Opinion
No. 05-04-00472-CR
Opinion Filed June 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-77158-R. Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Calvin Dewayne Warren appeals the trial court's order denying post-conviction DNA testing. Before addressing the merits of the appeal, we first determine whether appellant filed a timely notice of appeal. See Tex.R.App.P. 25.2(b). The trial court signed its order on February 9, 2004. Thus, appellant's notice of appeal was due on or before March 10, 2004. See Tex.R.App.P. 26.2(a)(1). On March 4, 2004, appellant filed a letter requesting counsel be appointed "to represent me on appeal for DNA testing." After the deadline for filing notice of appeal expired, newly-appointed counsel filed a form notice of appeal on appellant's behalf. In letter briefs requested by the Court, appellant contends the March 4th letter was his notice of appeal and the form notice was filed to document the appointment of counsel. In a supplemental reporter's record filed with the Court, the trial court affirms it treated the March 4th letter as a notice of appeal. The State responds that the March 4th letter does not necessarily demonstrate a desire to appeal, but the State concedes the Court has held to the contrary in an unpublished opinion. See Simon v. State, No. 05-02-00091-CR (Tex.App.-Dallas Mar. 12, 2003, pet. ref'd as untimely filed) (not designated for publication). The State urges us to reconsider the Simon decision. Because Simon has no precedential value, we need not reconsider it. See Tex.R.App.P. 47.7. We do, however, find Simon to be persuasive. We conclude that appellant's request for the appointment of appellate counsel necessarily indicated his desire to appeal. Appellant having invoked our jurisdiction, we will affirm the trial court's order. In 1997, appellant entered a guilty plea to the offense of aggravated sexual assault. The trial court deferred adjudication of his guilt and placed him on community supervision for ten years. Later that year, the trial court adjudicated appellant guilty and sentenced him to a term of confinement. Appellant did not appeal his conviction. In 2001 and 2002, appellant filed motions requesting post-conviction DNA testing on unspecified biological evidence. See Tex. Code Crim. Proc. Ann. Art. 64.01, et seq. (Vernon Supp. 2004-05). The State filed a response urging the trial court to deny testing. The trial court entered an order denying testing on two grounds. First, because appellant had pleaded guilty rather than request pretrial testing, the trial court concluded appellant had failed to show he was denied testing through no fault of his own. Secondly, the trial court found identity was not at issue because the victim, a relative, knew appellant. On 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). See Murphy v. State, 111 S.W.3d 846, 849 (Tex.App.-Dallas 2003, no pet.). 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 did not file a pro se response, but he did file a short letter enclosing a notarized statement from the victim asserting appellant is innocent. The victim's statement does not appear in the appellate record. We may not consider evidence from outside the record, and appellant may not supplement the appellate record with affidavits submitted for the first time on appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004); Ramirez v. State, 104 S.W.3d 549, 551 n. 9 (Tex.Crim.App. 2003). Moreover, the jurisdiction granted to us under Chapter 64 is limited to review of the trial court's findings on DNA testing. See Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.). Thus, we cannot consider the statement as evidence in this proceeding. 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. We affirm the trial court's order.