Opinion
No. 04-03-00503-CR.
Delivered and Filed: March 31, 2004. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 1988-CR-2940, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Julian P. Dominguez ("Dominguez") appeals the trial court's order denying his motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Dominguez's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeal has no merit. Counsel provided Dominguez with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App.-San Antonio 1996, no pet.). Dominguez filed an application for a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure as his pro se "appellant's brief" and several supplemental briefs raising numerous issues. The trial court denied Dominguez's motion on the ground that there is no evidence available to be tested. Article 64.03 of the Texas Code of Criminal Procedure only permits a trial court to order forensic DNA testing if the court finds the evidence still exists and is in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A) (Vernon Supp. 2004). The trial court may reach a decision on whether the evidence still exists without conducting a hearing or requiring the State to accompany its response with affidavits. See Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App. 2002), cert. denied, 124 S.Ct. 27 (2003); see also Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Although an affidavit was not required, the State submitted the affidavit of its investigator with its response stating that such evidence no longer exists. We have reviewed the record in this appeal, counsel's brief and Dominguez's pro se briefs. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n. 1. If Dominguez desires to file an application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, he must file the application in the trial court of conviction. Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b) (Vernon Supp. 2004).