Opinion
NO. 03-13-00122-CR
04-04-2014
George Robert Powell, III, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 63436, HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
On November 20, 2009, a jury convicted appellant George Robert Powell, III of aggravated robbery, found two enhancement allegations to be true, and assessed his punishment at twenty-eight years' imprisonment. On November 15, 2012, Powell filed a motion in the trial court for post-conviction DNA testing. On January 17, 2013, the trial court judge entered findings of fact, including a finding that the evidence that was supposed to be the subject of the DNA testing was no longer in existence, and denied Powell's motion. Powell appeals from the denial of his motion. Powell's appointed attorney has filed a brief concluding that the appeal is frivolous and without merit.
Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Anders, 386 U.S. at 743-44; High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Powell's attorney sent him a copy of the brief and advised him that he had the right to examine the record and file a pro se brief. See Anders, 386 U.S. at 744; Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim. App. 1972). No pro se brief has been filed.
After reviewing the evidence presented to the trial court and the procedures that were observed, we have found nothing in the record that might arguably support the appeal. We agree with counsel that the appeal is frivolous and without merit. We grant counsel's motion to withdraw and affirm the order denying post-conviction DNA testing.
No substitute counsel will be appointed. Should appellant wish to seek further review of his case by the court of criminal appeals, she must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. See generally Tex. R. App. P. 68-79 (governing proceedings in the Texas Court of Criminal Appeals). Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date this Court overrules the last timely motion for rehearing filed. See Tex. R. App. P. 68.2. The petition must be filed with this Court, after which it will be forwarded to the court of criminal appeals along with the rest of the filings in the cause. See Tex. R. App. P. 68.3, 68.7. Any petition for discretionary review should comply with rules 68.4 and 68.5 of the rules of appellate procedure. See Tex. R. App. P. 68.4, 68.5.
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David Puryear, Justice
Before Justices Puryear, Pemberton and Rose Affirmed Do Not Publish