Opinion
No. 10-04-00236-CR
Opinion delivered and filed February 22, 2006. DO NOT PUBLISH.
Appeal from the 252nd District Court, Jefferson County, Texas, Trial Court No. 74564. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the judgment but notes that by addressing Cormier's issues raised in his pro se brief in footnote 2, the majority disregards the teaching of Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).)
MEMORANDUM OPINION
Appellant Elroy Cormier was convicted of aggravated robbery. Punishment of seventy-five years in prison was assessed. The conviction was affirmed on appeal. Cormier filed a motion for postconviction DNA testing, which the trial court denied, noting that all items of evidence had been either released or destroyed. Appellant's counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cormier filed a pro se brief. We will affirm. Counsel, in his Anders brief, considers issues in areas relevant to an appeal of the denial of postconviction DNA testing: (1) the evidence in the underlying prosecution; (2) applicable statutes; and (3) other potential postconviction remedies. See Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-Waco 2001, no pet.). Counsel's brief contains references to both the record and applicable statutes, rules, and cases and discusses why counsel concludes that the record does not present any arguable issues. See id. We have conducted an independent review of the record to determine whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We determine there are none. Accordingly, we affirm the judgment. Counsel must advise Cormier of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.
According to Cormier, at the aggravated robbery trial, evidence was presented that Cormier used a knife to cut and stab the victim. In the postconviction DNA testing proceeding, the State presented evidence that all trial evidence had been released or destroyed. Cf. TEX. CODE CRIM. PROC. ANN. art. 38.43 (Vernon Supp. 2005) (providing for State's duty to preserve evidence containing biological material in certain cases). Cormier filed with us a third-party inmate's affidavit containing hearsay that a court reporter has the knife.
Cormier's assertion in his pro se brief that DNA testing of the knife will show that he did not wound the victim with the knife, contrary to the victim's trial testimony, does not present an arguable ground for appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). The postconviction DNA testing statute applies only in cases where the defendant's "identity was or is an issue in the case." TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B) (Vernon Supp. 2005). And we have no jurisdiction over a due process claim that the State destroyed material DNA evidence, which amounts to a request for habeas corpus relief. See Chavez v. State, 132 S.W.3d 509, 510 (Tex.App.-Houston [1st Dist.] 2004, no pet.); see also Johnston v. State, 99 S.W.3d 698, 702-03 (Tex.App.-Texarkana 2003, pet. ref'd) (to the extent appellant sought release because the State failed to preserve evidence possibly containing biological material, appellate court would have no jurisdiction to grant him that remedy) (citing Watson v. State, 96 S.W.3d 497, 500 (Tex.App.-Amarillo 2002, pet. ref'd)).