Steven James Whitley v. State ( 2004 )

WHITLEY V. STATE

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-158-CR

STEVEN JAMES WHITLEY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213 TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Steven James Whitley appeals the trial court’s denial of his motion for DNA testing.  In his sole point, appellant complains that the trial court may have considered his guilty plea in denying the DNA testing request, which appellant contends is improper if identity was an issue in the case.   See Tex. Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2004) (prohibiting convicting court from finding that identity was not at issue solely on basis of guilty plea).

Appellant admits that he was with the victim, his thirteen-year-old girlfriend, and does not deny that he had sex with her.  He simply contends that no assault occurred because he did not know her age.  Therefore, identity was not an issue in the case, and the trial court did not abuse its discretion if it considered appellant’s guilty plea in denying the DNA testing request.   See Morris v. State, 110 S.W.3d 100, 103 (Tex. App.—Eastland 2003, pet. ref’d); Green v. State, 100 S.W.3d 344, 344-45 (Tex. App.—San Antonio 2002, pet. ref’d).  We overrule appellant’s point and affirm the trial court’s judgment.

PER CURIAM

PANEL F: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DO NOT PUBLISH

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

DELIVERED: August 12, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4 .