Billy Joe Riggins v. The State of Texas--Appeal from 132nd District Court of Scurry County

11th Court of Appeals

Eastland, Texas

Opinion

Billy Joe Riggins

Appellant

Vs. No. 11-03-00307-CR B Appeal from Scurry County

State of Texas

Appellee

This is an appeal pursuant to TEX. CODE CRIM. PRO. ANN. art. 64.05 (Vernon Pamph. Supp. 2004) from the trial court=s denial of a postconviction motion for DNA testing. We affirm.

Billy Joe Riggins was originally convicted of burglary of a habitation and aggravated sexual assault. Punishment was assessed at confinement for life for each offense. Both convictions were affirmed by this court on direct appeal.[1]

Appellant=s court-appointed counsel has filed a brief in which she states that, after a thorough and professional examination of the record, there are insufficient grounds to sustain this appeal. Following the requirements in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has briefed one arguable point of error in which she contends that the trial court erred in denying the motion for DNA testing.

It is undisputed that the items admitted into evidence at the trial on the merits that contained biological evidence were a pair of black Levi pants and a white T-shirt worn by appellant and a pink gown with white flowers worn by the victim. It is further undisputed that the biological material was feces. The victim had testified at trial that she had had diarrhea at the time of the assault.

Pursuant to TEX. CODE CRIM. PRO. ANN. art. 64.01 (Vernon Pamph. Supp. 2004), appellant alleged that various pieces of biological evidence were in the State=s possession and that the evidence had not been subject to prior DNA testing. Appellant requested that the evidence now be tested.

In its response to the trial court=s order upon receipt of the motion for DNA testing, the State alleged that the Scurry County District Clerk had possession of the pants, white T-shirt, and gown and that these items had been stored since the time of trial in paper grocery sacks in a closet with no temperature controls. While the closet was not accessible to the general public, the evidence had not been subjected to a sufficient chain of custody to establish that it had not been altered, tampered with, replaced, or substituted. In addition, no evidence sent to the Texas Department of Public Safety Crime Laboratory was preserved or frozen by the laboratory.

Counsel states in her brief that, while identity was in issue at the trial on the merits, the evidence did not exist in a condition that would make DNA testing possible and that the evidence had not been subjected to a sufficient chain of custody. Moreover, counsel points out that, if the feces was determined to be that of a third person, appellant still would not have established by a preponderance of the evidence that he would not have been convicted. Counsel concludes that the trial court did not err in denying appellant=s motion under the requirements of Article 64.01. We agree. The point of error is overruled.

Counsel raises but does not brief two more points of error: that the trial court erred by failing to hold an evidentiary hearing and that appellant was denied the effective assistance of counsel. In Rivera v. State, 89 S.W.3d 55, 58 (Tex.Cr.App.2002), the Court of Criminal Appeals held that A[n]othing@ in the applicable statute required the trial court to conduct a hearing on a motion for postconviction DNA testing. A review of the record before this court does not reflect that appellant was denied effective assistance of counsel during his claim for DNA testing. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991). These points are overruled.

Counsel has furnished appellant with a copy of the brief and has 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, supra; Stafford v. State, supra; 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, supra.

Following the procedures outlined in Anders, we have independently reviewed the record. We agree that the appeal is without merit.

The order of the trial court is affirmed.

PER CURIAM

April 8, 2004

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

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

Wright, J., and McCall, J.

[1]Billy Joe Riggins v. State, Nos. 11-91-00045-CR & 11-91-00046-CR (Tex.App. - Eastland, February 27, 1992, pet=n ref=d)(unpublished opinion).