
                              NO. 07-09-0121-CR
                              NO. 07-09-0122-CR

                          IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                                MARCH 23, 2010




                             SHANNON LEE ABEYTA,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

               FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

          NO. 41,915-C; 43,143-C; HONORABLE ANA ESTEVEZ, PRESIDING



                             Memorandum Opinion



Before  QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Shannon Lee Abeyta appeals pro se from an  order  denying  his  motion
for post-conviction forensic DNA testing pursuant to Chapter 64 of the  Code
of Criminal Procedure.[1]  He pled guilty based on a  plea  bargain  to  two
charges of aggravated sexual assault in 2003 and filed a motion in 2009  for
DNA  testing  of  evidence  containing  "biological  material."   The  State
responded that it "never obtained from the child victim any  evidence  which
contained biological material."[2]  The State  also  alleged  that  identity
was not an issue  in  the  case  and  that  appellant  attached  an  unsworn
affidavit to his motion.  The trial court denied appellant's motion  without
stating the basis for its ruling.
      A trial court may order forensic DNA testing only if it  finds,  among
other things, that such evidence still exists and that identity  was  or  is
an issue in the case.  Tex. Code Crim. Proc. Ann. art.  64.03(a)(1)(A)(i)  &
(B) (Vernon Supp. 2009); see also Bell v. State, 90 S.W.3d  301,  306  (Tex.
Crim. App. 2002) (stating that the trial court must order  testing  only  if
the statutory preconditions are met).  In our review of  the  trial  court's
ruling, we afford almost total deference to the trial court's  determination
of issues of historical fact and application of law-to-fact  questions  that
turn on credibility and demeanor and review other issues  de  novo.   Rivera
v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).  As  such,  we  defer  to
the trial court's finding whether the claimed DNA evidence  exists.   Caddie
v. State, 176 S.W.3d 286, 289 (Tex. App.-Houston  [1st  Dist.]   2004,  pet.
ref'd).  Furthermore, the trial court may make its determination based  upon
the State's response to the motion, id. at 289; Mearis v. State, 120  S.W.3d
20, 24 (Tex. App.-San Antonio 2003, pet. ref'd), which response need not  be
accompanied by affidavits.  Whitaker v.  State,  160  S.W.3d  5,  8-9  (Tex.
Crim. App. 2004); Cravin v. State, 95 S.W.3d 506, 509  (Tex.  App.  -Houston
[1st Dist.] 2002,  pet ref'd).
      A court may order  testing  only  of  evidence  that  was  secured  in
relation to the offense that is the basis of the challenged  conviction  and
was in the possession of the State during the trial.  Tex. Code Crim.  Proc.
Ann. art. 64.01(b) (Vernon Supp. 2009).  Appellant's  motion  seeks  testing
of "any and all evidence containing biological material that  was  secured."
He fails to identify what specific evidence  he  seeks  to  have  tested  or
whether such evidence even exists.  See Atkins v.  State,  262  S.W.3d  413,
417 (Tex. App.-Houston [14th Dist.]  2008,  pet.  ref'd)  (noting  that  the
record contained no indication that such evidence was taken from  the  crime
scene or from appellant or the victim); James v. State, 196 S.W.3d 847,  850
(Tex. App.-Texarkana 2006, no  pet.)  (finding  the  motion  defective  when
there was  no  suggestion  in  it  that  any  biological  material  actually
exists).
      In response, the State has alleged that it never obtained any evidence
upon which DNA testing could be conducted.  It further went  on  to  explain
that the sexual assault nurse examiner did not perform any laboratory  tests
to obtain biological  material  due  to  the  length  of  time  between  the
assaults and the examination and the fact the child gave no indication  that
appellant  had  ejaculated  into  her  mouth  or  sexual  organ.  Given  the
vagueness of appellant's motion and the response of the  State,  the  record
does not establish the existence of any evidence  subject  to  testing.  See
Lopez v. State, 114 S.W.3d 711, 716-17 (Tex. App.-Corpus  Christi  2003,  no
pet.).  That being so, the trial court did not err in  denying  the  motion.
Id. at 717 (finding no error given the State's response that  there  was  no
evidence available to test).[3]
      Accordingly, the order of the trial court is affirmed.
                                        Per Curiam
Do not publish.

-----------------------
      [1]Appellant also complains that the trial court erred in  failing  to
appoint counsel for him.  However, we previously abated this appeal for  the
appointment of counsel.

      [2]The State is required to either deliver the evidence to  the  court
along with a description of the condition of  the  evidence  or  explain  in
writing why the evidence cannot be delivered.  Tex. Code  Crim.  Proc.  Ann.
art. 64.02(a)(2) (Vernon Supp. 2009).

      [3]We do not address whether appellant's  judicial  admission  to  the
commission  of  the  underlying  offenses  negated  any  potential  for  his
identity being in dispute.



