Opinion
No. 05-03-01727-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-70424-QT. Affirmed As Modified.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Freddy Aviles, Jr. a/k/a Freddie Antonio Ruiz-Aviles appeals the trial court's determination to deny his request for post-conviction DNA testing. Appointed appellate counsel has filed a brief with this Court concluding appellant's appeal is frivolous. Because we agree with counsel's determination, we will affirm. We will, however, modify the trial court's order to correct a clerical error. In 2001, a jury convicted appellant of aggravated sexual assault and assessed his punishment at forty years confinement. Appellant's conviction was affirmed on appeal. In 2003, appellant filed a motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. Art. 64.01, et seq. (Vernon Supp. 2004). In its response, the State informed the trial court that no biological evidence was collected due to the victim's delayed outcry. The State further responded that appellant's identity as the perpetrator was not at issue because the victim was appellant's stepson and appellant failed to show he was denied testing through no fault of his own. The trial court agreed with the State and issued its order denying the testing. Appellant now appeals the trial court's order denying his request for post-conviction DNA testing. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Although not grounds for a meritorious appeal, we observe that the trial court's order incorrectly states the cause number for this case. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Because the necessary information, the correct cause number, is available, we modify the trial court's September 30, 2003 order denying post-conviction DNA testing to reflect the correct cause number is F00-70424-QT. As modified, we affirm the trial court's order denying post-conviction DNA testing.