                             NUMBER 13-07-00158-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


GODFREY GARCIA,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


   On appeal from the 105th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       Appellant, Godfrey Garcia, proceeding pro se, appeals from the trial court’s denial

of his sixth motion for post-conviction DNA testing. See TEX . CODE CRIM . PROC . ANN . art.

64.03 (Vernon Supp. 2007). We affirm.

       In 1996, Garcia was convicted by a jury of the offense of aggravated sexual assault.

Garcia appealed to this Court and argued, among other things, that “the sex was
consensual;” therefore, he could not be convicted of sexual assault. See Garcia v. State,

No. 13-96-128-CR, 1997 Tex. App. LEXIS 3633, at *8 (Tex. App.–Corpus Christi 1997, no

pet.) (not designated for publication). This Court affirmed his conviction in 1997. See id.

at *11.

          Garcia subsequently filed five post-conviction motions for DNA testing. See TEX .

CODE CRIM . PROC . ANN . art. 64.01 (Vernon Supp. 2007). The trial court denied his fifth

motion on October 9, 2003, and Garcia appealed that ruling. This Court, however, held

that Garcia’s notice of appeal was untimely filed, and we dismissed his appeal for want of

jurisdiction. See Garcia v. State, No. 13-04-039-CR, 2004 Tex. App. LEXIS 4056, at *2-4

(Tex. App.–Corpus Christi 2004, no pet.).1 On February 8, 2007, Garcia filed a sixth

motion for DNA testing. The trial court denied Garcia’s sixth motion on February 17, 2007.

Garcia filed a notice of appeal on March 5, 2007.

          The trial court may order DNA testing only when identity is an issue. See TEX . CODE

CRIM . PROC . ANN . art. 64.03(a)(1)(B); cf. Green v. State, 100 S.W.3d 344, 345 (Tex.

App.–San Antonio 2002, pet. ref'd) (holding that the trial court did not err in denying

Green's motion for DNA testing when he did not raise any issue regarding the sufficiency

of the evidence to prove his identity as the assailant and did not assert any facts supporting

his assertion that identity is or was an issue); In re McBride, 82 S.W.3d 395, 397 (Tex.

App.–Austin 2002, no pet.) (holding identity not at issue where appellate challenge to

sufficiency of the evidence was directed to an element other than identity). In the present



          1
          Garcia also sought a writ of m andam us from this Court, which we denied, stem m ing from his prior
m otions for DNA testing. Garcia v. State, No. 13-04-458-CR, 2004 Tex. App. LEXIS 8279 (Tex. App.–Corpus
Christi 2004, orig. proceeding) (m em . op., not designated for publication)..

                                                     2
case, Garcia argued that “the sex was consensual,” see Garcia, 1997 Tex. App. LEXIS

3633, at *8; therefore identity is not an issue.

       We affirm the trial court’s order denying Garcia’s sixth motion for post-conviction

DNA testing.




                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 17th day of July, 2008.




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