Israel Williams, Jr. v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ISRAEL WILLIAMS, JR., )

) No. 08-05-00040-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court #3

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-9100786-WJ)

)

O P I N I O N

Appellant Israel Williams, Jr. appeals the trial court=s order dismissing his motion for post-conviction DNA testing.[1] The trial court certified that this is not a plea-bargain case and that Appellant has the right of appeal.

Appellant=s court-appointed counsel has filed an Anders brief in which she has concluded that the appeal is wholly frivolous and without merit. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967). An attorney may file an Anders brief in an appeal of a trial court=s ruling on a post-conviction motion for DNA testing. Murphy v. State, 111 S.W.3d 846, 847-48 (Tex.App.--Dallas 2003, no pet.); see also Watkins v. State, 155 S.W.3d 631, 634 (Tex.App.--Texarkana 2005, no pet.).

DISCUSSION

ANDERS BRIEF

Chapter 64 of the Code of Criminal Procedure provides that a convicted person may file in the convicting court a motion for forensic DNA testing of evidence containing biological material. See Tex.Code Crim.Proc.Ann. art. 64.01(a)(Vernon Supp. 2005). The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. Id. Counsel states that she has examined Appellant=s DNA motion and notes that it failed to specify any evidence to be tested, but only requests testing of Aall evidence containing BIOLOGICAL MATERIAL . . . .@ The motion also alleged that the interests of justice required that the unspecified evidence be tested. Further, Appellant=s attached affidavit verified the allegations contained in the motion and also included the following allegation:

In my case, I am actually innocence [sic] of the allege offense. No fingerprints match my prints. No weapons were found linked to me to this case. Sample of my blood and my fingerprints are available for testing. I offer same for analysis. I pray for relief.

In the trial court=s order it specifically found that: (1) Ano reasonable grounds exist for the filing of a motion for DNA testing in this case and therefore no attorney will be appointed;@ (2) Athe motion fails to meet the requirements set forth in Article 64.01 of the Code of Criminal Procedure and should not be considered;@ (3) Athe defendant=s sworn affidavit accompanying the motion fails to contain statements of fact in support of the motion as required by Article 64.01(a) of the Code of Criminal Procedure;@ and (4) Athe motion fails to state what biological material, if any, was secured in relation to the offense.@

Counsel has reviewed the appellate record in this case and determined that the motion filed does not specify any evidence to be tested, nor does the motion or affidavit allege any facts which, if true, would show that Appellant would not have been convicted if exculpatory results had been obtained through DNA testing. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002)(motion must specify evidence and provide statements of fact to demonstrate entitlement to relief requested). Moreover, after reviewing the trial record, counsel has concluded that it is extremely unlikely that any evidence exists which could be tested pursuant to Chapter 64 and if it should exist, testing would be unlikely to exonerate Appellant regardless of the outcome.

The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Counsel has also filed a motion to withdraw, has served a copy of the brief to Appellant, and has informed Appellant of his right to review the record and to file a pro se response. Appellant filed a pro se brief on October 31, 2005.

PRO SE BRIEF

In Appellant=s pro se brief, he raises twelve issues on appeal. However, eleven of these issues are related to his original conviction for possession of cocaine with intent to deliver and are not cognizable in a Chapter 64 appeal. See Tex.Code Crim.Proc.Ann. art. 64.05; Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App. 2003)(Article 64.05 permits an appeal under Chapter 64). Thus, we lack jurisdiction to consider the issues Appellant raises which challenge his original conviction.

In the remaining issue, Appellant asserts that appellate counsel was ineffective for filing an Anders brief. To establish that he received ineffective assistance of counsel, Appellant must show that (1) counsel=s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his counsel=s error, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Appellant contends that after reviewing the trial record, he has found that a number of arguable grounds for appeal do exist and that such grounds are non-frivolous and were based, in part, on objections made by trial counsel. As noted above, we do not have jurisdiction to consider any challenges to the original conviction, therefore Appellant=s counsel was not ineffective for failing to raise issues based on errors, if any, that occurred at trial. Appellant=s issues are overruled.

INDEPENDENT REVIEW

We have carefully reviewed the entire appellate record and counsel=s brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal. We affirm the trial court=s order.

January 26, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] The record shows that the underlying offense for which Appellant was convicted was possession with the intent to deliver a controlled substance, to wit: cocaine, in an amount by aggregate weight including any adulterants or dilutants of less than 28 grams. Appellant appealed his conviction, which was affirmed in 1992.