Phillip Ford v. State ( 2017 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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PHILLIP FORD, No. 08-14-00211-CR
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Appellant, Appeal from the
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V. 292nd District Court
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THE STATE OF TEXAS, of Dallas County, Texas
Appellee. § (TC# F09-56554)
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OPINION
Phillip Ford appeals from an order denying his motion for DNA testing. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2011, a jury convicted Appellant of aggravated assault with a deadly weapon. The trial
court found both enhancement paragraphs true and assessed his punishment at imprisonment for
twenty-five years. The Dallas Court of Appeals affirmed his conviction. See Ford v. State, No.
05-11-00530-CR, 2012 WL 3104380 (Tex.App.--Dallas July 11, 2012, no pet.)(not designated for
publication). On August 19, 2013, Appellant filed a motion for DNA testing of the sword used in
the commission of the offense. Appellant’s motion is supported only by his own affidavit. The
State filed its response which relied on the Fifth Court of Appeals’ opinion and approximately
forty-eight pages of the reporter’s record from the trial. The following facts are taken from the
opinion and the excerpts from the reporter’s record.
The complainant, Kenneth Stevenson, and Appellant were next-door neighbors, and
Stevenson described their relationship as “acquaintances” rather than friends. Ford, 2012 WL
3104380, at *1. Stevenson knew Appellant as someone who would “fix cars . . . in the
neighborhood” and Appellant had put brakes on Stevenson’s truck. Ford, 2012 WL 3104380, at
*1. The relationship changed after Stevenson began to believe Appellant had stolen something
from him, and he decided that he no longer wanted to associate with Appellant. On July 4, 2009,
Stevenson was moving his truck from a sunny location and parking it in the shade in front of his
house when someone dropped off Appellant. Stevenson exited his truck and the two exchanged
greetings. Appellant initially went to his house and unlocked the front door, but he became angry
and approached Stevenson. Stevenson did not want to argue with Appellant, so he told him that
his mind was made up and he did not want to have anything to do with him. In an attempt to avoid
further confrontation, Stevenson walked away from Appellant and began watering some flowers.
Appellant came onto Stevenson’s property, but Stevenson told him that he did not want any trouble
and to leave. When Appellant continued to argue, Stevenson told him to leave him alone and get
off his property. Appellant refused to leave and Stevenson shoved Appellant back towards his
own house. Appellant started swinging his fists at Stevenson and he then reached into his pants
and pulled out a sword. Appellant began trying to cut Stevenson with the sword, so Stevenson
started fighting back to defend himself. During the altercation, Appellant cut Stevenson’s thigh
and buttocks with the sword. Stevenson struck Appellant in the face and was able to pin him onto
the ground. Stevenson’s daughter came outside and hit Appellant with a two-by-four, and she was
eventually able to take the sword away from Appellant and put it on the porch. Ford, 2012 WL
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3104380, at * 1. After Appellant was disarmed, Stevenson let Appellant get up, and Appellant ran
to a neighbor’s house where he asked them to call the police because Stevenson and his daughter
had assaulted him. Id. The neighbor retrieved her phone for Appellant, but the police and
ambulance had already arrived by this time. Id. The police arrested Appellant for aggravated
assault with a deadly weapon. Id.DENIAL OF POST-CONVICTION DNA TESTING
In his sole issue, Appellant contends that the trial court abused its discretion by denying
the motion for DNA testing on the ground that Appellant failed to show that identity was and is an
issue in the case.
Applicable Law and Standard of Review
To be entitled to DNA testing under Chapter 64, a convicted person must meet several
requirements. See TEX.CODE CRIM.PROC.ANN. arts. 64.01, 64.03 (West Supp. 2017). The
convicted person must submit to the convicting court a motion for forensic DNA testing of
evidence that has a reasonable likelihood of containing biological material. TEX.CODE
CRIM.PROC.ANN. art. 64.01(a-1)(West Supp. 2017). The motion must be accompanied by an
affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.
