                                  NO. 07-04-0586-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                   AUGUST 30, 2005

                          ______________________________


                         JAMES WARREN BRIGHT, APPELLANT

                                           V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 16,336; HONORABLE ANDREW J. KUPPER, JUDGE

                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


          Appellant James Warren Bright appeals an order denying his motion for post-

conviction forensic DNA testing filed pursuant to Chapter 64 of the Code of Criminal

Procedure. By a single issue, appellant contends the trial court erred in dismissing his

motion based solely on the State’s response that it had no evidence in its possession. We

affirm.
       On September 15, 1976, appellant was convicted of aggravated rape and sentenced

to 99 years confinement. His conviction was affirmed on direct appeal. See Bright v. State,

585 S.W.2d 739 (Tex.Cr.App. 1979). In October 2001, appellant filed a motion for post-

conviction DNA testing to be performed on the various pieces of biological evidence in the

State’s possession at the time of his conviction. At a hearing on June 18, 2003, the trial

court appointed counsel to represent appellant and ordered the State to inform the court

within 30 days whether any evidence was available for DNA testing.1 The State responded

with a letter concluding that there was no evidence available for DNA testing in its

possession and explaining why they were unable to produce any such evidence. On

November 17, 2004, the court entered an order of final disposition dismissing appellant’s

motion. Appellant contends the court’s reliance on the State’s determination that there was

no evidence available for DNA testing was in error. We disagree.


       In reviewing the trial court’s decision, we employ the bifurcated standard of review

articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997). That is, we afford

almost total deference to the trial court’s determination of issues of historical fact and

application-of-law-to-fact issues that turn on credibility and demeanor, while we review de

novo other application-of-law-to-fact issues.       Rivera v. State, 89 S.W.3d 55, 59




       1
        The trial court initially refused to appoint an attorney to represent appellant on his
motion, and he filed a pro se appeal. In Cause No. 07-03-0079-CR, we abated his appeal
and remanded the proceedings back to the trial court to determine whether appellant was
indigent and to enter any orders necessary to ensure the diligent and prompt pursuit of his
appeal.

                                              2
(Tex.Cr.App. 2002). Therefore, the trial court’s finding regarding the existence or location

of the evidence is afforded almost total deference. Id.


       Chapter 64 provides that a convicting court may order forensic DNA testing only if

it finds the evidence “still exists and is in a condition making DNA testing possible.” Tex.

Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004-05). The Court of Criminal

Appeals has held that “[n]othing in Article 64.03 requires a hearing of any sort concerning

the trial court’s determination of whether a defendant is entitled to DNA testing.” Rivera,

89 S.W.3d at 59. Therefore, the trial court, in deciding whether the evidence to be tested

still exists, may reach its decision based on the sufficiency of the State’s written explanation

of its failure to deliver the requested evidence. See Mearis v. State, 120 S.W.3d 20, 24

(Tex.App.–San Antonio 2003, pet. ref’d); Cravin v. State, 95 S.W.3d 506, 509

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d).


       In the present case, the trial court concluded appellant was not entitled to forensic

DNA testing based on the State’s explanation that there was no longer any evidence

available for testing in its possession. Under chapter 64, the trial court is not required to

conduct any further inquiry. Appellant’s issue is overruled.


       Accordingly, the order of the trial court is affirmed.



                                            Don H. Reavis
                                              Justice

Do not publish.

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