Opinion
No. 05-03-01043-CR
Opinion Filed September 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-02024-RU. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
In this appeal, Adali Martinez Mercado appeals the trial court's determination to deny his request for post-conviction DNA testing. Appointed appellate counsel has filed a brief with this Court concluding appellant's appeal is frivolous. Because we agree with counsel's determination, we will affirm. We will, however, modify the trial court's order to correct a clerical error. In 1996, a jury convicted appellant of aggravated assault and assessed punishment, enhanced by a prior felony conviction, at seventy-five years confinement. Appellant's appeal to this Court was unsuccessful. In 2002, appellant filed a motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. Art. 64.01, et seq. (Vernon Supp. 2004). In its response, the State informed the trial court that two bloodstained items, an acrylic fingernail and a cloth, remained in its possession. After identifying the items, the State urged the trial court to deny testing because the testing, even with the most favorable outcome, would not exonerate appellant. The trial court agreed with the State and issued its order denying the testing. Appellant now appeals the trial court's order denying his request for post-conviction DNA testing. During the appeal, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). 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). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Although not grounds for a meritorious appeal, we observe that the trial court's order incorrectly states the cause number for this case. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Because the necessary information, the correct cause number, is available, we modify the trial court's May 19, 2003 order denying post-conviction DNA testing to reflect the correct cause number is F96-02024-RU. As modified, we affirm the trial court's order denying post-conviction DNA testing.