Id.The convicting court may order DNA testing only if the court finds that: (1) the evidence
still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected
to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or
altered in any material respect; (3) there is a reasonable likelihood that the evidence contains
biological material suitable for DNA testing; (4) identity was or is an issue in the case; (5) the
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convicted person establishes by a preponderance of the evidence that he would not have been
convicted if exculpatory results had been obtained through DNA testing; and (6) the request for
the proposed DNA testing is not made to unreasonably delay the execution of sentence or
administration of justice. TEX.CODE CRIM.PROC.ANN. art. 64.03(a)(West Supp. 2017). The
person requesting DNA testing bears the burden of proof on these issues and he must provide
statements of fact in the affidavit to support his claims. See Dinkins v. State, 84 S.W.3d 639, 642
(Tex.Crim.App. 2002). General or conclusory statements will not satisfy this burden. See
Swearingen v. State, 303 S.W.3d 728, 733 (Tex.Crim.App. 2010).
We review the trial court’s ruling on a Chapter 64 issue under a bifurcated standard of
review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). We afford the trial court almost
total deference in the determination of historical facts and in the application of law to those facts
when they turn on credibility and demeanor. Id. All other application-of-law-to-fact questions are
reviewed de novo. Id.Motion for DNA Testing and Order Denying
Appellant’s motion for DNA testing generally alleged that: (1) there was evidence
containing biological material secured in connection with his case;1 (2) it was in the possession of
the State during the trial; (3) the evidence was not subjected to DNA testing; (4) there is a
substantial likelihood that DNA testing of the biological material would show that Appellant is not
guilty of the aggravated assault charge; (5) identity was and is an issue in the case; and (6) there is
a reasonably probability that Appellant would not have been convicted if exculpatory results were
1
Appellant’s motion did not identify the sword as the item of evidence he sought to have tested.
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obtained through DNA testing. Appellant’s affidavit offered in support of his motion mirrors the
general allegations set forth in his motion. It states, in pertinent part, as follows:
I am Phillip Ford. On March 30, 2011, I was convicted of the offense of aggravated
assault and on April 15, 2011 I was sentenced to twenty-five years in the
penitentiary in this case.
I state that the following is true and correct:
1. To the best of my knowledge, there was evidence obtained in relation to these
cases that consisted of biological material. This evidence was in the possession of
the State.
2. The evidence, to the best of my knowledge, was not subjected to DNA testing.
The testing not being done was through no fault of my own.
3. The ultimate question in this case was whether I, Phillip Ford, committed the
offense of aggravated assault as alleged in Cause Number F09-56554-V. There is
a reasonable probability that it would show that I did not commit this offense if
testing was performed on the biological material.
4. I make this request in the interest of justice and not to unreasonably delay the
execution of sentence or administration of justice.
The trial court concluded in its order that Appellant failed to meet his burden of proof under
Chapter 64 of the Code of Criminal Procedure. The court specifically found that (1) identity is
not and was not an issue in the case; (2) SWIFS2 was never in possession of any evidence that
could have been subjected to DNA testing that would have in any way proven that Appellant did
or did not commit the charged offense; (3) there is currently no evidence which can be subjected
to DNA testing; and (4) testing of the sword would not in any way prove that Appellant did or did
not commit the offense because Appellant claimed on appeal that he had acted in self-defense.
No Reasonable Likelihood Evidence Contained Biological Material
2
SWIFS stands for Southwestern Institute of Forensic Sciences.
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To be entitled to DNA testing, Appellant was required to submit a motion and supporting
affidavit to the convicting court for forensic DNA testing of evidence that has a reasonable
likelihood of containing biological material. See TEX.CODE CRIM.PROC.ANN. art. 64.01(a-1).
Appellant’s motion did not specify that he sought to have the sword tested or the nature of the
biological material, but the trial court appeared to understand that the sword was the sole focus of
Appellant’s request for DNA testing. Assuming for the sake of argument that Appellant requested
that the sword be tested for DNA deposited by the touch of the perpetrator, he did not offer any
scientific proof that DNA would necessarily have been deposited on the sword by the person who
held it. See Swearingen, 303 S.W.3d at 732-33 (capital defendant failed to prove he was entitled
to forensic DNA testing of ligature and articles of clothing, even though testimony supported the
fact that the perpetrator touched the items sought to be tested, where defendant made only a general
claim that biological material could be found from that touching, and no expert testimony or
scientific data was presented to support the conclusion that DNA would necessarily be deposited).
