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in Re Perry Wiley ( 2003 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-03-00327-CR

    In re Perry Wiley







    FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

    NO. 26,278, HONORABLE JOE CARROLL, JUDGE PRESIDING

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




    Appellant Perry Wiley is serving a thirty-year sentence imposed in 1978 following his conviction for burglary with intent to commit sexual abuse. On June 14, 2002, Wiley filed a pro se request for appointment of counsel for the purpose of post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2003). An attorney was appointed ten days later. On April 2, 2003, counsel filed "defense attorney's position on defendant's request for DNA testing." In this document, counsel informed the court that her investigation revealed that the only biological evidence collected by the police, oral swabs from the complainant, had tested negative for spermatozoa and had been destroyed by the laboratory in 1982. Counsel concluded that, under the circumstances, a motion for DNA testing would be frivolous.

    Although no formal request for DNA testing was filed, the State filed a response summarizing the facts of the case and urging that Wiley had not demonstrated his entitlement to DNA testing. Id. art. 64.02. The district court subsequently refused to order DNA testing, finding that the evidence for which testing was sought had been destroyed and that Wiley had failed to demonstrate that he would not have been prosecuted or convicted if exculpatory DNA test results had been obtained. Id. art. 64.03(a)(1)(A)(i), (2)(A). This appeal followed.

    The new attorney appointed to represent Wiley on appeal filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to Wiley, who was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.

    We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.

    The district court's order is affirmed.





    __________________________________________

    Bea Ann Smith, Justice

    Before Chief Justice Law, Justices B. A. Smith and Patterson

    Affirmed

    Filed: October 2, 2003

    Do Not Publish