                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00453-CR


REGINALD DON RICHARDSON                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      In 1997, Appellant was convicted of one count of aggravated sexual

assault of a child and one count of indecency with a child by contact, both

enhanced by a prior felony conviction, and he was assessed punishment at sixty

years’ confinement and thirty-five years’ confinement, respectively. We affirmed

Appellant’s conviction in 1998. Richardson v. State, No. 02-97-00612-CR (Tex.

App.—Fort Worth Sept. 24, 1998, pet. ref’d) (not designated for publication). In

      1
      See Tex. R. App. P. 47.4.
2003, Appellant filed a request with the trial court for appointed counsel pursuant

to Texas Code of Criminal Procedure article 64.01(c). See Tex. Code Crim.

Proc. Ann. art. 64.01(c) (West Supp. 2010). Seven years later, on September

10, 2010, Appellant filed his request for DNA testing. The State filed a response

and proposed findings of fact and conclusions of law. The trial court adopted the

State’s proposed findings. Appellant has appealed the trial court’s denial of his

motion to this court. We will affirm.

       In the findings of fact and conclusions of law adopted by the trial court, the

court found that the victim was sexually touched by Appellant at age eleven, and

in 1993, when she was thirteen, Appellant engaged in sexual intercourse with

her.   In 1995, a year after Appellant last sexually assaulted her, the victim

outcried to a program director at a boys and girls club. The director reported the

outcry to the victim’s mother and to the authorities. The trial court found that the

outcry was delayed, that no evidence existed in a condition making DNA testing

possible, and that Appellant was not entitled to DNA testing, and it subsequently

denied his motion for DNA testing.

ARGUMENTS OF PARTIES

       In his brief, Appellant contends that the trial court erred by denying his

motion on the basis of a ―no evidence‖ affidavit. The affidavit in question was

executed by a Fort Worth Police Department property custodian. The affiant

swore that no such evidence existed in the Fort Worth Police Department.

However, Appellant contends that the State ―should have produced affidavits


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from other agencies that could have retained evidence containing biological

material that could be subjected to testing,‖ and the Tarrant County Medical

Examiner’s Office was mentioned parenthetically as an office that retains such

evidence. Appellant cites Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App.

2002).

      The State counters with a threefold argument:           1) Appellant did not

complain to the trial court or present any allegation that evidence existed

elsewhere; 2) evidentiary issues may be resolved by affidavit under article 64.03;

and 3) the facts of the case support a no evidence finding. Since we do not

understand Appellant to be contesting disposition of the DNA hearing requests

by affidavit under article 64.03, we need not consider the State’s second reply

point. The State complains of procedural default in its first reply point, and its

reliance on Shannon v. State, 116 S.W.3d 52, 54–55 (Tex. Crim. App. 2003)

might be well taken, but we will assume arguendo that Appellant’s motion and

accompanying affidavit preserved his complaint for review. We will answer the

State’s third point—―the facts of the case support a no evidence finding,‖—in the

affirmative.

      STANDARD OF REVIEW

      In reviewing a trial court’s ruling on a motion for post-conviction DNA

testing, an appellate court usually gives almost total deference to the trial court’s

findings of historical fact, and on application of law to fact issues that turn on

witness credibility and demeanor, but an appellate court considers de novo all


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other application of law to fact questions. Ex parte Gutierrez, 337 S.W.3d 883,

890 (Tex. Crim. App. 2011); see also Routier v. State, 273 S.W.3d 241, 246

(Tex. Crim. App. 2008).

      APPLICABLE STATUTORY LAW

      Texas Code of Criminal Procedure article 64.01 provides a convicted

person with a procedural vehicle to have forensic testing of DNA material that is

contained within existing evidence. See Tex. Code Crim. Proc. Ann. art. 64.01.

Article 64.01(b) specifies the parameters of the defendant’s motion for DNA

testing, limiting it to ―evidence described by Subsection (a) that was secured in

relation to the offense that is the basis of the challenged conviction and was in

the possession of the [S]tate during the trial of the offense.‖ See id. art. 64.01(b)

(emphasis added). In response to a defendant’s motion filed under article 64.01,

not later than sixty days after service of the motion, the State must either ―deliver

the evidence to the [trial] court‖ or ―explain in writing to [that] court why the [S]tate

cannot deliver the evidence to the court.” See id. art. 64.02(a)(2)(A)-(B). (West

Supp. 2010). And, a convicting court may order forensic DNA testing under this

chapter only if the court finds that the evidence ―still exists and is in a condition

making DNA testing possible.” See id. art. 64.03(a)(1)(A)(i) (West Supp. 2010)

(emphasis added). Lastly, the law provides that the convicted person establish

by a preponderance of evidence that the person would not have been convicted

if exculpatory results had been obtained through DNA testing.              See id. art.

64.03(a)(2)(A).


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      Appellant’s specific complaint, that the State should have sought affidavits

from other agencies that might have been in possession of relevant biological

material subject to testing, finds little support in his citation to Dinkins. In Dinkins,

the court of criminal appeals found that Dinkins failed to specifically identify the

biological material that he wanted to test.        See Dinkins, 84 S.W.3d at 642.

Additionally, that court held that a trial court is not obligated to order testing

before a convicted person establishes by a preponderance that there is a

reasonable probability that the person would not have been prosecuted or

convicted if exculpatory results had been obtained through DNA testing. See id.

at 643. Thus, Dinkins is neither applicable nor helpful to Appellant’s cause.

      In its brief, the State, in answer to Appellant’s sole argument with regard to

testing by other agencies, responds that article 64.02 only requires the State to

explain why it cannot deliver evidence to the trial court and does not require it to

obtain affidavits from every laboratory and law enforcement or police agency in

the region to demonstrate that no evidence exists. See Tex. Code Crim. Proc.

Ann. art. 64.02(a)(2)(B); see also Violet v. State, No. 02-03-00061-CR, 2003 WL

22804983, at *1 (Tex. App.––Fort Worth Nov. 26, 2003, pet. ref’d) (mem. op., not

designated for publication). We agree.

      The tenor of articles 64.02 and 64.03 is to provide an appellant with post-

conviction access to existing biological samples for the purpose of DNA testing,

not a carte blanche discovery mechanism to comb the laboratories and police

departments of this State for unidentified ―evidence.‖ A convicting court may


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order forensic DNA testing under this chapter only if the evidence still exists and

is in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art.

64.03(a)(1)(A)(i). In the instant case, the State explained in writing to the court

why it could not deliver the evidence to the court, see id. art. 64.02(a)(2)(B),

stating under oath that the Fort Worth Police Department did not have

possession of any such evidence.2 Additionally, the evidence showed that the

victim outcried about a year after the last assault suffered by the victim, thus the

likelihood of any biological material remaining in a testable form in, on, or near

the victim was quite remote. The findings and conclusions of the trial court are

supported by the evidence and were made in accordance with articles 64.02 and

64.03. We overrule Appellant’s sole point and affirm the trial court’s judgment.



                                                   PER CURIAM

PANEL:    CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting by
Assignment); WALKER and MCCOY, JJ.

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

DELIVERED: August 31, 2011

      2
       Several of our sister courts have explicitly held that the State is not
required to obtain affidavits from every possible agency in the area. 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);
Jackson v. State, No. 08-06-00276-CR, 2007 WL 2274670, at *2 (Tex. App.––El
Paso Aug. 9, 2007, no pet.) (not designated for publication); Johnson v. State,
No. 14-06-00317-CR, 2007 WL 925704, at *1 (Tex. App.—Houston [14th Dist.]
Mar. 29, 2007, no pet.) (mem. op., not designated for publication).


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