RAFAEL GARCIA, SR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 19, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00530-CR
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RAFAEL GARCIA, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F92-43543-N
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OPINION
Before Justices O'Neill, Lang-Miers, and Mazzant
Opinion By Justice O'Neill
        Appellant appeals the trial court's dismissal of his petition for post-conviction DNA testing. In 1993, appellant was convicted of sexually assaulting his nephew's three-year-old daughter. Appellant's conviction was affirmed on direct appeal to this Court. See Garcia v. State, 05-93- 00884-CR (Tex. App.-Dallas May 3, 1994) (not designated for publication).
        Appellant filed a post-conviction motion requesting DNA testing of biological evidence. The State responded to the motion explaining that no DNA evidence would have been recovered in this case because the offense concerned digital penetration and the only physical exam of the child occurred weeks after the assault. Nevertheless, the State requested the Dallas Police Department, the Southwest Institute of Forensic Sciences (SWIFS), and the Dallas County District Clerk to review their files to determine if any biological evidence existed. Each entity replied it could not locate any biological evidence. The State also asserted appellant's motion should be denied because identity was not an issue in the case because the child knew her abuser. The trial court denied appellant's motion concluding identity was not an issue and no biological evidence existed.
        In his sole point of error, appellant contends the trial court erred in dismissing his motion because he properly raised the issue of actual innocence in his motion for DNA testing. See Smith v. State, 165 S.W.3d 361 (Tex. Crim. App. 2005). Appellant's brief wholly ignores the trial court's finding that there was no evidence that could have been subject to DNA testing. Because no biological evidence was secured in relation to the offense, we cannot conclude the trial court erred in denying appellant's motion. See Tex. Code Crim. Proc. Ann. art. 64.01(a)(b) (Vernon 2006); see also Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). We overrule appellant's sole point of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060530F.U05