Opinion
No. 05-02-01904-CR
Opinion Issued August 7, 2003. Do Not Publish Tex.R.App.P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F92-02199-T
MEMORANDUM OPINION
This is an appeal of the trial court's order denying appellant's motion for post-judgment forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. We affirm the order because appellant's identity was not an issue in the case. Appellant stands convicted of aggravated sexual assault. In the trial of the case, the victim testified that appellant forced her to engage in oral sex with another woman by punching the victim in the face, which caused a gash over her right eye. Police investigating the victim's complaint found a blanket, hanging across a doorway in the house where the victim said the assault occurred. The blanket had what appeared to be blood at about eye level. The blanket was admitted into evidence, but the spot was not analyzed. Appellant testified that he, the victim, and the other woman were present in the house together, but he denied the sexual assault. In ruling upon a DNA testing request, the convicting court must make certain findings before it can order testing. See Tex. Code. Crim. Proc. Ann. art. 64.03 (Vernon Supp. Pamph. 2003). That identity was or is an issue in the case is one of the required findings. Appellant argues his identity was an issue and seeks to have a DNA test of the spot on the blanket. "Chapter 64 requires that identity `was or is' an issue, not that future DNA testing could raise the issue." Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim.App. 2002). Appellant never contested the victim's identification of him. Rather, he admitted being at the crime scene, with the victim and the other woman, but denied the assault ever occurred. Appellant did not suggest that any other person was present. And there was no suggestion the victim had identified the wrong person as her assailant. Further, appellant does not explain how identifying the person whose blood was on the blanket would have any bearing on the issue of identity. We overrule appellant's sole point of error. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing. DAVID F. FARRIS JUSTICE, ASSIGNED