Opinion
No. 05-03-01115-CR
Opinion issued April 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F92-00849-H. Affirmed.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
In this appeal, Daryne Wayne Smith contends the trial court erred when it denied his motion for post-conviction DNA testing. Appellant asserts that identity was an issue in his case and therefore he is entitled to relief under chapter 64 of the Texas Code of Criminal Procedure. We affirm the trial court's order. At his original trial, appellant pleaded guilty to sexual assault. Documents from the case show that the complained-of offense occurred in a jail "tank" that appellant shared with the juvenile complainant, who was placed in the tank by mistake because the arresting officer thought he was adult. While the complainant was asleep, appellant climbed on top of him and tried to engage in anal sex with him. Another inmate in the tank claimed he saw the sexual assault occur. One of the officers in the jail stated in an affidavit that appellant admitted he had been "messing with" the complainant, and the complainant told her that "he was asleep and when he awaken, [sic] he found [appellant] on top of him" and that "his jumper was halfway open." After his release from jail, the complainant was treated for tears to his anus at the county hospital. In his sole issue on appeal, appellant contends the trial court erred in denying his motion for DNA testing. He claims that identity was and is an issue in his case. Before a trial court can order post-conviction DNA testing, the convicted person must show, by a preponderance of the evidence, that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Tex. Code. Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2004). Unless it finds that identity was or is an issue in the case, a convicting court may not order post-conviction DNA testing. See id. art. 64.03(a)(1)(B). Despite appellant's assertions to the contrary, identity was not, in fact, an issue in his case. The sexual assault occurred in a jail tank, among inhabitants of the tank who could obviously identify one another, if not through personal recollection then certainly through jail records. A third member of the tank observed the sexual assault and could also identify appellant. In addition, appellant pleaded guilty to the offense and admitted to a jail officer that he had been "messing with" the complainant. Given these circumstances, appellant could possibly claim the offense did not occur, but he cannot claim identity was or is an issue in his case. Appellant contends that "the mere filing of a Motion For Forensic Testing of DNA Evidence pursuant to Chapter 64 asserts that identity `was or is an issue in the case.'" Such an assertion does not, however, demonstrate that identity actually was or is an issue in the case. As the State notes in its brief, if the mere filing of a motion for post-conviction DNA testing were enough to place identity at issue, the statutory requirement that identity be at issue in the case would be rendered superfluous "since every motion would automatically satisfy it." We must presume the Legislature did not intend such an absurd interpretation of chapter 64. See State v. Harrod, 81 S.W.3d 904, 909 (Tex. App.-Dallas 2002, pet. ref'd). Because identity was not and is not an issue in appellant's case, we resolve appellant's sole issue against him and affirm the trial court's order denying appellant's motion for post-conviction DNA testing.