COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-269-CR

FELICIANO LOPEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Feliciano Lopez appeals from the trial court’s denial of his motion for DNA testing.  In his sole point, he complains that the trial court may have considered his guilty plea in denying the motion.  We will affirm.

Before a trial court may grant a motion for DNA testing, it is required to find, among other things, that appellant’s identity was in issue.   See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004-05).  In determining if appellant’s identity is in issue, the trial court may not base its decision solely on a guilty plea.   Id. art. 64.03(b).  In addition, the court must find that evidence still exists and is in a condition to make DNA testing possible.   Id. art. 64.03(a)(1).

In this case, appellant pleaded guilty to murder pursuant to a plea bargain agreement. In considering the motion for DNA testing, however, the trial court never reached the identity issue because it found no evidence existed that could be tested.  Appellant does not challenge this finding.

Thus, the trial court did not err by denying appellant’s motion for DNA testing.   See Shannon v. State , 116 S.W.3d 52, 55 (Tex. Crim. App. 2003). We overrule appellant’s point and affirm the trial court’s order.

PER CURIAM

PANEL F: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

DO NOT PUBLISH

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

DELIVERED: September 30, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4.