Derek Mitchell Bailey v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-02-00424-CR
Derek BAILEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 94-0857-CR
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 18, 2003

AFFIRMED

Derek Bailey ("Bailey") appeals the trial court's order denying his motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Bailey'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 Bailey 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.).

Bailey filed several pro se briefs and supplemental briefs raising numerous issues; however, the trial court denied Bailey's motion on the ground that identity was not an issue in his case. Article 64.03 of the Texas Code of Criminal Procedure permits a trial court to order forensic DNA testing only if identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2003); see Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002).

We have reviewed the record in this appeal, the record from Bailey's trial, counsel's brief, and Bailey's pro se briefs. The State's theory at trial was that Bailey intentionally struck the victim in the head with an object, while Bailey's theory is that the victim accidentally fell, striking his head on the ground or some nearby object. Bailey testified that he was defending himself against the victim's attack when the victim fell, pulled Bailey on top of him, and struck his head on the ground or some nearby object. During closing argument, defense counsel stated, "I think there is no dispute that [Bailey] was there. There is no argument on that." Defense counsel further argued, "It is Mr. Bailey's contention and it is our position that this was an unfortunate accident and that it was an accident." We agree that identity was not and is not an issue in the case and that the appeal is frivolous and without merit. The judgment of the trial court is 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.

Catherine Stone, Justice

DO NOT PUBLISH