Opinion
No. 05-10-01628-CR No. 05-10-01629-CR
03-19-2012
KENNETH KEVIN PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 19, 2012
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F94-44233-R, F94-44234-R
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion By Justice Murphy
Kenneth Kevin Phillips was convicted in September 1995 on his guilty pleas of aggravated sexual assault of a child younger than fourteen years and sexual assault of a child younger than fourteen years. The trial judge sentenced appellant to seventeen years' imprisonment in each case and assessed fines of $750 and $500, respectively. No appeals were taken from the plea-bargained convictions. In December 2009, appellant filed motions for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The State responded that there was no evidence to test. The trial judge denied the motions, and these appeals followed.
Appellant's attorney filed a brief in which she concludes the appeals are 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.
Appellant filed a pro se response that attempts to raise issues unrelated to post-conviction DNA testing. A court of appeals is not required to address the merits of claims raised in a pro se response. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases). Rather, the court's duty is to determine whether there are any arguable issues; if so, the appellate court's duty is to remand the case to the trial court so new counsel may be appointed to address those issues. Id.
After reviewing counsel's brief, appellant's pro se response, and the record, we agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeals of appellant's request for DNA testing.
We affirm the trial court's orders denying the motions for post-conviction DNA testing.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101628F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH KEVIN PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01628-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F94- 44233-R).
Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's order denying the motion for post- conviction DNA testing is AFFIRMED.
Judgment entered March 19, 2012.
MARY MURPHY
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KENNETH KEVIN PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01629-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F94- 44234-R).
Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's order denying the motion for post- conviction DNA testing is AFFIRMED.
Judgment entered March 19, 2012.
MARY MURPHY
JUSTICE