ALVIN SHELLEY v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

 NUMBER 13-04-165-CR

13-04-166-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

ALVIN SHELLEY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

 

On May 6, 1996, pursuant to a plea agreement, appellant, Alvin Shelley, pled guilty to kidnapping, retaliation, and three counts of sexual assault. Appellant received two sentences of twenty years= imprisonment for his three sexual assault offenses and one sentence of ten years= imprisonment for his kidnapping and retaliation offenses, all to be served concurrently. On October 29, 2001, appellant filed a motion for post conviction DNA testing. A hearing was held on February 17, 2004, and the motion was denied. This appeal is from the denial of appellant's motion. We affirm the judgment of the trial court.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it.[1]

The record contains the trial court's certification that this case is not a plea bargain case and the defendant has the right of appeal.[2]

Anders Brief

 

On appeal, appellant's attorney has filed a brief with this Court asserting there is no basis for appeal.[3] According to the brief, counsel has reviewed the record and has concluded that appellant's appeal is frivolous and without merit.[4] The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.[5] In compliance with High v. State,[6] counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. In the brief, appellant's counsel states that he has informed appellant of his right to review the appellate record and to file a pro se brief.[7] The record reflects that appellant has filed a pro se brief.

Upon receiving a "frivolous appeal" brief, the appellate courts must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous."[8]

Pro Se Brief

In his pro se brief, appellant contends the trial court improperly denied his post-conviction motion for DNA testing. Appellant also contends he was denied effective assistance of counsel because his trial counsel failed to obtain pretrial DNA testing, which appellant claims would have established his innocence.

 Trial Court=s Denial of Appellant=s Motion for DNA Testing

In reviewing the trial court's decision on a motion for post conviction DNA testing, we apply a bifurcated standard of review.[9] We afford almost total deference to the trial court's determination of historical fact issues and application of law to facts that turn on credibility and demeanor.[10] We review de novo other application of law to fact issues.[11]

Before granting post conviction DNA testing, the trial court must first determine whether (a) testable biological material exists in a condition making forensic DNA testing possible and has not been altered or tampered with in any material respect, and (b) identity was or is an issue in the case.[12]

 

At the hearing on appellant=s motion for DNA testing, appellant=s trial counsel stated that he inquired with the Corpus Christi Police Department and the Nueces County District Attorney=s Office regarding whether any biological evidence existed in relation to appellant=s cases. Appellant=s trial counsel stated that after an investigation, he had concluded that Athere were no bodily substances that were seized . . . that exclude the [appellant] as the suspect@ and that Aidentity was not an issue in this case.@ In support of trial counsel=s investigation, the record reflects that the victim was appellant=s girlfriend and had sustained a relationship with appellant over a significant period of time. Appellant also admitted in a letter to the court that A[he] hit [the victim] a lot of times.@ Other evidence, including police reports, also contained corroborating evidence that supported the allegations against appellant. Moreover, appellant introduced no evidence to show that testable DNA evidence exists.

After reviewing the record, we find that the record supports the trial court's determination that no evidence containing biological material capable of DNA testing exists. Deferring to the trial court's finding that this evidence does not exist, we hold that the trial court properly denied appellant's motion for post conviction DNA testing.[13] Appellant=s contention regarding the trial court=s judgment is therefore overruled.

Regarding appellant=s complaint of ineffectiveness of counsel, Strickland v. Washington[14] sets forth the standard of review for effectiveness of counsel.[15]

 

Stricklandrequires a two part inquiry.[16] The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness.[17] Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.[18] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[19]

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case.[20] An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness.[21]

 

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.[22] There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.[23] To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."[24]

After carefully reviewing the record, we conclude that appellant has failed to demonstrate that his trial counsel=s performance was deficient or that DNA testing would have resulted in a different outcome at trial. In this case, substantial evidence existed that established that DNA testing would not have resulted in a different outcome. For example, letters to the trial court from appellant=s father detailed appellant=s intimate relationship with the victim. Additionally, other corroborating evidence, including police reports, indicated that third-party witnesses had called 911 on numerous occasions after they had witnessed violent altercations between appellant and the victim. The record supports trial counsel=s decision not to obtain pretrial DNA testing because identity was not at issue. Further, we cannot say that trial counsel=s conduct fell outside the wide range of reasonable professional assistance. We therefore conclude that appellant has failed to establish ineffective assistance based on his trial counsel's decision not to obtain DNA testing. Appellant=s claim of ineffectiveness is therefore overruled.

We have carefully reviewed appellant's pro se brief. We find nothing in the record that might arguably support this appeal. The trial court's judgment is affirmed.

Motion to Withdraw

 

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.[25] The record shows that counsel has not filed a motion to withdraw. If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion. We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.[26]

_____________________

LINDA REYNA YA EZ,

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and

filed this the 14th day of July, 2005.

 

[1] See Tex. R. App. P. 47.4.

[2] See Tex. R. App. P. 25.2(a)(2).

[3] See Anders v. California, 386 U.S. 738 (1967).

[4] See id.

[5] See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

[6] 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

[7] See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.).

[8] Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.).

[9] Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

[10] Id.

[11] Id.

[12] Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A), (B) (Vernon Supp. 2004-05).

[13] See Lopez v. State, 114 S.W.3d 711, 717 (Tex. App.BCorpus Christi 2003, no pet.) (holding that convicting court properly denied appellant's motion for post conviction DNA testing because record supported finding that no evidence containing biological material capable of DNA testing existed).

[14] 466 U.S. 668 (1984).

[15] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 813.

[21] Id.

[22] Id.

[23] Id.

[24] McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

[25] Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511.

[26] See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).