Juan Cerda Garza v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00543-CR
Juan Cerda GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-5875
Honorable Sid L. Harle, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: April 21, 2004

AFFIRMED

Juan Cerda Garza ("Garza") appeals the trial court's order denying his renewed motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Garza'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 Garza 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.). Garza has not filed a pro se appellant's brief.

The sole issue that was raised by Garza's renewed motion for forensic DNA testing was whether Garza was entitled to have the biological material that was collected in this case re-tested for a possible DNA comparison. Article 64.03 of the Texas Code of Criminal Procedure permits a trial court to order forensic DNA testing only if the court finds a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2004). The trial court may reach a decision without conducting a hearing or requiring the State to accompany its response with affidavits. See Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002), cert. denied, 124 S. Ct. 27 (2003); see also Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). Although an affidavit was not required, the State submitted the affidavit of its quality assurance manager and custodian of records for the Bexar County Criminal Investigation Laboratory, as well as laboratory reports that were generated in 1998 and 1999 during the initial investigation of the homicide and in response to Garza's first motion for DNA testing. Garza presented no evidence that additional physical evidence containing biological material exists, or that additional tests performed on the existing evidence would produce results that are different from those obtained in 1998 or 1999.

We have reviewed the record in this appeal, and counsel's brief. We agree 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, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177 n.1. If Garza desires to file an application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, he must file the application in the trial court of conviction. Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon Supp. 2004).

Phylis J. Speedlin, Justice

DO NOT PUBLISH