Because Appellant failed to carry his burden of proving that there is a reasonable likelihood that
the evidence contains biological material suitable for DNA testing, the trial court did not err by
denying Appellant’s motion for DNA testing.
Identity is Not an Issue
We turn now to Appellant’s primary argument. Appellant challenges the trial court’s
conclusion that identity is not and was not an issue in the case by focusing on the evidence
presented by the State in its response. Review of this issue must begin with the sufficiency of
Appellant’s motion and affidavit because he had the burden of proof. While Appellant’s motion
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makes a conclusory statement that “[i]dentity was and is an issue in this case,” his affidavit does
not set forth any facts in support of this statement. Because Appellant made only conclusory
statements and failed to provide facts in support of his motion, he did not show that identity either
was or is an issue in the case. See Swearingen, 303 S.W.3d at 733; Dinkins, 84 S.W.3d at 642.
Examination of the evidence submitted by the State with its response also shows that identity was
not an issue at trial or on appeal. Multiple witnesses, including a witness called by Appellant,
identified him as the person involved in the fight with the complainant Stevenson. The
complainant Stevenson identified Appellant at trial as the person who assaulted him with the
sword. Appellant called another neighbor, Curtis Clay, as a witness. Clay testified that when he
came out of his house, he saw Appellant defending himself against two people who were striking
him with two-by-fours. The evidence also showed that Appellant was present at the scene when
the ambulance and police arrived, and he was arrested for aggravated assault after admitting to a
police officer that he had been involved in the altercation with Stevenson. Appellant also told the
officer that he was the person who had used the sword. During cross-examination of the
complainant, Appellant established the basis for the animus between the complainant and
Appellant, namely, that the complainant had accused Appellant of being a thief, and he further
showed that the complainant struck Appellant first and beat him with his fists before Appellant
pulled out the sword. Thus, there was never any issue at trial that it was Appellant who was
involved in the altercation with Stevenson. The only issue was whether Stevenson was the first
aggressor. On appeal, Appellant challenged the sufficiency of the evidence supporting his
conviction by arguing that the evidence showed he had struck Stevenson with the sword in self-
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defense. Ford, 2012 WL 3104380, at *1-2. The Dallas Court of Appeals rejected this argument
and found the evidence sufficient to support Appellant’s conviction. Id., 2012 WL 3104380, at
*2-3.
Citing Blacklock v. State, 235 S.W.3d 231 (Tex.Crim.App. 2007), Appellant argues that
the trial testimony identifying him as the assailant does not preclude him from asserting that
identity is an issue in the case. In Blacklock, the defendant was convicted of aggravated robbery
and aggravated sexual assault. Blacklock, 235 S.W.3d at 232. The victim knew the defendant and
identified him at trial as the person who robbed and sexually assaulted her. Id. The State presented
evidence at trial showing that DNA testing of semen from the victim’s vaginal smears was
inconclusive on the issue of identity. Id. Blacklock filed a motion for DNA testing of the
previously-tested semen from the victim’s vaginal smears and of semen left on the victim’s
clothing. Id. Both the convicting court and the court of appeals concluded that identity was not
an issue because the victim knew the defendant and identified him as her attacker. Id. The Court
of Criminal Appeals reversed. It held that the motion for DNA testing and evidence presented
showed that the victim’s lone attacker is the donor of the material for which the defendant sought
DNA testing, and therefore, exculpatory DNA test results which excluded the defendant as the
donor of this material, would establish his innocence. Id. Further, the Court held that the victim’s
identification of the defendant as her attacker is irrelevant to the question whether the DNA motion
made his identity an issue and whether it shows that exculpatory DNA tests would prove his
innocence. Id.Appellant also relies on Esparza v. State, 282 S.W.3d 913 (Tex.Crim.App. 2009). In
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Esparza, Guadalupe Rios, and her aunt, Hermina Cantu Lucero, traveled from Bryan, Texas, to a
club in Houston one evening. Esparza, 282 S.W.3d at 914-15. Lucero spent the evening drinking
and dancing with the defendant. Id. at 914. When the women got ready to leave late that evening,
they discovered that Rios’ car had been towed, and they accepted the defendant’s offer to give
them a ride to the impound lot. Id. at 915. The defendant assaulted both women, but Lucero
managed to run away. Id. at 915. The defendant sexually assaulted Rios and eventually dropped
her off at a corner somewhere in Houston. Id. at 915-16. Rios found a convenience store and
called the police. Id. at 916. She was taken to a hospital and later reunited with Lucero who had
also called the police. Id. At the hospital, a sexual assault exam was performed and the nurse
collected biological samples from Rios’ vagina and fingernails. Id. Rios could not identify Esparza
as her attacker, but Lucero picked him out of a photo lineup approximately one month after the
offense. Id. Lucero hesitated when presented with the photo lineup because her attacker had facial
hair and Esparza did not have facial hair in the photo. Id. She made a positive identification of
Esparza during trial as her attacker. Id. Esparza presented an alibi defense at trial. Id. at 916-17.
