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
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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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
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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.
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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).
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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.
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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
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