                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00190-CR

EDWARD S. HODGES, III,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 361st District Court
                             Brazos County, Texas
                             Trial Court No. 13,002


                          MEMORANDUM OPINION


      Edward S. Hodges, III was convicted on January 7, 1981 in the 272nd District

Court of Brazos County of “aggravated rape” and sentenced to 60 years in prison. He

did not appeal his conviction; however, he now appeals the trial court’s denial of his

motion for DNA testing. We affirm.

      In his first issue, Hodges complains that court which denied his motion for DNA

testing, the 361st District Court of Brazos County, did not have jurisdiction to rule on

Hodges’s motion because Hodges was tried and convicted in the 272nd District Court.

Hodges filed his motion for DNA testing in the 272nd District Court. It was transferred
to the 361st District Court, pursuant to a motion by the State and an order from the

272nd District Court, because the current judge of the 272nd District Court, Travis

Bryan, was the District Attorney at the time Hodges was tried. Further, at the time the

motion for DNA testing was filed, another district court judge in Brazos County, J.D.

Langley, was an assistant District Attorney for Brazos County at the time Hodges was

tried. Thus, the transfer of the motion for DNA testing to the 361st District Court was

proper and required under the circumstances. See TEX. CONST. art. V, § 11 ("[D]istrict

Judges may exchange districts, or hold courts for each other when they deem it

expedient, and shall do so when required by law"); TEX. GOV’T CODE ANN. § 24.003(b)(1)

(West 2004). To the extent Hodges complains that the judge of the 361st District Court,

Steve Smith, could not be fair and impartial, we note that no motion to recuse or

disqualify Judge Smith was filed; therefore, such complaint is waived. See TEX. R. APP.

P. 33.1.

       Hodges’s first issue is overruled.

       In his second and third issues, Hodges contends the trial court abused its

discretion when it denied Hodges’s motion for DNA testing and refused to hold an

evidentiary hearing before doing so. The State’s response to the motion demonstrated

that no biological evidence existed. You cannot test what you do not have. Moore v.

State, No. 10-12-00193-CR, 2013 Tex. App. LEXIS 226 (Tex. App.—Waco Jan. 10, 2013,

pet. dism’d) (not designated for publication).

       To the extent Hodges makes other complaints about not receiving the results of


Hodges v. State                                                                  Page 2
testing done in 1980, his relief, if any would be by an 11.07 post-conviction writ of

habeas corpus and is not an issue or a proceeding over which we have jurisdiction in

this appeal of the denial of a motion for DNA testing. See TEX. CODE CRIM PROC. ANN.

arts. 11.05 and 11.07 (West 2005).

       Hodges’s second and third issues are overruled.

       Lastly, Hodges complains that the trial court abused its discretion in failing to

appoint an attorney for him to pursue this motion for DNA testing. Because Hodges

did not establish the necessary allegations to obtain an attorney, the trial court did not

err in failing to appoint an attorney in this Chapter 64 appeal. See TEX. CODE CRIM.

PROC. ANN. art. 64.01(c) (West 2006). Hodges’s fourth issue is overruled.

       Having overruled each issue presented on appeal, we affirm the trial court’s

order denying Hodges’s motion for DNA testing.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 12, 2015
Do not publish
[CRPM]




Hodges v. State                                                                     Page 3
