NO. 07-04-0586-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 30, 2005

______________________________ JAMES WARREN BRIGHT, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 137TH DISTRICT COURT OF LUB BOCK COUNTY; NO. 16,33 6; HONORA BLE AND REW J. KU PPER, JU DGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Appellant

Jame s Warren Bright app eals an order den ying his motion fo r postconviction forensic DNA testing filed pursuant to Chapter 64 of the Code of Criminal Procedure. By a si ngle iss ue, appe llant co ntends th e trial court erred in dismissing his motion based solely on the State’s response that it had no evidence in its possessi on. We affirm.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 a bated his appeal and remanded the proceedings back to the trial court to determine whether appellant was indigentand to enter any order s necessary to ensure the diligent and prompt pursuit of h is appeal. 2 On September 15, 1976, app ellant was convicte d of aggravated rape and sentenced to 99 years confinement. His conviction wasaffirmed on direc t appeal

. See Brightv. State, 585 S.W.2d 739 (Tex .Cr.App. 1 979). In October 20 01, appe llant fi led a mot ion for p ostconviction DNA test ing tobe performed on the various piecesof biological evidence in the State’s po ssession at the ti me of hisconvicti on. At a hearing on June 1 8, 2003, th e tria l court appointed counsel to represent appellant and ordered the State to inform the c ourt within 30 days whether any evidence wasavailable for DNA testing. 1 The State responded with a letter concluding that there was no evidence avail able for DN A testing in its possession and explai ning why they wer

e unableto produ ce any su ch evide nce. On November

17, 2004, the court entered an order of final disposi tion 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.2 d 85, 89 (Tex.Cr.A pp. 1997 ). That i s, we affo rd almosttotal deference to the tria l court’s determination of issues of historical fact and application-of-law-to-factissues that turn on credibility and demeanor, while we reviewde
novoother ap plicati on- of-law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 593

(Tex.Cr.App. 2002). Therefore, the trial court’s finding regarding the existence or location of the evi dence is

afforded almost to tal defer ence. Id. Chapter 64 provides that a convicting court may order forensic DNA testing only i f it finds the evidence “still exists and is in a c ondition mak ing DNA testin g 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 ent itled to DNA testi ng.” 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 failur e to deli ver the reque sted evid ence. See Mearis v. State, 120 S.W.3d 20, 24 (Tex.App.–San Antonio 2003, pet. ref’d ); Cr avin v. State, 95 S.W.3d 506, 509 (Tex.App .–Housto n [1st Di st.] 2002, pet. ref’ d).
In the present case, the trial court concluded appellant wa s not entitled to forensic DNA testing bas ed on the State’s explanation that there was no lo nger any evidence available for te sting in its possessi on. Unde r chapter 64, the tr ial cour t is not r equired 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.