Opinion
No. 05-04-00101-CR
Opinion Filed November 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F98-01249-UI. Affirm.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Clarence Wayne Arkansas appeals the trial court's denial of his motion for postconviction DNA testing. In a single issue, appellant argues the trial court erred in denying his motion because (1) identity is an issue in this case and (2) a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Because the dispositive issue is clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm. A convicting court may not order postconviction DNA testing unless it finds that identity was or is an issue in the case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004-05). Whether identity is an issue in the case is an application-of-law-to-fact question that we review de novo. See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). At trial, the complainant, D.R., testified she lived in the same apartment complex as appellant and had been acquainted with him for a couple of months. D.R. testified the two had "casual contact" and appellant had been to her apartment. One day, appellant asked D.R. to take him to his aunt's house, and D.R. agreed. While searching for the aunt, appellant tricked D.R. into accompanying him to a motel room, where he put a knife to D.R.'s neck and raped her twice. In his affidavit in support of his motion, appellant did nothing more than recite the evidence from his trial. He does not assert any facts to support any assertion that identity is or was an issue in the case. Further, at trial, appellant's defense was to suggest D.R. consented to have sex with him; he did not claim identity as an issue at trial or in the original appeal. See Arkansas v. State, No. 05-98-01258-CR, (Tex.App.-Dallas May 22, 2000, no pet.) (not designated for publication). The above evidence shows that D.R. knew her assailant and could identify him. Under these circumstances, we cannot conclude the trial court erred in denying appellant's motion for DNA testing. See Green v. State, 100 S.W.3d 344, 344-45 (Tex.App.-San Antonio 2002, pet. ref'd) (affirming trial court's denial of motion where defendant did not raise identity in original appeal and did not assert any such facts in affidavit accompanying DNA motion). We resolve appellant's issue against him. We affirm the trial court's order.