COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00469-CR

GREGORY MCCAIN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 0681565D

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MEMORANDUM OPINION1

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Appellant Gregory McCain appeals, pro se, the trial court’s denial of his 

motion for DNA testing. We affirm. 

Background 

Appellant pleaded no contest to aggravated assault with a deadly weapon 

in February 1999 pursuant to a plea-bargain agreement and was placed on 

 

1See Tex. R. App. P. 47.4.
2

deferred adjudication, with various conditions, for a period of six years. In May 

1999, the trial court found that Appellant violated the conditions of his deferred 

adjudication, adjudicated him guilty of aggravated assault with a deadly weapon, 

and sentenced him to 20 years’ confinement. His conviction was affirmed on 

appeal by this court. McCain v. State, No. 02-99-00330-CR, slip op. at 1 (Tex. 

App.—Fort Worth July 20, 2000, no pet.) (not designated for publication). 

Since his conviction, Appellant has filed four motions for DNA testing.2 

The first was denied by the trial court on October 17, 2001. The second motion 

for DNA testing was denied by the trial court on July 1, 2013, and his appeal of 

that denial was dismissed by this court for want of jurisdiction. See McCain v. 

State, No. 02-13-00459-CR, 2013 WL 6157123 (Tex. App.—Fort Worth Nov. 21, 

2013, no pet.) (not designated for publication). His third motion for DNA testing 

was denied August 5, 2014.3

 

2Appellant also filed four applications for writ of habeas corpus and each of 

them was dismissed by the court of criminal appeals. See Ex parte McCain, WR61,091-05, No. C-2-01-0019-0681565-D (Tex. Crim. App. Nov. 20, 2013); Ex 

parte McCain, WR-61-091-04, No. C-2-009438-0681565-C (Tex. Crim. App. Nov. 

23, 2011); Ex parte McCain, WR-61,091-02, No. C-2-009238-0681565-B (Tex. 

Crim. App. Mar. 30, 2011); Ex parte McCain, WR-61-091-01, No. C-2-006868-

0681565-A (Tex. Crim. App. Oct. 26, 2005). 

3Appellant attempted to appeal the trial court’s oral denial of his motion but 

we dismissed his appeal for lack of jurisdiction because a written order had not 

yet been entered. See McCain v. State, No. 2-13-00599-CR, 2014 WL 670640 

(Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (mem. op., not designated for 

publication). 
3

Appellant’s fourth motion for DNA testing, the subject of this appeal, was 

denied by the trial court on December 2, 2015. The trial court adopted the 

“State’s Proposed Memorandum, Findings of Fact and Conclusions of Law” by 

written order signed December 2, 2015. In its order adopting the State’s 

memorandum, the trial court stated that it was denying Appellant’s fourth motion 

for DNA testing “because no evidence containing biological material exists in a 

condition making DNA testing possible.” The court further found that there were 

“no reasonable grounds for the motion to be filed because no evidence exists 

containing biological material” and therefore declined to appoint an attorney to 

represent Appellant. 

Discussion

A convicting court may order postconviction forensic DNA testing only if 

the court finds that the evidence “still exists and is in a condition making DNA 

testing possible.” Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (West Supp. 

2016). In reviewing the trial court’s ruling on a postconviction request for forensic 

DNA testing, we give “almost total deference” to the trial court’s resolution of 

questions of historical fact and application-of-law-to-fact issues that turn on 

witness credibility and demeanor, but we consider de novo all other applicationof-law-to-fact questions. Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 

2008). We therefore defer to the trial court’s findings when reviewing whether 
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the claimed DNA evidence exists and is in a condition to be tested. Rivera v. 

State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).4

The trial court found that Appellant was indicted for sexual assault of a 

child occurring on September 27, 1997. Although the assault took place on 

September 27, 1997, the child was not examined until December 10, 1997. The 

trial court further found that the White Settlement Police Department never 

collected any evidence, and that there was no evidence containing biological 

material to test in this case. These findings were supported by an affidavit by the 

property/evidence custodian for the White Settlement Police Department, which 

stated that the agency “was never in possession of any evidence” related to 

Appellant’s case. See Lewis v. State, 191 S.W.3d 225, 228 (Tex. App.—San 

Antonio 2005, pet. ref’d) (“Affidavit testimony from a relevant witness that no 

biological evidence from the case is maintained or possessed is sufficient, absent 

any contrary evidence, to support denial of a motion for forensic DNA testing.”) 

(citing Shannon v. State, 116 S.W.3d 52, 55 (Tex. Crim. App.), cert. denied, 543 

U.S. 829 (2003)). 

In fact, in his brief Appellant admits that there is no evidence to test by 

asserting that there “was never any evidence in this case,” that “without a 

doubt, . . . there isn’t any evidence in this case.” Appellant does not specify at 

any point what he is requesting be tested for DNA, but does refer to “the weapon 

 

4Such a determination may be made without an evidentiary hearing before 

the trial court. Id. at 58–9.
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involved” in his original motion. Nevertheless, the trial court found that there was 

“no evidence containing biological material [in existence] in a condition making 

DNA testing possible.” 

Appellant’s brief seems to complain more about the overall sufficiency of 

the evidence to support his conviction, rather than focusing on the denial of his 

motion for DNA testing.5 But in this case our jurisdiction is limited to the 

immediate issue of the denial of his motion for DNA testing, and specifically to 

the trial court’s determination of whether any evidence exists. See Reger, 222 

S.W.3d at 513 (holding that chapter 64 of the code of criminal procedure does 

not confer jurisdiction upon this court “to entertain collateral attacks on the trial 

court’s judgment or to review, under the guise of a DNA testing appeal, anything 

beyond the scope of those articles”). We therefore decline to address 

Appellant’s complaints as to the sufficiency of the evidence supporting his 

conviction. 

Appellant has not shown that any evidence exists to test for DNA and, in 

fact, admits that no such evidence exists. If evidence does not exist, the trial 

court cannot order DNA testing. Id. at 514; Tex. Code Crim. Proc. Ann. art.

 

5Appellant’s brief raises other issues that are outside the scope of this 

appeal, including “prosecutorial misconduct,” “vindictive/selective prosecution,” 

hiding or tampering with evidence, and challenges to the indictment made 

against him in the original case. We decline to address these issues, as we do 

not have the jurisdiction to do so. Reger v. State, 222 S.W.3d 510, 513 (Tex. 

App.—Fort Worth 2007, pet. ref’d), cert. denied, 552 U.S. 1117 (2008). We also 

note that we previously overruled Appellant’s challenges to the indictment. 

McCain, No. 02-99-00330-CR, slip op. at 3–8.
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64.03(a)(1)(A)(i). We therefore overrule Appellant’s only addressable issue and 

affirm the trial court’s order denying Appellant’s motion for DNA testing. 

Conclusion

Having overruled Appellant’s only addressable issue, we affirm the trial 

court’s order denying Appellant’s motion for forensic DNA testing. 

/s/ Bonnie Sudderth

BONNIE SUDDERTH

JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 26, 2016