Lawrence Alford Staler v. The State of Texas--Appeal from 209th District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00276-CR
Lawrence A. STALER,
Appellant
v.
The STATE of Texas,
Appellee
From the 209th Judicial District Court, Harris County, Texas
Trial Court No. 562842
Honorable Michael T. McSpadden, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 3, 2003

AFFIRMED

Lawrence A. Staler ("Staler") appeals the trial court's order denying his motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Staler'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 Staler 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.). Staler filed a pro se brief, asserting his innocence. We have reviewed the record in this appeal, counsel's brief, the State's brief and Staler's pro se brief.

Article 64.03(a)(1)(A)(i) of the Texas Code of Criminal Procedure only permits a trial court to order forensic DNA testing if evidence still exists and is in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2003). Three affidavits were attached to the State's response to Staler's motion stating that no evidence existed. Staler does not argue in his brief that the affidavits were inaccurate, and counsel states in his brief that he reviewed the file from the original investigation and the police report noted that no physical evidence was present. At the hearing, the trial court stated that it was denying DNA testing because no evidence existed.

Based on the foregoing, 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 v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. L pez, Chief Justice

DO NOT PUBLISH