Opinion
Nos. 09-06-107-CR, 09-06-108-CR
Submitted on December 7, 2006.
Opinion Delivered January 31, 2007. DO NOT PUBLISH.
On Appeal from the 75th District Court, Liberty County, Texas, Trial Cause Nos. 22,125 and 22,126.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
In two separate proceedings before the trial court, appellant Jerry Hannah pled nolo contendere to indecency with a child and aggravated sexual assault of a child. Pursuant to plea bargains, the trial court sentenced Hannah to eight years of imprisonment and a $1,500.00 fine in each case. Hannah filed a pro se motion seeking post-conviction DNA testing in both cases. The trial court denied Hannah's motion. In its order denying the motion, the trial court found that "Applicant's Motion does not follow the guidelines of Article 64.01 of the Texas Code of Criminal Procedure[.]" Hannah then filed these appeals, in which he contends the trial court abused its discretion by denying his motions for post-conviction DNA testing. We affirm. The State contends this Court lacks jurisdiction of Hannah's appeals because the trial court's order denying Hannah's motion for DNA testing was signed on January 6, 2006, but Hannah did not file his notices of appeal until February 10, 2006. See Tex. R. App. P. 26.2(a)(1). The record reflects that on January 4, 2006, Hannah mailed his notices of appeal, albeit to the clerk of the First Court of Appeals rather than the clerk of the trial court. However, because the trial court clerk received Hannah's notices of appeal within ten days of the due date, we find that we have jurisdiction over these appeals. See Tex. R. App. P. 9.2(b); Tex. R. App. P. 25.2(c)(1). Article 64.01(a) of the Texas Code of Criminal Procedure provides as follows: "A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion." Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon 2006). Here, Hannah's application for post-conviction DNA testing did not include an affidavit, sworn to by Hannah, that identified the biological material to be tested. See id. Therefore, the trial court did not abuse its discretion by denying Hannah's motion for post-conviction DNA testing. We overrule Hannah's sole issue and affirm the trial court's judgment. AFFIRMED.
After Hannah filed pro se briefs, appellate counsel was appointed to represent him in these appeals. Appellate counsel subsequently filed a brief on the merits for both appeals on Hannah's behalf. Therefore, we will consider only the brief filed by Hannah's counsel. See generally Landers v. State, 550 S.W.2d 272, 278 (Tex.Crim.App. 1977) (There is no right to hybrid representation in Texas.).