IN THE TENTH COURT OF APPEALS
No. 10-09-00409-CR
VAUGHN BIRDWELL, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 1995-324-C
MEMORANDUM OPINION
Raising five issues, Vaughn Birdwell appeals the trial court’s denial of his
successive (his fourth) motion for forensic DNA testing, which was filed on October 6,
2009.1 We affirmed the trial court’s denial of his third motion for forensic DNA testing
in Birdwell v. State, 276 S.W.3d 642 (Tex. App.—Waco 2008, pet. ref’d).
Birdwell’s first issue complains that the trial court erred because it denied his
motion pursuant to article 64.01 only. Birdwell’s successive (fourth) motion is entitled:
1The law in effect on that date governs this fourth motion. See Act of May 20, 2011, 82nd Leg., R.S., ch. 366, §§ 4-5, 2011 Tex. Sess. Law Serv. 1015, 1016 (West). “SUCCESSIVE MOTION TO CONDUCT FORENSIC DNA TESTING UNDER
CHAPTER 64, ARTICLES 64.01 – 64.05, TEXAS CODE OF CRIMINAL PROCEDURE.”2
The trial court’s order, which summarily denied the motion before the State filed a
response, provides in pertinent part:
Came on to be considered on December 3, 2009, that certain document designated by the defendant as follows:
Successive Pro Se Motion to Conduct Forensic DNA Testing Pursuant to Article 64.01 of The Texas Code of Criminal Procedure,
and after review of same, the Court is of the opinion that the same should be, and is in all respects DENIED.
We disagree with Birdwell’s conclusion that the trial court denied his motion
pursuant to article 64.01 only. The trial court’s order merely attempts to paraphrase the
title of Birdwell’s motion; it does not purport to deny the motion under article 64.01
alone. Issue one is overruled.
We proceed to Birdwell’s third issue, which generally argues that the trial court
erred in denying his motion under article 64.03. We also address Birdwell’s
introductory argument that the 2007 amendment to article 64.03(b) prohibits a finding
that identity was not an issue in the case. The evidence from Birdwell’s murder trial is
detailed in our 2008 opinion, and we held:
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. … The trial court found that identity “was not, never was and is not now an issue.”
2Birdwell’s entire brief and all of his documents filed with the trial court, while typewritten, are typed in “all caps” (all capital letters), which is difficult to read and which we discourage.
Birdwell v. State Page 2 We agree with the State and the trial court that Birdwell’s identity as the person who stabbed and killed Irene is not and was not an issue in the case.
…
The purpose of DNA testing under article 64.03 is to provide an avenue by which a defendant may seek to establish his innocence by excluding himself as the perpetrator of the offense. See Blacklock v. State, 235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007). Birdwell asserted self- defense against the “third person” in Irene’s house, and the jury was charged on but rejected that theory in finding Birdwell guilty. The contested issue in his trial was not who stabbed and killed Irene, but why Birdwell stabbed her. Birdwell judicially admitted that he stabbed her. Identity was not and is not an issue, and the trial court did not err in so finding. See Lyon v. State, --- S.W.3d ---, --- & n.1, 2008 WL 4587242, at *2 & n.1 (Tex. App.—San Antonio Oct. 15, 2008, no pet. h.) (identity was not at issue where defendant had admitted he stabbed his wife in self-defense, and postconviction DNA testing is not for establishing a defense); Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d) (perpetrator’s identity not at issue where defendant admitted to shooting victim in self-defense); In re State ex rel. Villalobos, 218 S.W.3d 837, 840- 41 (Tex. App.—Corpus Christi 2007, orig. proceeding) (identity was not at issue where defendant convicted of murder sought DNA testing to prove self-defense); Roughly v. State, 2003 WL 22450442, at *1 (Tex. App.—Dallas Oct. 29, 2003, pet. ref’d) (not designated for publication) (perpetrator’s identity not at issue where defendant admitted to stabbing victim and throwing him off balcony in self-defense). We overrule Birdwell’s third issue to the extent it asserts identity is or was at issue.
Birdwell, 276 S.W.3d at 644-46.
Birdwell emphasizes the propriety of his successive (fourth) motion because
article 64.03(b) was amended after the filing of his third motion, which was filed on July
12, 2006. Article 64.03(b) was amended in 2007 to provide:
(b) 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 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.
Birdwell v. State Page 3 TEX. CODE CRIM. PROC. ANN. art. 64.03(b) (West Supp. 2011) (emphasis added).
Amended article 64.03(b) became effective September 1, 2007, did not apply to
Birdwell’s third motion, and thus was not at issue in our 2008 opinion. Act of May 24,
2007, 80th Leg., R.S., ch. 1006, §§ 5(b), 6, 2007 Tex. Gen. Laws 3523, 3525.
