## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 15 - 00469 - CR
GREGORY MCCAIN APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRI CT COURT NO. 2 OF TA RRANT COUNTY

TRIAL COURT NO. 0681 565D

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Gregory McCain appeals, pro s e, the trial c ourt’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

1 See Tex. R. App. P. 47.4.2

deferred adjudication, with various condition s, 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 2 0 years’ confi nement. H is 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 d esignated for publication). Since his conviction, Appellant has filed four motions for DNA testing. 2 The first was denied by the tri al 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.) (no t designated for publication). His third motion for DNA testing was denied August 5, 2014. 3

2 Appellant also filed four applications for writ of habeas corpus and each of them w as dismissed by the court of criminal appeals. See Ex parte McCain , WR
61,091
- 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
- 06815 65
- 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).

3 Appellant attempted to appeal the tria l 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 appe al, was denied by the tri al court on December 2, 2015. The t rial court adopted the “State’s Proposed Memorandum, Findings of Fact and Conclusions of Law” by written o rder signed December 2, 2015. In its order adopting the State’s memorandum, the trial co urt 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 att orney to represent Appellant. Discussion A convicting court may order postconviction forensic DNA testing only if the court finds that the evi dence “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 application
of
- 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 whether4

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 cour t found that Appellant was indicted for sexual assault of a child occ urring on September 27, 1997. Although the assault took place on September 27, 1997, the child was not examine d until December 10, 1997. The trial court further found that the White Se ttlement Police Department never collected any evidence, and that there was no evidence containing biological
m aterial to test in this case. These findings were supported by an affidavit by the property/evidence custodian for the White Settlement Police D epartment, 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 biologica l 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)). I n fact, in his brief Appellant admits t hat 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 test ed for DNA, but does refer to “the weapon

4 Such a determination may be made without an evidentiary hearing before the trial court. Id. at 58

– 9.5

invo lved” 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.” Appe llant’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 den ial 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 support ing 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.

5 Appellant’s brief raises other issues that are outside the scope of this appeal, including “prosecutorial misconduct,” “vi ndictive/selective prosecution,” hiding or tampering with evidence, and challenges to the indictment made against him i n 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, 5 13 (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

– 8.6

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, w e 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