Johnson, John Michael v. The State of Texas--Appeal from 10th District Court of Galveston County

Affirmed and Opinion filed March 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01012-CR

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JOHN MICHAEL JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 95CR0750

M E M O R A N D U M O P I N I O N

Appellant entered a plea of nolo contendere to the offense of aggravated sexual assault. On November 16, 1995, the trial court deferred an adjudication of guilt and sentenced appellant to nine years community supervision. On August 24, 1999, the State moved to adjudicate appellant=s guilt. On November 5, 1999, the court entered a judgment adjudicating guilt and sentenced appellant to confinement for sixteen years in the the Institutional Division of the Texas Department of Criminal Justice.

On September 10, 2001, appellant filed a pro se motion for forensic DNA testing pursuant to Chapter 64 of the Code of Criminal Procedure. The trial court appointed counsel to represent appellant. On September 13, 2002, the trial court conducted an evidentiary hearing and made a written finding that the evidence was not in a condition making DNA testing possible. Appellant filed a written pro se notice of appeal from the denial of DNA testing.

Appellant's appointed counsel filed a brief in which she concludes that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response to counsel=s brief. On February 21, 2003, appellant filed a pro se response in which he argues that he has been deprived of his constitutional rights by the State=s failure to preserve the DNA evidence for testing.[1] The relief appellant seeks is outside the scope of an appeal from the denial of a motion for DNA testing under Chapter 64; this claim amounts to a request for habeas relief. See Watson v. State, 2002 WL 31416064 (Tex. App.CAmarillo 2002, pet. granted). A court of appeals does not have original habeas corpus jurisdiction in felony cases. Tex. Gov=t Code Ann. ' 22.221.

We agree this appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. The record reflects appellant did not meet the statutory requirements to be entitled to forensic DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03.

Accordingly, the order of the trial court denying forensic DNA testing is affirmed.

PER CURIAM

Judgment rendered and Opinion filed March 6, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Article 38.39 of the Texas Code of Criminal Procedure, requiring preservation of evidence containing biological material, did not take effect until April 5, 2001; the offense in this case was committed May 19, 1995.