No DNA evidence was admitted at trial. Id. at 917. A jury found Esparza guilty and sentenced
him to life imprisonment.
Esparza filed a motion for DNA testing alleging that the biological evidence was never
subjected to DNA testing, and testing would show that he is innocent. Id. at 918. The State filed
a response in which it admitted that the biological evidence existed, but it maintained that Rios
had sex two days before the offense, and consequently, there was a possibility that some unknown
third party’s DNA could be found on the biological evidence. Id. Thus, it argued that any DNA
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not contributed by Esparza would not be exculpatory because it could be attributed to the person
with whom the complainant had sex prior to the offense. Id. The convicting court denied the
motion for DNA testing and the court of appeals affirmed. Id. at 919. The Court of Criminal
Appeals reversed because it found a lack of factual and scientific evidence supporting the State’s
position. Id. at 921-22. Citing Blacklock, the Court also held that “Lucero’s and Cantu’s eye-
witness identification of Esparza is of no consequence in considering whether Esparza has
established that, by a preponderance of the evidence, exculpatory DNA tests would prove his
innocence.” Id. at 922. The Court also stated that in sexual assault cases, any overwhelming eye-
witness identification and strong circumstantial evidence supporting guilt is inconsequential when
assessing whether a convicted person has sufficiently alleged that exculpatory DNA evidence
would prove his innocence under Article 64.03(a)(2)(A). Id.We conclude that both Blacklock and Esparza are distinguishable because they are sexual
assault cases involving biological evidence deposited in and on the victim by the attacker. It is
well known and scientifically-accepted that there is a reasonable likelihood that the assailant’s
DNA may be found in the biological evidence collected during a sexual assault exam. An issue
of identity existed in both cases at trial, and the defendants established by a preponderance of the
evidence that exculpatory DNA test results would prove their innocence. The instant case does
not involve sexual assault or the type of biological material at issue in Blacklock and Esparza. It
is significant that Appellant failed to establish the nature of the DNA evidence he sought to have
tested. We assume Appellant intended to have the sword examined for DNA deposited by the
perpetrator’s touch, but he did not offer any evidence to show that this is even possible. The cases
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are further distinguishable because, unlike what occurred here, neither defendant admitted to the
police that he was the person involved in the offense, and neither of them asserted self-defense at
trial or on appeal.
Courts have consistently held that when the defendant asserts self-defense at trial, identity
is not an issue in the case. See Peyravi v. State, 440 S.W.3d 248, 249-50 (Tex.App.--Houston
[14th Dist.] 2013, no pet.)(identity was not an issue because the defendant admitted stabbing his
girlfriend but claimed self-defense); Birdwell v. State, 276 S.W.3d 642, 646 (Tex.App.--Waco
2008, pet. ref’d)(identity was not an issue because the defendant claimed that he stabbed the victim
in self-defense); Lyon v. State, 274 S.W.3d 767, 770 & n.1 (Tex.App.--San Antonio 2008, pet.
ref’d)(same); Reger v. State, 222 S.W.3d 510, 514 (Tex.App.--Fort Worth 2007, pet. ref’d)
(identity was not an issue where defendant admitted to shooting victim in self-defense). Because
Appellant never contested his involvement in the altercation with Stevenson at trial, but rather
sought to show that Stevenson was the first aggressor in the dispute, and he presented a self-
defense argument on appeal, the trial court properly concluded that identity was not an issue in the
case. We overrule Appellant’s sole issue and affirm the trial court’s order denying Appellant’s
motion for DNA testing.
November 29, 2017
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating
(Do Not Publish)
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