Opinion
No. 14-03-01219-CR.
Opinion filed February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 855,928. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
Appellant entered a plea of not guilty to the offense of murder. He was convicted by a jury of that offense, and on October 24, 2001, the trial court sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. On direct appeal, this court affirmed appellant's conviction. See Gray v. State, 14-01-01184-CR (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (not designated for publication). On February 17, 2003, appellant filed a motion for forensic testing, asserting that DNA testing would establish he was not at the crime scene and he did not commit the murder for which he was convicted. See TEX. CODE CRIM. PROC. ANN. art. 64.01-64.05 (Vernon Supp. 2003). Counsel was appointed, who filed a motion for post-conviction DNA testing, which was opposed by the State. On September 19, 2003, the trial court adopted the State's findings of fact and denied DNA testing. Appellant filed a timely written notice of appeal. Appellant's appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). A copy of counsel's brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). On January 28, 2004, appellant filed his response to the Anders brief. In his response, appellant raises five points of error. First, he asserts the evidence was factually insufficient to support his conviction. This court held the evidence was factually sufficient on direct appeal. Gray, slip op at 3. Appellant's remaining points challenge the denial of DNA testing, asserting the evidence was in the possession of the State, there was no previous DNA testing through no fault of appellant, DNA testing would show a reasonable probability that appellant would not have been prosecuted or convicted, and that the identity of the assailant is at issue in the case. Although appellant failed to file a sworn affidavit containing facts in support of his motion as required by the statute, the motion filed by appellant's appointed counsel satisfied the statutory requirements. See TEX. CODE CRIM. PROC. ANN. art. 64.01(b)(1) (Vernon Supp. 2003). The State filed a response, denying that identity was an issue in the case and that a reasonable probability existed that appellant would not have been prosecuted or convicted if exculpatory DNA evidence had been obtained because appellant confessed to the crime. A copy of appellant's statement from the underlying case was attached to the motion. A trial court may dispose of an applicant's request by reviewing the State's response and the applicant's affidavit. Rivera v. State, 89 S.W.3d 55, 58 (Tex.Crim.App. 2002). The trial court made a finding that appellant failed to show that identity was an issue in the primary case or that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(ii)(B), 2(A) (Vernon Supp. 2003). Appellant signed a written confession admitting he shot the complainant. We agree that any exculpatory inference arising from DNA testing would not "conclusively outweigh the other evidence" of appellant's guilt. See Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We conclude all of appellant's issues are without merit. We have carefully reviewed the record, counsel's brief, and appellant's response, and we agree the appeal is wholly frivolous and without merit. We find no reversible error in the record. Further discussion of the brief and response would add nothing to the jurisprudence of the state. Accordingly, the judgment of the trial court is affirmed. All pending motions are denied as moot.