                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00558-CR


IVY MILLER HARBOUR                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                                  Introduction

      In a single point, Appellant Ivy Miller Harbour appeals the trial court’s

denial of her request for DNA testing.        See Tex. Code Crim. Proc. Ann. art.

64.03(a)(1)(A) (West 2001). We affirm.




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      See Tex. R. App. P. 47.4.
                   Background Facts and Procedural History

      In 1993, Appellant was convicted of aggravated sexual assault of a child

and sentenced to sixty years’ confinement. This court affirmed her conviction in

1995. Harbour v. State, No. 02-93-00540-CR (Tex. App.—Fort Worth Feb. 15,

1995, pet. ref’d) (mem. op., not designated for publication).

      In 2007, Appellant requested DNA testing, and the trial court ordered the

State to produce a list of any evidence in its possession that could be tested for

DNA so that the trial court could determine whether further testing would be

required.   See Tex. Code Crim. Proc. Ann. art. 64.03.           The State produced

affidavits from the forensics division and from the property room of the law

enforcement agency that had investigated the case, the Fort Worth Police

Department, stating that the department had never been in possession of any

biological material pertaining to Appellant’s case. The trial court issued a finding

that no DNA evidence existed and denied Appellant’s request.

                                Standard of Review

      A trial court’s denial of a motion for post-conviction DNA testing is

reviewed under a bifurcated process. Rivera v. State, 89 S.W.3d 55, 59 (Tex.

Crim. App. 2002), cert. denied, 539 U.S. 978 (2003) (citing Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford almost total deference both to

the trial court’s determination of historical fact and to its application-of-law-to-fact

issues that turn on credibility and demeanor. Id. But we review de novo all other

application of law-to-fact issues. Id. This de novo review usually includes the


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ultimate issue in post-conviction DNA testing cases, which is whether ―a

reasonable probability exists that exculpatory DNA tests would prove their

innocence.‖ Id. (citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App.

2002).

                                  Applicable Law

      Before a trial court may order forensic DNA testing of evidence containing

biological material, it must first find that the evidence still exists. Tex. Code Crim.

Proc. Ann. art. 64.03(a); see Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App.

2002). A convicted person who moves for post-conviction DNA testing bears the

burden of satisfying the requirements of chapter 64 of the code of criminal

procedure by showing that the evidence he wants tested contains biological

material. Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010). A

mere assertion or general claim that there is evidence containing biological

material fails to satisfy the movant’s burden. Id.; Routier v. State, 273 S.W.3d

241, 256 (Tex. Crim. App. 2008), cert. denied, 541 U.S. 1040 (2004).

         The trial court properly denied the motion for DNA testing.

      Appellant’s motion presents nothing more than an unsupported general

claim. She has failed to meet her threshold burden of showing that biological

material that could be tested for DNA exists. Nor has she specified what type of

biological material she believes may contain DNA. On the other hand, the State

submitted two affidavits that the investigating agency was never in possession of

any DNA evidence. The State is not required to submit endless affidavits from


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every police and medical agency in the county to establish that no biological

evidence exists.   See Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d); Mearis v. State, 120 S.W.3d 20, 25 (Tex.

App.––San Antonio 2003, pet. ref’d).         To the contrary, the court of criminal

appeals has held that one affidavit from the investigating law enforcement

agency stating that the requested biological evidence had been destroyed was

sufficient to support the trial court’s finding that no evidence existed. Shannon v.

State, 116 S.W.3d 52, 55 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 829

(2004). Appellant has offered no evidence to contradict the affidavits presented

by the State. We overrule Appellant’s sole point.

                                   Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s denial of

Appellant’s post-conviction motion for DNA testing.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2011




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