Appellant was convicted of capital murder and filed a motion for DNA testing pursuant to Chapter 64 of the Texas Penal Code. The trial court denied this motion. Appellant then filed a second motion for DNA testing, which the trial court also denied. The Court of Appeals affirmed the denial of the second motion, based in part on the trial court's finding that identity was not an issue in the case because he committed the murder in the presence of a third party. Willis v. State, No. 02-06-091-CR (Tex. App.- Ft. Worth, September 27, 2007). Appellant petitioned this Court for discretionary review.

When the Court of Appeals issued its opinion in this case, it did so without the benefit of this Court's recent opinion in Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007). Therefore, we vacate the judgment of the Court of Appeals and remand for that court to consider the effect of Blacklock, if any, on its reasoning and analysis in this case.

En banc

Delivered: February 13, 2008

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