NUMBER 13-03-032-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
MANUEL BELTRAN, JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 230th District Court
of Harris County, Texas.
__________________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez
On January 5, 1988, appellant, Manuel Beltran, Jr., was convicted of aggravated kidnapping. Sentence was imposed at sixty years in the Texas Department of Criminal Justice, Institutional Division. On February 21, 2002, appellant filed a motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01- .04 (Vernon Supp. 2004). A hearing was held on October 24, 2002, and the motion was denied. A second hearing was held on May 16, 2003 to supplement the record. This appeal is from the denial of appellant's motion. See id. at art. 64.05. Furthermore, the trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). We conclude that the appeal is frivolous and without merit and affirm the judgment of the trial court.
I. Facts
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
II. Anders Brief
Appellant's court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certified that he provided appellant with a copy of the brief. Counsel also advised appellant of his right to examine a copy of the appellate record and to file a brief on his own behalf. See id. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). More than thirty days have passed, and appellant has not filed a pro se brief. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.
An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Appellant's counsel has filed a brief in which he has concluded this appeal is wholly frivolous and without merit. Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. With citation to relevant legal precedent and the record, counsel professionally evaluates appellant's motion for DNA testing, and the State's response and supplemental response, which included a transcript of the trial testimony of appellant's brother as well as affidavits setting out what evidence had been destroyed in 1995 and what physical evidence remained. Counsel notes that the record reflects that the only evidence still available for DNA testing were the microscopic hairs in the possession of the Houston Police Department Crime Lab. Based on the testimony of appellant's brother, coupled with the statement he gave police shortly after the alleged offenses, and the absence of appellant's DNA in any of the hair samples available for testing, counsel concludes that the trial court did not err by denying appellant's request for retesting of the hair samples. Appellant was not able to show by a preponderance of the evidence a reasonable probability that exculpatory DNA testing of the remaining hair samples would have prevented either his prosecution or conviction. See Tex. Code Crim. Proc. Ann. art. 64.03(1)-(2) (Vernon Supp. 2004) (convicting court may order forensic DNA testing if court finds evidence still exists and is in condition making DNA testing possible, identity was or is an issue, and convicted person establishes by preponderance of evidence that reasonable probability exists that person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing). We conclude counsel's brief meets the requirements of Anders. Anders, 386 U.S. at 744-45; see High, 573 S.W.2d 812.
III. Independent Review of Record
The Supreme Court advised appellate courts that upon receiving a “frivolous appeal” brief, they must conduct “a full examination of all the proceeding[s] to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous.
IV. Conclusion
We conclude the appeal is without merit. The judgment of the trial court is affirmed.
V. Motion to Withdraw
Additionally, counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 13th day of May, 2004.