Opinion
No. 04-03-00625-CR.
Delivered and Filed: March 10, 2004. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 1985-CR-0740, Honorable Raymond Angelini, Judge Presiding. Motion to Withdraw Granted; Affirmed.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Appellant Larry Thompson was convicted of murder and sentenced to life in prison. His conviction was upheld on direct appeal in 1987. In 2003, Thompson filed a motion for DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Pro. art. 64.01, et seq. (Vernon Supp. 2004). The trial court appointed counsel to assist Thompson with his motion. Following the State's response, the trial court denied the motion for testing. Thompson appealed. See Tex. Code Crim. Pro. Ann. art. 64.05 (Vernon Supp. 2004). Thompson's court-appointed attorney on appeal filed a brief in which counsel concludes this appeal is frivolous and without merit. Counsel also filed a motion to withdraw. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Specifically, counsel states Thompson was provided with a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief if he wished. Thompson filed a pro se brief in which he asserts that he is entitled to a new trial because evidence produced at his murder trial is no longer in existence to be tested for DNA more than fifteen years after his conviction. Thompson bases his argument on caselaw regarding the destruction of evidence prior to trial. See California v. Trombetta, 467 U.S. 479, 488 (1984); McDonald v. State, 863 S.W.2d 541, 543 (Tex. App.-Houston [1st Dist.] 1993, no pet.). Thompson's claim is irrelevant to the question of whether the trial court erred in denying the motion for DNA testing. We reviewed the record and counsel's brief and agree the appeal is frivolous and without merit. In this case, because the evidence no longer exists, the trial court did not abuse its discretion in denying the motion. The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw filed by Thompson's counsel. See Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App.-San Antonio 1996, no pet.).
Counsel is reminded that he should detail the procedure for obtaining the record. See Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App.-San Antonio 1996, no pet.).
The evidence in this case was available for Thompson's trial and was in fact tested for blood comparison at that time.