George Ivey v. State

Opinion issued November 26, 2003

    In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-01111-CR

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GEORGE DENNIS IVEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

 Harris County, Texas

Trial Court Cause No. 763759

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MEMORANDUM OPINION

           Appellant, George Dennis Ivey, pleaded guilty to indecency with a child. The trial court assessed punishment at 10 years in prison. Appellant did not directly appeal the trial court’s judgment, but, four years later, he filed a motion for DNA testing. The trial court held a hearing on the motion, accepted the State’s findings of fact and conclusions of law, and denied appellant’s request for DNA testing. In four points of error, appellant asserts (1) that his indictment was improperly enhanced by a misdemeanor, (2) that his indictment was improperly enhanced by an offense over 35 years old, (3) that there was insufficient evidence to sustain the conviction, and (4) that his motion for post-conviction DNA testing was improperly denied.

          We do not address the merits of appellant’s first, second, and third complaints because they may be appealed only directly. See Watson v. State, 96 S.W.3d 497, 500 (Tex. App.—Amarillo 2002, pet. ref’d) (holding that appeal from denial of Chapter 64 motion is limited to findings of lower court under articles 64.03 or 64.04 in non-capital case). Thus, we must overrule appellant’s first, second, and third points of error. We determine only whether the trial court erred in denying appellant’s motion for post-conviction DNA testing. We affirm.Facts  

          On April 8, 1998, appellant was convicted, pursuant to a negotiated plea bargain, of indecency with a child. The trial court assessed punishment at 10 years in prison. Appellant did not directly appeal his conviction; however, he did file a motion for post-conviction DNA testing. After an evidentiary hearing, the trial court denied appellant’s motion and adopted the State’s proposed findings of fact and conclusions of law. The trial court found that no items of evidence were in the possession of the Harris County District Clerk, the property and evidence custodians of the Pasadena Police Department (PPD), or the PPD crime laboratory. The trial court also found that appellant did not show that any evidence still existed in testable condition. Therefore, the trial court concluded that appellant failed to meet his burden to prove that exculpatory DNA test results would have proven his innocence.

Anders Brief

          Appellant’s counsel has filed a motion to withdraw from appellant’s representation on appeal, stating her conclusion that a thorough and complete review of the record has revealed no arguable grounds of error. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why counsel believes that there are no arguable grounds of error on appeal. See Gainous v. State, 436 S.W.2d 137, 137-38 (Tex. Crim. App. 1969).

          Counsel advised appellant of her evaluation and informed him of his right to file a pro se response. Appellant has filed a response.  

DNA Testing  

          In his fourth point of error, appellant contends that the trial court erred in denying his motion for post-conviction DNA testing. A convicting court may order forensic DNA testing if, among other criteria, (1) testable evidence still exists and has not been substituted, tampered with, replaced, or altered in any material respect and (2) identity was or is at issue. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2004); In re McBride, 82 S.W.3d 395, 396-97 (Tex. App.—Austin 2002, no pet.).   

          Whether potentially exculpatory DNA evidence exists and is in testable condition is a determination of historical fact, which we review for an abuse of discretion. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). When asserting that potentially exculpatory DNA evidence exists, a defendant must also clearly indicate what evidence should be tested. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). A trial court does not abuse its discretion in finding that no such testable evidence exists when admitted records from appropriate officials, such as court clerks or police custodians of property or evidence, show that no biological evidence relating to a particular case exists. See Cravin v. State, 95 S.W.3d 506, 511 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

          Appellant asserts that “some type of evidence” must have been taken when the complainant was examined by a doctor at Children’s Protective Services. Appellant asserts that, if that evidence were compared to his own DNA, the comparison would show that he did not molest the complainant. However, appellant has failed to indicate what evidence should be tested. Furthermore, the State has proffered the affidavits of the Harris County Exhibits Clerk, the PPD property and evidence custodians, and a PPD crime laboratory custodian to show that those agencies possess no biological evidence from appellant’s underlying case. Therefore, the trial court did not abuse its discretion in concluding that no testable evidence existed. See id. We hold that the trial court did not abuse its discretion in denying appellant’s motion for DNA testing.

          We overrule appellant’s fourth point of error.

  Conclusion   

          We affirm the trial court’s order denying appellant’s motion for post-conviction DNA testing.

          We grant appellate counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.). We note that counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).  

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Hanks.  

Do not publish. Tex. R. App. P. 47.2(b).