Boyce Dee Phillips v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00140-CR ______________________________



BOYCE DEE PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court Red River County, Texas Trial Court No. CR00032

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Convicted and sentenced December 9, 2005, to life imprisonment for aggravated sexual assault of a child, Boyce Dee Phillips has now sought, and has been denied by the trial court, DNA testing. We affirm the ruling of the trial court.

Phillips asked for forensic DNA testing on any evidence in the possession of the State that might contain any trace of DNA evidence. ⁽¹⁾ See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2007). The trial court conducted a hearing at which several exhibits were introduced; no reporter's record was requested or filed. The trial court, in its order denying the motion, stated that it appeared from the record that there was no DNA evidence available, as Phillips had been accused and convicted of digital penetration of the victim.

Phillips contends on appeal that the court erred by determining there was no DNA evidence because there was evidence that he had penetrated the victim's sexual organ with his mouth and possibly that he had penetrated her mouth with his penis. The record shows, however, that he was accused and convicted of sexual assault by digital penetration, not by either of the other acts described by Phillips in connection with this motion. ⁽²⁾

Even under the incomplete record that is before this Court, however, it is apparent from our prior opinion in this case, as well as from Phillips' own allegations in this appeal, that the question of identity was not at issue in the prosecution. The Texas Code of Criminal Procedure explicitly states that a court may order DNA testing only if "identity was or is an issue in the case," and movant can meet other statutory requirements. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(B) (Vernon Supp. 2007). ⁽³⁾

In this case, the identity of the perpetrator of the crime was never at issue. There was no suggestion of misidentification. In light of the fact that the victim was a family member, identification of Phillips was not controverted at trial.

We affirm the order denying Phillips' request for DNA testing. ⁽⁴⁾

Josh R. Morriss, III

Chief Justice

Date Submitted: November 21, 2007

Date Decided: November 26, 2007

Do Not Publish

1. Phillips' counsel was appointed by the trial court solely for the limited purpose of representing Philips at the DNA hearing.

2. See Phillips v. State, No. 06-06-00018-CR, 2006 Tex. App. LEXIS 10622 (Tex. App.--Texarkana Dec. 14, 2006, no pet.) (mem. op., not designated for publication).

3. The statute goes on to require the convicted person to establish that he or she would not have been convicted if exculpatory results had been obtained through DNA testing.

4. Phillips' brief contains a number of arguments complaining about the underlying trial. He complains about receiving ineffective assistance of counsel, and counsel's alleged poor choices in selecting which evidence to seek to admit, as well as the inconsistent nature of the victim's testimony. None of those matters involve the present DNA proceeding; therefore, they may not be considered in this appeal. Phillips has attached to his brief a number of documents, including copies of emergency room forms, the outcry statement, the indictment, and a copy of the laboratory results on the evidence submitted for testing before trial--none of which showed any evidence that could be subject to DNA analysis.

to a term of imprisonment that exceeds ten years. Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(1) (Vernon Supp. 2008). To be eligible for jury-assessed community supervision, a defendant must file a written sworn motion before trial with the court that he or she has not previously been convicted of a felony in any state. Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon Supp. 2008). Trial counsel is ineffective if he or she fails to verify a motion for community supervision. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998); May v. State, 660 S.W.2d 888, 890 (Tex. App.--Austin 1983), aff'd, 722 S.W.2d 699, 700 (Tex. Crim. App. 1984); Trevino v. State, 752 S.W.2d 735, 736 (Tex. App.--Eastland), pet. dism'd, 759 S.W.2d 142 (Tex. Crim. App. 1988). These failures of counsel dashed any hope for Bonner to get community supervision.

2. Rule 21 of the Texas Rules of Appellate Procedure was amended, effective January 1, 2007. Among the amendments to that rule was the requirement that, when an error affected only punishment, trial courts are to grant new trials on punishment only. See Tex. R. App. P. 21.1(b), 21.9(a). Before 2007, new trials on only punishment could be granted by an appellate court, but a trial court could not "grant a new trial as to the punishment phase of a trial only." State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995); see State v. Stewart, No. 03-07-00735-CR, 2009 WL 1024721, at *9 (Tex. App.--Austin Apr. 15, 2009, no pet. h.); see also Catherine Greene Burnett, Justice Kerry P. Fitzgerald, Changes to the Texas Rules of Appellate Procedure, 70 Tex. Bar Journal 772 (October 2007). We must disagree with a recent opinion from one of our sister courts of appeals that has recited the previous rules prohibiting trial courts from ordering new trials on punishment only. See Morning v. State, No. 10-08-00171-CR, 2009 WL 333578, at *1 (Tex. App.--Waco Feb. 11, 2009, pet. filed.) (mem. op.) (citing Sorto v. State, 173 S.W.3d 469, 490 (Tex. Crim. App. 2005)).