Opinion
No. 02-03-356-CR.
Delivered: March 18, 2004.
From the 297th District Court of Tarrant County.
Bruce Scott Garrett of Gatesville, TX, Pro Se Appellant.
Tim Curry, Criminal District Attorney; Charles M. Mallin, Steven W. Conder, and Kelly Loftus, Asst. Crim. Dist. Attys. of Fort Worth, TX, for State.
Panel F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
OPINION
Appellant Bruce Scott Garrett was convicted of aggravated sexual assault with a deadly weapon in 1993 and sentenced to seventy-five years' confinement. Appellant filed a motion for post-conviction forensic DNA testing in November 2002, which the trial court denied. The trial court entered findings of fact and conclusions of law, which stated in pertinent part:
Identity was not or is not an issue in this case because the defendant was found hiding above the location of this sexual assault right after it occurred.
Since the defendant's identity was not or is not at issue in this case, he does not meet the requirements of Chapter 64 of the Texas Code of Criminal Procedure for forensic DNA testing of evidence.
See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004). In two issues, Appellant appeals the trial court's denial of his motion.
In reviewing a trial court's decision on a DNA request, we employ a bifurcated standard of review. We afford almost total deference to a trial court's determination of issues of historical fact and application of law to fact issues that turn on credibility and demeanor while reviewing de novo other applications of law to fact issues. See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002), cert. denied, 124 S.Ct. 27 (2003).
In Appellant's first issue, he argues that the trial court erred in finding identity was not or is not an issue in this case. A defendant has the burden to show that identity was or is an issue without regard to the possible results of any future forensic DNA tests. Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim. App. 2002). Appellant contends that "[a] review of the trial transcripts will show that identity was the main issue at appellant's trial and that extensive testimony was presented by both the State and the defense during the suppression hearing." In the post-conviction proceeding, Appellant did not provide the trial court with the reporter's record from the trial on the merits or any other evidence that identity "was or is" an issue in this case. Therefore the trial court did not err in denying Appellant's motion for DNA testing based on Appellant's failure to provide this evidence. See Mearis v. State, 120 S.W.3d 20, 25 (Tex. App.-San Antonio 2003, pet. ref'd) (holding that in determining whether to order DNA testing, the trial court is not required to hold an evidentiary hearing and may rely on motion and State's written response). We overrule Appellant's first issue.
In Appellant's second issue, he contends that the trial court erroneously failed to enter a finding regarding chain of custody. The trial court was not required to find that the biological evidence in this case was subject to a sufficient chain of custody because it found that Appellant was not entitled to DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a). We overrule Appellant's second issue.
Having overruled both of Appellant's issues, we affirm the trial court's judgment.