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Click here for the full text of this decision FACTS:Michael Joseph Caddie was convicted of aggravated sexual assault in 1985 and is currently serving a 70-year term. In November 2002, Caddie asked a trial court for post-conviction DNA testing. In response to Caddie’s motion, the state submitted an affidavit on behalf of each custodian of the Harris County District Clerk, the Houston Police Department Crime Lab and the police department’s Property Room. Each swore that his or her department did not have evidence relating to Caddie’s conviction. The trial court denied Caddie’s motion, though Caddie was not present for the court’s ruling. He now appeals. HOLDING:Affirmed. Caddie argues that the trial court’s denial violated his constitutional rights to confront witnesses and to due process, because he was not present at the hearing on his motion and because he could not cross-examine the state’s witnesses since their testimony was made in affidavit form. The court cites Cravin v. State, 95 S.W.3d 506 (Tex. App.-Houston [1st Dist.] 2002, pet. ref’d), to conclude that Caddie’s absence from the hearing does not violate the Confrontation Clause and to conclude that the Due Process Clause does not require that an applicant be present at a proceeding on a motion for forensic DNA testing. A defendant is such a situation has no separate constitutional right to cross-examine witnesses who offer affidavits about whether evidence to be tested exists. As for the trial court’s decision itself, the court rejects Caddie’s assertion that the state did not satisfy its burden of showing that evidence did not exist somewhere else within Harris County’s territorial boundaries or within any of the “plethora of police and other law enforcement agencies.” The court finds that the DNA testing statute does not require the state to get an affidavit of no testable evidence from every laboratory and police agency in the region. Rather, the state must “deliver the evidence to the court, along with a description of the condition of the evidence” or “explain in writing to the court why the state cannot deliver the evidence to the court,” according to C.C.P. Art. 64.02(2). Here, the state said there was no testable DNA. Caddie did not complain to the trial court that the state’s affidavits left open the possibility that evidence existed elsewhere, and he pointed to no evidence to support his contention. Without a showing of any basis for such a possibility in the trial court, the court concludes that the evidence before the trial court was sufficient to support its finding. OPINION:Bland, J. Radack, CJ, Bland and Christopher, JJ.

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