Opinion
No. 05-03-01114-CR.
Opinion issued March 31, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F94-41463-R. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
MEMORANDUM OPINION
Michael Leviege appeals the trial judge's order denying his motion for DNA testing. On November 14, 1994, appellant pleaded nolo contendere to the charge of aggravated sexual assault of his daughter. Pursuant to a plea bargain agreement, appellant was placed on deferred adjudication for eight years. When he subsequently violated the terms of his probation, he was adjudicated guilty and sentenced to fifty years' confinement. In a single issue, appellant contends the trial judge erred in overruling his motion because he properly established that identity was an issue in both his motion and affidavit. We affirm the trial court's order. On May 13, 2001, appellant filed a motion requesting DNA testing as permitted by chapter 64 of the criminal procedure code. See Tex. Code Crim. Proc. Ann. art. 64.01 64.02 (Vernon Supp. 2004). After the State filed its response, the judge denied appellant's motion, noting:
[appellant] fails to make the necessary prima facie showing under Texas Code of Criminal Procedure Article 64.01 et seq. Specifically, [appellant] fails to show that identity was or is at issue as required by article 64.03(a)(1)(B). [Appellant's] signed, sworn judicial confession to the offense as alleged was admitted during his plea of nolo contendere. Further, the victim in this case knew [appellant], her father. [Appellant] does not show how identity could be at issue where no risk of misidentifying a family member exists.Although appellant assigns this ruling as error, alleging identity was and is an issue and that he properly established the same in both his motion and affidavit, we cannot agree. In his boiler-plate motion, appellant states, "This motion is accompanied by the attached affidavit wherein Appellant swears he is not the person who committed the offense for which he was committed." In the affidavit, appellant states he is entitled to DNA testing because (i) he is "innocent of the charge(s)" against him and (ii) "[t]here is a reasonable probability that had exculpatory results been obtained through DNA testing, [he] would have been found not guilty of the charge(s)." The complainant in this case was appellant's daughter, and appellant does not allege she misidentified him. Nor does he offer this Court a reason why we should question the veracity of his signed judicial confession in which he admits committing the offense. Furthermore, in his affidavit, appellant does not state he was not the individual who committed the assault. Because appellant provides no facts in support of his claims, we cannot conclude the trial judge erred in determining that identify was not a factor and denying appellant's motion. See Tex. Code Crim. Proc. Ann. art. 64.01 We overrule appellant's sole issue. We affirm the trial court's order.