Manuel Cantu v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00388-CR
Manuel CANTU,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-1547
Honorable Raymond Angelini, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 22, 2004

AFFIRMED; MOTION TO WITHDRAW GRANTED

Manuel Cantu was convicted of aggravated sexual assault of a child and sentenced to forty years in prison. This court affirmed the conviction. Cantu v. State, 993 S.W.2d 712 (Tex. App.-San Antonio 1999, pet. ref'd). Subsequently, Cantu filed a post-judgment motion for forensic DNA testing under Chapter 64 of the Code of Criminal Procedure. The State filed a response, supported by affidavits, stating that "[t]here is no biological evidence maintained" in the cause. The trial court denied Cantu's motion and Cantu appealed.

Cantu's court-appointed appellate attorney filed a motion to withdraw and a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Cantu was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief. He has not done so.

We have reviewed the record and counsel's brief and agree the appeal is frivolous and without merit. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2003) (before ordering forensic DNA testing, trial court must find that evidence containing biological material, in a condition making DNA testing possible, exists); Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002) (trial court may decide motion for DNA testing without evidentiary hearing); Cravin v. State, 95 S.W.3d 506, 511 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (uncontroverted affidavits of relevant authorities that they no longer maintain or possess biological evidence from the case is sufficient to support denial of motion for forensic DNA testing). We therefore affirm the trial court's judgment and grant the motion to withdraw filed by Cantu's counsel. See Nichols v. State, 954 S.W.2d 83, 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.)

Sarah B. Duncan, Justice

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