Opinion
No. 05-06-00576-CR
Opinion Issued April 5, 2007. DO NOT PUBLISH.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F89-78994-N.
Before Justices, O'NEILL, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Appellant appeals the trial court's denial of his request for post-conviction DNA testing. In June of 1989, he waived a jury trial and pleaded guilty pursuant to a plea bargain to sexual assault, a lesser-included offense of aggravated sexual assault of a child under the age of fourteen. The trial court assessed punishment at twenty years in prison. Appellant did not appeal the conviction. On October 14, 2003, he filed a motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. In his motion, appellant sought testing of clothing worn by the child during the sexual assault and vaginal swabs, if any, collected during a medical examination. On August 24, 2005, the trial court ordered the State to respond to appellant's motion. The State responded on February 20, 2006, that testing could not be conducted because no evidence concerning appellant's case remained in existence and identity was not an issue in the case. The trial court denied the request for DNA testing on March 8, 2006. In his sole point of error, appellant contends the trial court erred in dismissing his motion because he properly raised the issue of actual innocence in his motion for DNA testing. See Smith v. State, 165 S.W.3d 361 (Tex.Crim.App. 2005). Appellant's brief ignores the trial court's findings that "evidence does not exist that is subject to DNA testing under Chapter 64" and "testing cannot be granted under article 64.03 because identity is not, and was not, an issue." See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i), (B). The State explained in writing to the trial court why it did not deliver any evidence. See id. art. 64.02(2)(B). It provided written responses from the Southwestern Institute of Forensic Sciences, the Dallas Police Department, and the Dallas County District Clerk, none of which suggest that biological evidence existed or remained available for testing. The State also reasonably argued in its response that because the victim was not examined by a doctor until two months after the sexual assault, "it is unlikely that any DNA evidence was collected." We conclude appellant has failed to show there is any biological evidence available for testing. See Cravin v. State, 95 S.W.3d 506, 511 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (concluding that State's explanation in its written response that neither the district clerk nor sheriff's department had record of any evidence was sufficient for the court to find no evidence existed). We conclude the trial court did not err in denying appellant's motion, and we overrule appellant's sole issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.