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Click here for the full text of this decision FACTS:Matthew Raymond Lewis appeals the denial of his request for a court appointed attorney to assist him in filing a post-conviction motion for forensic DNA testing, and the denial of his motion for DNA testing. In 2002, Lewis was indicted for the sexual assault of a minor under the age of 17, and, in a separate count, for aggravated sexual assault of a second minor under the age of 14. Lewis entered a plea of guilty to both counts and was sentenced by the trial court to incarceration in the Texas Department of Criminal Justice, Institutional Division, for a period of 11 years. Nineteen months later, Lewis, acting pro se, filed a motion for DNA testing of evidence secured in relation to his conviction of sexual assault, a sworn affidavit in support of the motion, a request for the appointment of an attorney, a declaration of inability to pay costs and an affidavit of indigence. Lewis requested that all the motions be set for a hearing. The trial court asked for a response from the district attorney’s office in Kerr County. Sergeant John Lavender, the evidence officer for the Kerr County Sheriff’s office, and Ronald L. Sutton, the district attorney for Kerr County, filed sworn affidavits which stated, “The evidence in the above-mentioned case was destroyed after the Defendant’s plea of guilty to one count of sexual abuse of a child and one count of aggravated sexual assault of a child with two different victims and the appeal time limit had expired.” Without holding a hearing, the trial court subsequently denied Lewis’ motion for DNA testing, noting that Lewis entered a voluntary plea of guilty to the offenses and that there “was and is no issue of identity as required by Article 64 of the Texas Code of Criminal Procedure.” The court further found, “based on the affidavit of John Lavender, evidence officer for the Kerr County Sheriff’s Department, the evidence referenced in Defendant’s motion no longer exists.” Lewis filed a pro se appeal to this court. HOLDING:Affirmed. Affidavit testimony from a relevant witness that no biological evidence from the case is maintained or possessed is sufficient, absent any contrary evidence, to support denial of a motion for forensic DNA testing. Shannon v. State, 116 S.W.3d 52, 55 (Tex. Crim. App. 2003). Such a determination may be made by the trial court without an evidentiary hearing. Here, the trial court had before it the affidavits of the evidence officer and district attorney stating that “[t]he evidence in the above-mentioned case was destroyed after the Defendant’s plea of guilty . . . and the appeal time limit had expired.” Therefore, on this record, the trial court could have reasonably concluded that the biological evidence referenced in Lewis’ motion no longer exists. Lewis contends that no assault occurred because the minor was sexually promiscuous, lied about her age and did not want to file sexual assault charges. Even if true, none of these claims exonerate Lewis. Assuming the minor was sexually promiscuous with other males, the presence of another person’s DNA at the crime scene will not, without more, constitute affirmative evidence of appellant’s innocence. Moreover, Lewis confessed to the crime for which he was convicted; his identity was never an issue. Accordingly, the trial court could have reasonably concluded that there was and is no issue of identity in this case. The court concludes that Lewis was not entitled to appointed counsel under Texas Code of Criminal Procedure Article 64.01(c). Lewis claims the state violated the Texas Code of Criminal Procedure when it failed to preserve the biological evidence from his case, or notify him by mail before destroying the evidence. In essence, Lewis seeks habeas corpus relief. The Code of Criminal Procedure does not authorize an appeal to a court of appeals for allegations that the state improperly destroyed DNA evidence; nor does a court of appeals have original jurisdiction to grant a writ of habeas corpus in criminal law matters. Lewis complains that the trial court improperly denied his request for DNA testing based on his plea of guilty to the underlying charges. Lewis was not barred from filing his motion for DNA testing. In addition, the trial court did not deny Lewis’ motion solely on the basis of his plea. The trial court reasonably found that Lewis’ motion failed to meet two of the preconditions to obtaining post-conviction DNA testing under Chapter 64, specifically, that the evidence still exists and that identity is or was an issue in the case. OPINION:Speedlin, J.; L�pez, CJ, Stone and Speedlin, JJ.

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