Leslie Wayne Yohey v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00371-CR & 04-03-00372-CR
Leslie Wayne YOHEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court Nos. 1985-CR-3303 & 1985-CR-3304
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 18, 2004

AFFIRMED

Leslie Wayne Yohey ("Yohey) appeals the trial court's orders denying his motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Yohey's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeals have no merit. Counsel provided Yohey 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.). Yohey filed a pro se brief. We have reviewed the record in these appeals, counsel's brief, and Yohey's pro se brief.

Article 64.03(a)(1)(B)(2)(A) of the Texas Code of Criminal Procedure only permits a trial court to order forensic DNA testing if the convicted person establishes by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B)(2)(A) (Vernon Supp. 2003). The Texas Court of Criminal Appeals has interpreted that language as meaning a reasonable probability exists that exculpatory DNA tests will prove a convicted individual's innocence. Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002).

Yohey was convicted of murdering two people, namely his estranged wife, Terri Yohey, and Craig T. Gooch. Evidence was presented that during the offense, Yohey fired a 9 millimeter gun while his estranged wife fired a .22 caliber gun. Yohey wanted DNA testing performed on a .22 caliber bullet fragment recovered from a wall at the crime scene to establish that the wound to Gooch's head, which was caused by a .22 caliber bullet, was the fatal wound. Yohey theorized that this evidence would establish that the multiple bullet wounds from the 9 millimeter gun Yohey used were not the cause of Gooch's death. However, during the DNA hearing, Yohey's attorney read the following from the autopsy report: "it is our opinion that [Gooch] died as a result of multiple gun shot wounds of [sic] the body, of [sic] a total of 14 entrance wounds were present. Seven full metal jacket [sic] of approximately a nine millimeter caliber were recovered. Powder around a - presence of a number of entrance wounds indicating close range firing. The bullets went through the brain, heart, left lung, liver, spleen and bowel." Given that the autopsy report listed "multiple gun shot wounds of the body" as the cause of death, the trial court did not err in concluding that Yohey failed to establish that a reasonable probability existed that he would not have been prosecuted or convicted based on the DNA test results from the bullet fragment.

Based on the foregoing, we agree that the appeals are frivolous and without merit. The orders of the trial court are affirmed. Appellate counsel's motions to withdraw are 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