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
1
See Tex. R. App. P. 47.4.
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
2
Appellant 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, 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-2-009438-0681565-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).
3
Appellant 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).
2
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 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 whether
3
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
4
Such a determination may be made without an evidentiary hearing before
the trial court. Id. at 58–9.
4
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.
5
Appellant’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.
5
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
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