Opinion issued July 2, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-00226 -CR
___________
FRANK ANTHONY PICONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 685060
MEMORANDUM OPINION
Appellant, Frank Anthony Picone, appeals from the convicting court's order denying his post conviction DNA testing in trial court cause number 685060. In its order the convicting court stated:
The Court finds that the applicant fails to allege sufficient facts to show that any of the remaining evidence could be subjected to DNA testing which would produce exculpatory results relevant to the facts of the primary case.
The Court finds that the applicant fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing of the remaining biological evidence in this case. Tex. Code Crim. Proc. Ann. Art. 64.03.
The Court, based on its findings that the applicant fails to meet the requirements of Tex. Code Crim. Proc. Art. 64.03, DENIES the applicant's request for DNA testing in cause number 685060.
Appellant's counsel on appeal has filed a brief stating that the record presents no reversible error, that the appeal is without merit and is frivolous, and that the appeal must be dismissed or affirmed. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978).
Counsel represents that he has served a copy of the brief on appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. Having reviewed the record and counsel's brief, we agree that the appeal is frivolous and without merit and that there is no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
We affirm the convicting court's order denying DNA testing and grant counsel's motion to withdraw. (1) Attorney Danny Easterling must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court.
PER CURIAM
Panel consists of Justices Jennings, Alcala, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
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