Roland Lee Harrington v. The State of Texas--Appeal from 253rd District Court of Liberty County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-239 CR
NO. 09-04-240 CR
NO. 09-04-241 CR
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ROLAND LEE HARRINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause Nos. 21,175, 21,176 and 21,177
MEMORANDUM OPINION (1)

Roland Lee Harrington appeals the trial court's denial of a post-conviction motion for DNA testing. The court based its order on its finding that there was no biological material recovered as evidence in the three causes. On appeal, Harrington's appointed counsel concludes this appeal presents no error which would arguably support an appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Murphy v. State, 111 S.W.3d 846, 847-48 (Tex. App.--Dallas 2003, no pet.). On August 12, 2004, we granted an extension of time for Harrington to file a pro se brief. On January 14, 2005, Harrington filed a response in which he complains that the trial notes of his criminal proceeding may not have been preserved. No issue relating to preservation of the court reporter's trial notes was presented to the trial court, so the complaint is not preserved for appellate review. Tex. R. App. P. 33.1.

In 1996, Harrington pleaded guilty to two indictments for indecency with a child by contact and one indictment for aggravated sexual assault of a child by penetration. In each case, Harrington executed a judicial confession and stipulation of evidence, although in the aggravated sexual assault case the confession and stipulation addressed only one of the two means of commission alleged in the corresponding indictment. In all three cases, the trial court convicted and sentenced Harrington in accordance with the plea bargain agreement.

In 2004, Harrington filed a pro se motion for DNA testing in all three cases. The motion is not accompanied by his affidavit and does not allege that identity was an issue in the cases. See Tex. Code Crim. Proc. Ann. arts. 64.01(a); 64.03(b) (Vernon Supp. 2005). Harrington filed an application to proceed in forma pauperis and requested appointment of counsel. The trial court appointed counsel on January 7, 2004. The State's response, supported by affidavits from two sheriff's deputies, alleged "No evidence containing biological material was secured in relation to the offenses for which appellant was convicted. . . ." The trial court adopted Harrington's proposed findings of fact, which found there was no biological material recovered as evidence in the three causes, and denied the motion for forensic testing.

A convicting court may order forensic DNA testing under Chapter 64 only if the court finds that the evidence still exists, is in a condition making DNA testing possible, has been subjected to a sufficient chain of custody, and that identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2005). In this case, it is not arguable that the trial court erred in denying the motion for DNA testing because the record gives no indication of the existence of any testable evidence.

We have reviewed the clerk's record and find no arguable error requiring us to order appointment of new counsel. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The judgment is affirmed.

AFFIRMED.

PER CURIAM

 

Submitted on January 27, 2005

Opinion Delivered February 2, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Tex. R. App. P. 47.4.