Opinion
No. 05-04-00424-CR
Opinion Filed October 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-56386-M. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Jesse Renea Woodard appeals the trial court's denial of his motion for post-conviction DNA testing. In two issues, appellant argues the trial court erroneously denied his motion because (1) the State did not ascertain whether biological evidence existed, and (2) identity was an issue in the case below. Because the dispositive issue is clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's order. Appellant was charged with the aggravated sexual assault of fourteen-year-old B.L., his girlfriend's daughter. At trial, the State presented evidence that appellant had raped B.L. twice. After the first attack, B.L. became pregnant. She lied to her mother about the paternity of the child because appellant had threatened her. The pregnancy was aborted. After the second attack, B.L. complained of abdominal pain, and she was subsequently diagnosed with chlamydia. Not until weeks after the second attack — after appellant had moved out — did B.L. inform her mother that appellant was her attacker. The jury convicted appellant, and he was sentenced to life in prison. Appellant filed his motion for post-conviction DNA testing, and the State filed its response. The trial court entered an order denying appellant's motion on three grounds: Woodard failed to show he was denied testing through no fault of his own or because DNA technology was not sufficiently advanced at the time of his 2002 trial; no biological evidence exists in the case because of the delayed outcry of the victim; and identity is not, and was not, at issue. This appeal followed. Woodard's second issue is dispositive of this appeal. A convicting court may not order post-conviction DNA testing unless it finds that identity was or is an issue in the original trial. Tex. Code Crim. Pro. art. 64.03(a)(1)(B) (Vernon Supp. Pamph. 2004-2005). Because the question of whether identity was an issue in the case is an application-of-law-to-fact question, we review the trial court's determination de novo. See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). Appellant argues that DNA evidence could prove he was not the father of the aborted fetus and that he was not afflicted with chlamydia. These facts, he avers, raise the issue of another perpetrator and thus the issue of identity. We disagree that this evidence would place in issue appellant's identity as the person who sexually assaulted B.L. The evidence established that appellant lived with B.L. and her mother. Therefore, B.L. unquestionably knew and could identify her attacker. See Eubanks, 113 S.W.3d at 567 n. 1; see also In re McBride, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.). We conclude appellant is really challenging B.L.'s credibility, which is not an issue for this Court. We conclude identity is not and was not an issue in this case. Accordingly, we overrule appellant's second issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.