David Cash Moore v. State ( 2004 )

In The Court of Appeals

Ninth District of Texas at Beaumont

____________________ NO. 09-03-529 CR ____________________

DAVID CASH MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 221^st District Court Montgomery County, Texas Trial Court Cause No. 96-12-01695 CR

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MEMORANDUM OPINION  

Appellant was indicted for aggravated sexual assault of a child. Appellant pled guilty to the lesser included offense of indecency with a child, and the trial court sentenced him to twenty years of confinement in the Texas Department of Criminal Justice, Institutional Division. After his conviction, appellant requested counsel be appointed to assist him in obtaining an order for DNA testing pursuant to Article 64.01(c) of the Texas Code of Criminal Procedure. See Act of April 3, 2001, 77^th Leg., R.S., ch. 2, §2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at Tex. Crim. Proc. Code Ann. art. 64.01(c) (Vernon Supp. 2004)). The trial court appointed counsel to represent appellant in the post-conviction proceeding. The clerk's record does not contain appellant's post-conviction motion for DNA testing. However, the record does contain the trial court's findings of fact and conclusions of law and its order denying appellant's motion. In its findings of fact, the trial court found, based on an affidavit submitted by the State, that no biological material was ever recovered as evidence. Accordingly, the trial court found appellant had failed to establish by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. The trial court concluded appellant had failed to meet the requirements of articles 64.03(a)(1) and 64.03(a)(2) of the Texas Code of Criminal Procedure, and entered an order denying appellant's request for DNA testing. See Act of April 3, 2001, 77^th Leg., R.S., ch. 2, §2, 2001 Tex. Gen. Laws 3 (amended 2003) (current version at Tex. Crim. Proc. Code Ann. art. 64.03(a)(1), (2) (Vernon Supp. 2004)).

Counsel for appellant has filed an Anders brief. He has also filed a motion to withdraw. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Appellant was provided with a copy of the brief, the motion to withdraw, the clerk's record, and a motion for extension of time to file pro se brief. Counsel informed appellant of his right to file his own brief if he so desired. Appellant then filed a pro se brief, in which he contends he received ineffective assistance of counsel and the trial court erred in denying his motion for post-conviction DNA testing.  

In his first issue, appellant argues he received ineffective assistance of counsel at his post-trial DNA motion hearing and throughout the course of his appeal. Appellant contends his appointed counsel did not confer with him and did not "submit a proper Motion for DNA testing." Appellant further contends "Appellant's court appointed counsel did not subject the Appellant's case to any adverserial [sic] testing as envisioned by the 6^th Amendment, instead the Appellant's court appointed counsel revealed a conflict of interest by submitting documents advising that the DNA Testing be denied."

To prevail on a claim of ineffective assistance of counsel, appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88; 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant must prove there was no plausible professional reason for specific acts or omissions of his counsel. Id. at 836. Furthermore, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

Regardless of whether appellant has the right to effective assistance of counsel, he has failed to meet his burden under Strickland. The record reveals there is no biological matter which may be subjected to DNA testing. The affidavit filed by the assistant district attorney stated "there was no physical evidence. The State's case was based entirely on witness accounts." Nothing in the record supports appellant's contention that "there may exist biological material in the form of a beach towel." Therefore, there is no showing that, but for counsel's conduct, the result would have been different. Appellant's first issue is overruled.

In his second issue, appellant says the trial court erred in denying his motion for DNA testing based upon the assistant district attorney's affidavit, which stated there was no physical evidence in the State's possession. The record supports the trial court's finding that there is no biological evidence to test. Appellant's arguments to the contrary are not supported by the record. Appellant's second issue is overruled.

The judgment of the trial court is affirmed. The motion to withdraw filed by appellant's counsel is granted.

AFFIRMED. PER CURIAM

Submitted on September 10, 2004

Opinion Delivered November 24, 2004

Do Not Publish

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