Opinion
No. 04-03-00607-CR
Delivered and Filed: October 27, 2004. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 1986-CR-1638, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's order denying a post conviction motion for forensic DNA testing. Javier Jose Torres was convicted of burglary of a habitation with intent to commit theft and was sentenced to prison for 99 years. Approximately seventeen years after the burglary, Torres filed a motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The State submitted the affidavit of the quality assistance manager for the Bexar County Criminal Investigation Laboratory with its response stating that there was no biological evidence in its possession or being maintained by the Bexar County Forensic Science Center. The State further submitted the affidavit of the supervisor of the chemistry laboratory at the University Hospital stating that they had no such evidence. The trial court denied Torres's motion on the ground that there is no available evidence to test. This appeal followed. Torres's court-appointed appellate attorney filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). A copy of counsel's brief was delivered to Torres, who was advised of his right to examine the record and to file a pro se brief. No pro se brief has been filed. We have reviewed the record in this appeal and the applicable law. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A) (Vernon Supp. 2004-05) (testing may be ordered only if court finds the evidence still exists and is in a condition making DNA testing possible). We agree that the appeal is frivolous and without merit. Accordingly, we affirm the judgment of the trial court. Furthermore, we grant appellate counsel's motion to withdraw. See Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.).