PATRICK STEVEN HELMICK, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion filed March 26, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00933-CR
............................
PATRICK STEVEN HELMICK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F94-41166-MI
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Moseley
        Patrick Steven Helmick was convicted by a jury of the aggravated assault of a child younger than fourteen years of age and sentenced to thirty years' confinement. See Helmick v. State, No. 05- 96-00517-CR (Tex. App.-Dallas July 21, 1998, pet. ref'd) (not designated for publication). Representing himself, Helmick generally appeals the trial court's order denying his motion for post- conviction forensic DNA testing, complaining specifically that he made a substantial showing that he would not have been found guilty of the offense. For the reasons below, we affirm. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
        Article 64.02(2) of the code of criminal procedure requires the State to deliver the evidence described in a motion for DNA testing to the trial court, along with a description of the condition of the evidence, or explain in writing to the court why it cannot. See Tex. Code Crim. Proc. Ann. art. 64.02(2)(A), (B) (Vernon 2006). To obtain DNA testing, the requirements of article 64.03(a) must be met. See id. art. 64.03(a); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). One of those requirements is relevant here: 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). In reviewing application of law to fact issues, including the ultimate question of whether the trial court was required to grant a motion for post-conviction DNA testing, we apply a de novo standard of review. See Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006); Rivera, 89 S.W.3d at 59.
        Helmick did not specifically identify the evidence he requested for testing either in his motion or in his affidavit accompanying his motion. The State filed a response to Helmick's motion, in which it referred to the record to support its statements that Helmick sexually assaulted A.F. on October 1, 1993, and A.F. told a family friend about the assault a few months later. After a detective recorded a telephone conversation between Helmick and A.F. in March 1994, Helmick was arrested. There was no indication in the trial record that a rape examination was conducted or biological evidence was collected, which the State opined was consistent with “the circumstances of delayed outcry.” The State also said that its attorney had conducted a review of the District Attorney's file and found no reference to any biological evidence having been collected in the case or having been in the State's possession at the time of trial. See Tex. Code Crim. Proc. Ann. art. 64.01(b) (referring to evidence “that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the [S]tate during the trial of the offense”). The State concluded that there was “no known biological evidence” and Helmick had failed to designate any evidence that might contain biological material, and, therefore, there was no evidence in the case containing biological material that could be delivered to the court in response to Helmick's motion and subjected to DNA testing.
        We conclude the State's response “explain[ed] in writing to the court why the [S]tate [could not] deliver the evidence to the court.” See id. art. 64.02(2)(B). Accordingly, the trial court could have properly found that no evidence existed to be tested. See id. art. 64.03(a)(1)(A)(i). Thus, the trial court properly denied Helmick's motion for post-conviction forensic DNA testing. We affirm the trial court's order.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060933f.u05
        
 
 

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