Terence Dennis O'Regan v. State ( 2006 )

                                               COURT OF APPEALS

                                                 SECOND DISTRICT OF TEXAS

                                                                FORT WORTH

                                        NO. 2-06-100-CR  

TERENCE DENNIS O=REGAN                                                  APPELLANT

                                                   V.

THE STATE OF TEXAS                                                                STATE

                                              ------------

           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                              ------------

                                MEMORANDUM OPINION^[1]

                                              ------------

In one point, Appellant Terence Dennis O=Regan contends that the trial court erred by denying Appellant=s postconviction request for DNA testing based on Appellant=s guilty plea and confession to the offense of murdering his wife.  Article 64.03 of the Texas Code of Criminal Procedure provides, among other things, that A[a] convicted person who pleaded guilty or nolo contendere 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.@^[2]  We know of no law, however, nor does Appellant point to any, that prevents the trial court from considering a judicial confession in ruling on a motion for DNA testing.^[3]  Further, Appellant=s motion, unsupported by an affidavit, just presented a bland request for ADNA testing on biological materials related to his case that are currently in the possession of the State or the State=s agents,@ and the State=s proposed memorandum, findings of fact, and conclusions of law regarding Appellant=s motion for DNA testing, which the trial court adopted in denying the motion, do not refer to the guilty plea or judicial confession.

Instead, the findings of fact show that

$ Appellant and the complainant were married and shared a home;

$ The complainant=s son saw her in possession of her purse at her home on the night that she was murdered;

$ Appellant had the purse when he surrendered to law enforcement in Florida;

$ The complainant=s body was found covered in a quilted comforter and hidden in a closet in the couple=s home;

$ Bloody shoe prints found on the comforter matched the tread of the shoes Appellant wore in Florida;

$ The blood found on the shoes was matched to the complainant=s blood through DNA testing;

$ Appellant wore a dark blue Armani suit on the night of the complainant=s murder;

$ A dark blue suit matching the description of the one he wore on the night of the murder was found covered in blood and hidden in the home of Appellant and the complainant;

$ The blood on the suit was matched to the complainant=s blood through DNA testing; and

$ Bloody footprints found in the tile entryway of the home visibly matched prints of Appellant=s feet.

The conclusions of law include the conclusion that Appellant failed to prove by a preponderance of evidence that he would not have been convicted had exculpatory results been obtained through additional DNA testing.^[4]  Based upon the record before us, we cannot say that the trial court erred by denying Appellant=s motion for DNA testing.^[5]  Accordingly, we overrule his sole point and affirm the trial court=s order.

PER CURIAM

PANEL F:    DAUPHINOT, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  December 21, 2006

---

^[1]See Tex. R. App. P. 47.4.

^[2]Tex. Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2006).

^[3]See, e.g., Rivera v. State, 89 S.W.3d 55, 60 (Tex. Crim. App. 2002); Carter v. State, 134 S.W.3d 484, 486 (Tex. App.CWaco 2004, no pet.).

^[4]See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2006) (requiring movant to establish by a preponderance of the evidence that he Awould not have been convicted if exculpatory results had been obtained through DNA testing@ before a convicting court may order DNA testing under Chapter 64).

^[5]See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App.), cert. denied, 543 U.S. 864 (2004); Rivera, 89 S.W.3d at 60 (providing bifurcated standard of review for rulings on postconviction DNA motions).