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-

 

1See Tex. R. App. P. 47.4.
2

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 
3

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. 
4

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. 
5

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. 

 

2Appellant’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 postconviction forensic DNA request of evidence in State’s 

possession . . . within requirements of Chapter 64, that has never 

been subjected to DNA testing.
6

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).
7

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.; 

 

3The 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. 
8

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 

 

4

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

second motion.
9

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