Nos. 05-02-01905- CR 05-02-01905-CR
Opinion Filed August 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F95-03708-VU F95-75635-TU. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
Opinion By Justice LANG.
Mitchell Austin Baker appeals the trial court's denial of post-conviction DNA testing pursuant to Texas Code of Criminal Procedure article 64.03. In a sole issue, appellant argues the trial court erred in denying DNA tests. We affirm the denial of appellant's motion.
Factual and Procedural Background
A jury convicted appellant of aggravated sexual assault of a child under fourteen years of age and compelling prostitution. We affirmed his convictions in an unpublished opinion in 1998. In May 2002, appellant filed a motion for post-conviction DNA testing pursuant to article 64.03 of the code of criminal procedure. The State answered that no biological evidence was collected in the investigation of either case. The State also argued the defendant had not made the required showing that a reasonable probability existed that DNA testing would prove his innocence. The trial court denied appellant's motion without conducting a hearing. Because the lack of biological evidence is dispositive of this appeal, we do not address the State's argument that appellant failed to prove a reasonable probability existed that DNA testing would prove his innocence. Motion for DNA Testing
A trial court may only order post-conviction DNA testing if the statutory preconditions are met. See Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002). One of the requirements of Chapter 64 of the code of criminal procedure, which governs motions for forensic DNA testing, is that a trial court may order such testing only if the court finds that evidence still exists and is in a condition making testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2003). The State responded to appellant's motion by revealing that no biological evidence was ever taken in their investigation of appellant. Appellant concedes this in his motion when he states it is "unknown" whether any evidence containing biological material exists. His motion further states, " If there is any DNA material the [appellant] would request testing of such material." We conclude appellant failed to make the required showing under chapter 64 that "evidence still exists and is in a condition making testing possible." See id. Obviously, the trial court did not err in denying appellant's motion for DNA testing when there was no evidence to test. We affirm the trial court's order denying DNA testing.