## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 15 - 00401 - CR

RONALD J. COLEMAN APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1301 750R

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Ronald J. Coleman appeals from the trial cour t’s order denying his postconviction motion for forensic DNA testing. We affirm. A jury convicted Coleman of one count of aggravated sexual assault of an elderly or disabled person and one count of injury to a disabled person causing bodily injury

. See T ex. Penal Code Ann. § § 22.021(a)(2)(c) , 22.04(f) (West

1 See Tex. R. App. P. 47.4.2

Supp. 2016 ). This court affirmed his convictions. See Coleman v. State , No. 02

- 13

- 00185

- CR , 2014 WL 2809064 , at *1 (Tex. App.

— Fort Worth June 19, 2014 , pet. ref’d ) (mem. op., not designated for publi cation)

. On April 24, 2015, Coleman filed a motion for forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure , asserting that a medical examination had been conducted on the victim in his case , and that physical evidence from t hat examination “may have been turned over to the [p]rosecut ion for evidence

. ” See Tex. Code Crim. Proc. Ann. art. 64.01(a

- 1) (West Supp. 2016 )

. The State filed a re sponse to Coleman’s motion and attached the affidavit s of Senora Spencer and Thomas A. St impson , who w ere the property/evidence custodian s for the Fort Worth Police Department’s property

room and crime lab , respectively

. Both S pencer and Stimpson testified that their respective agencies were “ never in possession of any evidence” relating to C oleman’s case. The State argued that because it did not have possession of any physical evidence relating to Coleman’s case that might contain biological material, the trial court should deny his motion. See id

. arts. 64.01(b), 64.03(a)(1) (West Supp. 20 16 )

. On September 18, 2015, the trial court signed an order denying Coleman’s motion for testing because “no evidence containing biological material exists in a condition making DNA testing possible.” Coleman3

filed a notice of appeal from the trial court ’s orde r

. 2 See id. art. 64.05 (West
2006 ). Based on the record as recounted above, we conclude that the trial court did not err by denying Coleman’s motion for forensic DNA testing. See generally Reger v. State , 222 S.W.3d 510, 514 (Tex. App.

— Fort Wort h 2007, pet. ref’d) (holding, in review of ruling on motion for forensic DNA testing, appellate court’s standard is bifurcated), cert. denied , 552 U.S. 1117 (2008). A trial court may order forensic DNA testing only if the statutory preconditions are met , and the convicted person bears the burden to satisfy all preconditi ons. See Holberg v. State , 425 S.W.3d 282, 284 (Tex. Crim. App. 2014); Wilson v. State , 185 S.W.3d 481, 484 (Tex. Crim. App. 2006) (op. on reh’g). One such precondition to testing is the requirement that evidence that has a reasonable likelihood of containing biological material exists

. See Tex. Code Crim. Proc. Ann. a rts. 64.01(b), 64.03(a)(1)(A) (i) (West Supp. 2016)

. Here, the State notified the trial court that it did not have any phy sical evidence relating to Coleman’s case that might contain biological material

. See id. art. 64.02(a)(2)(B) (West Supp. 2016)

. Coleman

2 Coleman did not file a brief. On multiple occasions, we notified him that h e had failed to file a brief in accordance with our rules. We also extended his deadline to file a brief and warned him that his failure to do so would result in our consideration of his appeal without briefing. When Coleman still did not file a brief, we notified him that we would submit his appeal without briefs. See Tex. Code Crim. Proc. Ann. art. 44.33( b) (West 20 06); Tex. R. App. P. 38.8(b)(4). S ee generally Sanchez v. State , 209 S.W.3d 117 , 121 (Tex. Crim. App. 2006) (noting courts of appeal may review unassigned error so long as the alleged error was preserved in the trial court).4

failed to carry his burden to show such evidence wa s available for testing; thus, the trial court did not err by deny ing his motion for forensic DNA testing. See Bolden v. State , 112 S.W.3d 312, 313

– 14 (Tex. App.

— Fort Worth 2003, pet. ref’d). We affirm the trial court’s order.

/s/ Lee Gabriel LEE GABRIEL JUSTICE PANEL: MEIER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH Tex. R. Ap p. P. 47.2(b)
DELIVERED: September 29, 2016