                                 NO. 12-07-00385-CR

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JEFFERY LEN JACKSON,                              §    APPEAL FROM THE 123RD
APPELLANT

V.                                                §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          §    SHELBY COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Appellant Jeffery Len Jackson appeals the trial court’s order denying his pro se motion for
DNA testing. In one issue, Appellant contends that the trial court’s order violated article 64.03 of the
Texas Code of Criminal Procedure, articles I and X of the Texas Constitution, and the Fourteenth
Amendment to the United States Constitution. We affirm.

                                            BACKGROUND
       After waiving indictment, Appellant was charged by information with aggravated sexual
assault of a child. This charge was based upon one of multiple occasions where Appellant had sex
with his four year old daughter. On June 20, 2003, Appellant pleaded guilty to the charge, and the
trial court placed Appellant on deferred adjudication probation for ten years. On September 19, 2003,
the State filed a motion to revoke Appellant’s probation and proceed to final adjudication, alleging
that Appellant had violated the terms of his probation. After a hearing on the State’s motion, the trial
court revoked Appellant’s probation and adjudicated his case, finding him guilty and sentencing him
to imprisonment for life.
       On September 13, 2007, Appellant filed his motion for DNA testing. In that motion,
Appellant requested that all “biological material” secured in relation to his case be subjected to DNA
testing. Appellant claimed that the State possessed such material “DURING                    THE TRIAL OF THE

OFFENSE ”   but that the material had not been tested.
        On September 21, 2007, the State filed a response to Appellant’s motion. The State asserted
that no biological material was recovered by the State. The State explained that “[b]ecause there was
never any biological material in existence, it cannot possibly ‘still be in existence.’” Therefore, the
State argued that Appellant’s request was “not at all possible since there was never any DNA
evidence.” On September 28, 2007, the trial court signed a written order stating that Appellant’s
motion was “FRIVOLOUS AND DENIED.” This appeal followed.

                                                  THE ORDER
        In his sole issue, Appellant asserts that the trial court “SUMMARILY               DENIED HIS MOTION

WITHOUT RULING ON THE MERITS OF             APPELLANT ’S     MOTION FOR       DNA TESTING .” According to
Appellant, the trial court erroneously denied Appellant’s motion without reaching the merits because
Appellant had pleaded guilty to the offense underlying his conviction. However, this assertion is not
supported by the trial court’s order. Instead, the trial court did not explain the grounds supporting its
decision in its written order. The trial court simply stated that Appellant’s motion was “FRIVOLOUS
AND DENIED.”
        We previously ordered the trial court to prepare written findings of fact and conclusions of
law. The findings and conclusions made by the trial court show that the trial court denied Appellant’s
motion on its merits. For example, the trial court stated that although “DNA testing was available
at the time, there never was any DNA evidence to test.” The trial court explained that

        [t]here was no DNA evidence in this case. It is uncommon to have DNA evidence in Aggravated
        Sexual Assault of a Child cases because children do not make the outcry close enough in time to the
        assault so that DNA evidence may be collected.

        . . . . In this case, there was never any DNA evidence because the child did not make the outcry
        immediately after [any] one of the aggravated sexual assaults. By the time the outcry was made, no
        DNA evidence was found.


Further, the trial court stated in these written findings and conclusions that it denied Appellant’s
motion for DNA testing “because no DNA evidence existed.”



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         The record before us reflects that the trial court denied Appellant’s motion after reaching its
merits, specifically on the ground that no DNA evidence ever existed. Therefore, we hold that the
error Appellant complains of, a decision made without reaching the merits, did not occur.
Accordingly, we overrule Appellant’s sole issue. See, e.g., Pena v. McDowell, No. 12-05-00116-CV,
2007 WL 949614, at *4 (Tex. App.–Tyler Mar. 30, 2007, no pet.) (mem. op.) (overruling issue after
finding that the error complained of did not occur); Odom v. Odom, No. 12-06-00218-CV, 2007 WL
677800, at *1 (Tex. App.–Tyler Mar. 7, 2007, no pet.) (mem. op.) (same).

                                                    DISPOSITION
         We affirm the order of the trial court.



                                                                   JAMES T. WORTHEN
                                                                       Chief Justice


Opinion delivered April 8, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                               (DO NOT PUBLISH)




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