Opinion
12-22-00265-CR
06-30-2023
ERNEST LAROE MAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
DO NOT PUBLISH
APPEAL FROM THE 159TH DISTRICT COURT ANGELINA COUNTY, TEXAS (Tr.Ct.No. CR-29-247)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
PER CURIAM
Ernest Laroe May appeals the denial of his motion for post-conviction DNA testing.Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm the trial court's order.
See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West 2018).
Background
Appellant was convicted of indecency with a child by exposure and indecency with a child by contact, and this Court affirmed his convictions. See May v. State, No. 12-10-00284-CR, 2011 WL 1198968 (Tex. App.-Tyler Mar. 31, 2011, no pet.) (mem. op., not designated for publication). Appellant subsequently filed a motion for post-conviction DNA testing, in which he sought testing of the victim's pants for DNA evidence. The State responded that the Hudson Police Department confirmed that no pants were taken into evidence and indicated that the only evidence collected in the case consisted of a five-dollar bill and pictures. Additionally, the State responded that no items were collected or submitted for DNA testing. The trial court signed an order denying Appellant's motion, and this appeal followed.
Analysis Pursuant To Anders v. California
Appellant's counsel filed a brief in compliance with Anders and Gainous, stating that he diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. Counsel further states that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel's brief presents a chronological summation of the procedural history of the case and states that counsel is unable to raise any arguable issues for appeal.
"[T]he principles of Anders should be extended to include proceedings under Chapter 64 of the code of criminal procedure." Murphy v. State, 111 S.W.3d 846, 848 (Tex. App.-Dallas 2003, no pet.).
In compliance with Kelly v. State, Appellant's counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant's review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Thereafter, Appellant filed a pro se brief, in which he argues that the police department denied him meaningful procedures to prove mistaken identity by failing to collect the victim's pants into evidence. We reviewed the record for reversible error and found none. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
Appellant's pro se brief also attempts to collaterally attack his conviction by contending that various errors occurred during trial. Article 11.07 of the Texas Code of Criminal Procedure provides the exclusive means to challenge a final felony conviction, and jurisdiction to grant post-conviction habeas corpus relief on a final conviction rests exclusively with the Court of Criminal Appeals. Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); see TEX. CODE CRIM PROC. ANN. art. 11.07, § 3 (West Supp. 2022).
Conclusion
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversible error, we grant counsel's motion for leave to withdraw and affirm the trial court's judgment. See TEX. R. APP. P. 43.2.
Appellant's counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion, or if a motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22.
JUDGMENT
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that the order of the court below should be affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the court below be in all things affirmed, and that the decision be certified to the court below for observance.