Birdwell argues that, under amended article 64.03(b), his admissions at his trial
that he stabbed the victim preclude a denial of DNA testing on the ground that identity
was not an issue in the case. But the State points out, and we agree, that amended
article 64.03(b) prohibits a finding that identity was not an issue in the case solely on the
basis of that admission. Our 2008 opinion did focus on Birdwell’s admissions that he
stabbed the victim, but it also discussed the following evidence supporting a finding
that identity was not an issue in the case: (1) the victim’s 9-1-1 call that Birdwell was
beating on her doors and windows; (2) the victim’s phone conversation with police
dispatch that Birdwell had broken into her house and that she was cut; and (3) the
police officer’s testimony that when he entered the house, he encountered Birdwell
(“bloody knife in hand and covered in blood, talking on the phone with 9-1-1”) and
found the victim dying of multiple stab wounds. Birdwell, 276 S.W.3d at 644-45.
Because identity was not an issue in the case solely on the basis of Birdwell’s
admissions, but also because of this other evidence, the trial court did not err in denying
Birdwell’s motion. We overrule issue three.
Birdwell’s second issue complains that the trial court and the State failed to
follow article 64.02’s procedural steps. See TEX. CODE CRIM. PROC. ANN. art. 64.02 (West
Birdwell v. State Page 4 Supp. 2011). Because, as we have held above, Birdwell is not entitled to DNA testing
under article 64.03, the failure to follow article 64.02’s procedural steps is harmless. The
failure to follow article 64.02 is also harmless because that failure does not entitle
Birdwell to DNA testing. Issue two is overruled.
Issue four complains of the trial court’s denial of Birdwell’s motion requesting
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IN THE TENTH COURT OF APPEALS
No. 10-09-00409-CR
VAUGHN BIRDWELL, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 1995-324-C
MEMORANDUM OPINION
Raising five issues, Vaughn Birdwell appeals the trial court’s denial of his
successive (his fourth) motion for forensic DNA testing, which was filed on October 6,
2009.1 We affirmed the trial court’s denial of his third motion for forensic DNA testing
in Birdwell v. State, 276 S.W.3d 642 (Tex. App.—Waco 2008, pet. ref’d).
Birdwell’s first issue complains that the trial court erred because it denied his
motion pursuant to article 64.01 only. Birdwell’s successive (fourth) motion is entitled:
1The law in effect on that date governs this fourth motion. See Act of May 20, 2011, 82nd Leg., R.S., ch. 366, §§ 4-5, 2011 Tex. Sess. Law Serv. 1015, 1016 (West). “SUCCESSIVE MOTION TO CONDUCT FORENSIC DNA TESTING UNDER
CHAPTER 64, ARTICLES 64.01 – 64.05, TEXAS CODE OF CRIMINAL PROCEDURE.”2
The trial court’s order, which summarily denied the motion before the State filed a
response, provides in pertinent part:
Came on to be considered on December 3, 2009, that certain document designated by the defendant as follows:
Successive Pro Se Motion to Conduct Forensic DNA Testing Pursuant to Article 64.01 of The Texas Code of Criminal Procedure,
and after review of same, the Court is of the opinion that the same should be, and is in all respects DENIED.
We disagree with Birdwell’s conclusion that the trial court denied his motion
pursuant to article 64.01 only. The trial court’s order merely attempts to paraphrase the
title of Birdwell’s motion; it does not purport to deny the motion under article 64.01
alone. Issue one is overruled.
We proceed to Birdwell’s third issue, which generally argues that the trial court
erred in denying his motion under article 64.03. We also address Birdwell’s
introductory argument that the 2007 amendment to article 64.03(b) prohibits a finding
that identity was not an issue in the case. The evidence from Birdwell’s murder trial is
detailed in our 2008 opinion, and we held:
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. … The trial court found that identity “was not, never was and is not now an issue.”
2Birdwell’s entire brief and all of his documents filed with the trial court, while typewritten, are typed in “all caps” (all capital letters), which is difficult to read and which we discourage.
Birdwell v. State Page 2 We agree with the State and the trial court that Birdwell’s identity as the person who stabbed and killed Irene is not and was not an issue in the case.
