1982, pet. ref’d). Courts have made the distinction between actions which endanger an officer (i.e. striking an arresting officer’s arm) and those actions in which there is no danger of injury to the officer (i.e. pulling arm away from officer). See id. For example, this Court has held that pulling one’s arm in an attempt to shake off an officer’s grip can constitute force when an officer is endangered. Bryant v. State, 923 S.W.2d 199, 206 (Tex. App.—Waco 1996, pet. denied). Similarly, although courts have held that non-cooperation alone is not sufficient to establish resisting arrest, we have held that physical resistance in addition to threats of imminent bodily harm (i.e. producing a gun and saying “get back”) establishes use of force against an officer. Campbell v. State, 128 S.W.3d 662, 671 (Tex. App.—Waco 2003, no pet.).
The activity of releasing a vicious dog to attack an officer goes beyond simply pulling one’s arm away or threatening an officer. This action endangered the officer and was sufficient to qualify as “use of force” within the meaning of the statute. We conclude that, when viewed in the light most favorable to the verdict, the evidence is sufficient to support a conviction for resisting arrest. We overrule the issue.
Conclusion
Having overruled Gary’s sole issue, we affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 24, 2006
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