Marvin Bishop Payne v. The State of Texas--Appeal from 266th District Court of Erath County

11th Court of Appeals

Eastland, Texas

Opinion

Marvin Bishop Payne

Appellant

Vs. No. 11-02-00152-CR B Appeal from Erath County

State of Texas

Appellee

The trial court denied appellant=s Chapter 64[1] motion for post-conviction DNA forensic testing. We affirm.[2]

In her brief, appellant=s court-appointed counsel states that she has researched the law applicable to the facts and issues contained in this case and that she has concluded that the record reflects no reversible error. Counsel further states that appellant failed to meet two of the essential elements for relief under Chapter 64: establishing that identity was an issue and that there was a reasonable probability that appellant would not have been convicted or prosecuted had DNA testing been conducted.[3] Counsel has furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief. A pro se brief has not been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Following the procedures outlined in Anders, we have independently reviewed the record.

Appellant asked the trial court to take judicial notice of the trial on the merits and presented no further evidence. The District Attorney testified that, while spermatozoa was recovered from the victim, DNA testing was not requested because appellant had confessed to the sexual assault of the child and because there was a third-party eyewitness to the sexual assault. We agree that the appeal is without merit. Appellant failed to establish that identity was an issue or that he would not have been convicted had DNA testing been done.

The judgment of the trial court is affirmed.

PER CURIAM

March 20, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]TEX. CODE CRIM. PRO. ANN. art. 64.01 et seq. (Vernon Pamph. Supp. 2003).

[2]Article 64.05.

[3]Article 64.03.