Roger De La Fuente v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-02-00500-CR; 04-02-00501-CR & 04-02-00502-CR
Roger DE LA FUENTE,
Appellants
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 1991CR1521; 1991CR4271 & 1991CR4363
Honorable Sharon MacRae, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 2, 2003

AFFIRMED

Roger De La Fuente pled guilty and was convicted of murder, burglary of a building, and attempted burglary of a building in February of 1992. In November of 2001, De La Fuente filed a motion for forensic DNA testing in each of the underlying causes pursuant to article 64 of the Texas Code of Criminal Procedure. The State responded to the motion, stating that the evidence De La Fuente sought to test was destroyed in March of 1999. Article 64.03 only requires a trial court to order DNA testing if the court makes a finding that the evidence sought to be tested still exists. Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2003). In addition, the convicted person must establish by a preponderance of the evidence that: (a) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and (b) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2003).

De La Fuente's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeal has no merit. Counsel provided De La Fuente with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. With regard to the issues raised in De La Fuente's pro se brief, we believe these issues are without merit in view of existing precedent. See Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002); Dinkins v. State, 84 S.W.3d 639 (Tex. Crim. App. 2002); Johnston v. State, No. 06-02-00114-CR, 2003 WL 245281 (Tex. App.--Texarkana Feb. 5, 2003, no pet. h.); Watson v. State, 96 S.W.3d 497 (Tex. App.--Amarillo 2002, pet. ref'd); Mahaffey v. State, 937 S.W.2d 53 (Tex. App.--Houston [1st Dist.] 1996, no pet.). The judgments of the trial court are affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. L pez, Chief Justice

DO NOT PUBLISH