Opinion
Nos. 05-03-01605-CR, 05-03-01606-CR
Opinion Filed February 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F97-22035-MQ, F96-23672-VQ. Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Leopoldo Galang Lising was convicted, on his non-negotiated guilty pleas, of aggravated sexual assault and sexual assault. The trial court assessed punishment at thirty years confinement for aggravated sexual assault and twenty years confinement for sexual assault. This Court affirmed appellant's convictions in an unpublished opinion. In 2002, appellant filed a motion seeking post-conviction DNA testing. The trial court denied appellant's motion on the ground the identification of appellant as the perpetrator of the offenses was not at issue. Appellant now appeals the trial court's order denying testing. Appellant's attorney filed a brief in which he concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See Murphy v. State, 111 S.W.3d 846, 849 (Tex.App.-Dallas 2003, no pet.). 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). Appellant has filed two pro se responses to counsel's brief contending arguable issues exist regarding violations of his right to due process of law and equal protection and whether he received ineffective assistance of counsel. Finding no arguable issues, we affirm. Appellant first contends the trial court violated his rights to due process and equal protection of the law by requiring him to meet all of the statutory prerequisites for DNA testing. Appellant concedes his motion does not specify the evidence to be tested and, therefore, that the trial court did not abuse its discretion in denying his motion. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). Nevertheless, appellant contends the trial court should have ordered DNA testing anyway because he could show the State possessed testable evidence and he would not have been prosecuted or convicted if the evidence had been presented and tested. To support his contention, appellant alleges the State has evidence in the form of medical reports and evidence produced by "biological testing" of the victim during her medical examination. Appellant contends the reports show the victim was not sexually active and the biological evidence could be compared with his existing DNA samples taken in prison. In its response to appellant's motion for testing, the State indicated that it had not yet determined whether it retained any evidence that could be tested. Assuming, without deciding, that the State retains testable evidence, appellant's argument still fails. The trial court denied testing on the ground that identity was not at issue in appellant's case. A showing that identity was or is at issue is a statutory prerequisite to ordering post-conviction DNA testing. See Act of April 3, 2001, 77th Leg., R.S., ch. 3, § 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. Art. 64.03(a)(1)(B) (Vernon Supp. Pamph. 2004-05)). Contrary to appellant's assertions, the testing statute mandates that testing may not be ordered unless the statutory prerequisites are satisfied. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002); Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). The record shows the victim of appellant's cases was his stepdaughter A.L. During the plea hearing, appellant pleaded guilty and testified he had sexually assaulted A.L. numerous times over a period of one-and-a-half years. A.L. did not testify, but her therapist described the offenses A.L. had divulged during therapy. Under these circumstances, identity was not at issue and, therefore, the trial court properly denied appellant's motion. See In re McBride, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.). See also Eubanks, 113 S.W.3d at 565. Therefore, we conclude appellant's due process and equal protection complaint does not raise an arguable issue for appeal. In his second ground, appellant contends he received ineffective assistance of counsel because counsel did not inform him of the existence of biological evidence until after he had entered his guilty plea, advised him to plead guilty even though counsel had represented him in a previous case involving a recanted accusation by A.L., and counsel had an adverse financial interest in that counsel wanted to acquire appellant's custom van. Chapter 64 confers jurisdiction on this Court to review the trial court's findings in the post-conviction DNA testing proceeding. See Tex. Code Crim. Proc. Ann. Art. 64.05 (Vernon Supp. 2004-05); Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.). Chapter 64 does not confer jurisdiction upon this Court to entertain collateral attacks on the trial court's judgment or to revisit matters, such as a complaint about ineffective assistance of counsel, that should have been raised on direct appeal. Lopez, 114 S.W.3d at 714. Therefore, we dismiss appellant's second ground for want of jurisdiction. We have reviewed the record, counsel's brief, and both of appellant's pro se responses. We agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeals. We affirm the trial court's judgments.
Article 64.03(a) was amended in 2003. See Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 3, 2003 Tex. Gen. Laws 16, 16-17. The 2003 legislation provided that it would apply only to motions for DNA testing filed after its effective date. The prior statute would continue in effect for motions filed prior to the effective date. Because appellant filed his motion before the effective date of the 2003 amendment, we cite to the 2001 version of article 64.03(a).