…
The purpose of DNA testing under article 64.03 is to provide an avenue by which a defendant may seek to establish his innocence by excluding himself as the perpetrator of the offense. See Blacklock v. State, 235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007). Birdwell asserted self- defense against the “third person” in Irene’s house, and the jury was charged on but rejected that theory in finding Birdwell guilty. The contested issue in his trial was not who stabbed and killed Irene, but why Birdwell stabbed her. Birdwell judicially admitted that he stabbed her. Identity was not and is not an issue, and the trial court did not err in so finding. See Lyon v. State, --- S.W.3d ---, --- & n.1, 2008 WL 4587242, at *2 & n.1 (Tex. App.—San Antonio Oct. 15, 2008, no pet. h.) (identity was not at issue where defendant had admitted he stabbed his wife in self-defense, and postconviction DNA testing is not for establishing a defense); Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007, pet. ref’d) (perpetrator’s identity not at issue where defendant admitted to shooting victim in self-defense); In re State ex rel. Villalobos, 218 S.W.3d 837, 840- 41 (Tex. App.—Corpus Christi 2007, orig. proceeding) (identity was not at issue where defendant convicted of murder sought DNA testing to prove self-defense); Roughly v. State, 2003 WL 22450442, at *1 (Tex. App.—Dallas Oct. 29, 2003, pet. ref’d) (not designated for publication) (perpetrator’s identity not at issue where defendant admitted to stabbing victim and throwing him off balcony in self-defense). We overrule Birdwell’s third issue to the extent it asserts identity is or was at issue.
Birdwell, 276 S.W.3d at 644-46.
Birdwell emphasizes the propriety of his successive (fourth) motion because
article 64.03(b) was amended after the filing of his third motion, which was filed on July
12, 2006. Article 64.03(b) was amended in 2007 to provide:
(b) 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 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.
Birdwell v. State Page 3 TEX. CODE CRIM. PROC. ANN. art. 64.03(b) (West Supp. 2011) (emphasis added).
Amended article 64.03(b) became effective September 1, 2007, did not apply to
Birdwell’s third motion, and thus was not at issue in our 2008 opinion. Act of May 24,
2007, 80th Leg., R.S., ch. 1006, §§ 5(b), 6, 2007 Tex. Gen. Laws 3523, 3525.
Birdwell argues that, under amended article 64.03(b), his admissions at his trial
that he stabbed the victim preclude a denial of DNA testing on the ground that identity
was not an issue in the case. But the State points out, and we agree, that amended
article 64.03(b) prohibits a finding that identity was not an issue in the case solely on the
basis of that admission. Our 2008 opinion did focus on Birdwell’s admissions that he
stabbed the victim, but it also discussed the following evidence supporting a finding
that identity was not an issue in the case: (1) the victim’s 9-1-1 call that Birdwell was
beating on her doors and windows; (2) the victim’s phone conversation with police
dispatch that Birdwell had broken into her house and that she was cut; and (3) the
police officer’s testimony that when he entered the house, he encountered Birdwell
(“bloody knife in hand and covered in blood, talking on the phone with 9-1-1”) and
found the victim dying of multiple stab wounds. Birdwell, 276 S.W.3d at 644-45.
Because identity was not an issue in the case solely on the basis of Birdwell’s
admissions, but also because of this other evidence, the trial court did not err in denying
Birdwell’s motion. We overrule issue three.
Birdwell’s second issue complains that the trial court and the State failed to
follow article 64.02’s procedural steps. See TEX. CODE CRIM. PROC. ANN. art. 64.02 (West
Birdwell v. State Page 4 Supp. 2011). Because, as we have held above, Birdwell is not entitled to DNA testing
under article 64.03, the failure to follow article 64.02’s procedural steps is harmless. The
failure to follow article 64.02 is also harmless because that failure does not entitle
Birdwell to DNA testing. Issue two is overruled.
Issue four complains of the trial court’s denial of Birdwell’s motion requesting
the trial court to take judicial notice of facts in the trial record that would establish by a
preponderance of the evidence that Birdwell would not have been convicted if
exculpatory results had been obtained through DNA testing. See id. art. 64.03(a)(2)(A).
Any error in the trial court’s refusal to take judicial notice is harmless because, as we
have held above, Birdwell is not entitled to DNA testing under article 64.03. Issue four
is overruled.
Issue five complains of the trial court’s refusal to make findings of fact and
conclusions of law in support of its denial of Birdwell’s motion.3 Article 64.03 requires
findings only if the trial court orders forensic DNA testing. See id. art. 64.03(a)(1). The
trial court did not err in denying Birdwell’s request for findings and conclusions. Issue
five is overruled.
Having overruled all of Birdwell’s issues, we affirm the trial court’s order
denying his successive motion for forensic DNA testing.
REX D. DAVIS Justice
3 The trial court made findings and conclusions on Birdwell’s third motion.
Birdwell v. State Page 5 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed December 28, 2011 Do not publish [CRPM]
Birdwell v. State Page 6