Kenneth McGregor v. State ( 2004 )

Opinion Issued March 4, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00023-CR

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KENNETH MCGREGOR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 531483

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MEMORANDUM OPINION

              Appellant, Kenneth McGregor, pleaded guilty to sexual assault in 1990. In accordance with the State’s recommendation, the trial court assessed punishment at 20 years’ confinement. In 2002, appellant filed a motion for post-conviction DNA testing. The trial court denied appellant’s motion. In three issues presented for review, appellant, in his pro se brief, claims that (1) the evidence is legally insufficient to support the verdict; (2) the evidence establishes that his plea bargain was induced by force because “trial counsel was not competent to examine any of the facts which have been found by the FBI lab technicians,” and a thorough investigation was not properly conducted by the investigators; and (3) “the Houston Police Crime Lab technicians and the State prosecutor have been found shut down by misconduct and routinely found using the lab wrongfully” and mishandling DNA testing, and therefore we should review the lab’s decision. We dismiss in part and affirm in part.

Background

          Appellant’s counsel   filed a motion to withdraw from appellant's representation on appeal because she concluded that there are no arguable grounds of error. The brief meets the requirements of     Anders v. California,     386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and stating why no arguable grounds for error on appeal exist.     See     Gainous v. State,     436 S.W.2d 137, 138 (Tex. Crim. App.1969)    . Counsel has advised appellant of her evaluation and informed him of his right to file a pro se response, and appellant has filed a response. 

          Appellant was sentenced to 20 years’ confinement after pleading guilty to the offense of sexual assault in September 1990. No appeal was taken on the conviction. In November 2002, appellant filed a motion pursuant to chapter 64     of the Texas Code of Criminal Procedure     seeking DNA testing of evidence containing biological material. The trial court appointed counsel to assist appellant in the proceeding. The State responded to appellant's motion with three sworn affidavits. The affidavit of Melchora Vasquez, clerk for the Harris County District Clerk’s Office, states that the Clerk’s office has no items of evidence in its possession. The affidavit of K.L. McGinnis, property custodian for the Houston Police Department, notes that the evidence maintained in appellant’s sexual assault case and in the possession of the Houston Police Department was destroyed on May 12, 1989. Finally, the affidavit of Jim Bolding, custodian for the Houston Police Department Crime Laboratory, states that there are no items of evidence pertaining to appellant’s sexual assault case in the Houston Police Department Crime Laboratory. The trial court accepted the State’s finding of facts and conclusions of law and denied appellant’s motion for DNA testing on the basis that no genetic material was available for testing.

Discussion

          In his   first two issues presented in his pro se brief, appellant raises issues related to his original conviction and plea bargain. We do not address the merits of these complaints because they may be appealed only directly.     See Watson v. State,     96 S.W.3d 497, 500 (Tex. App.—Amarillo 2002, pet. ref’d) (holding that appeal from denial of Chapter 64 motion is limited to findings of lower court under articles 64.03 or 64.04 in non-capital case). Thus, we must dismiss appellant’s first and second issues.

          In his third issue, appellant argues that we should review the State’s assertion that no biological material existed because a recent review of the Houston Police Department Crime Lab found technicians’ errors. The trial court, however, found that the evidence from appellant’s sexual assault conviction in the possession of the Houston Police Department had been destroyed and that no remaining evidence in his underlying case exists. Because there is no evidence that could be subjected to DNA testing, the trial court did not abuse its discretion in denying appellant's motion.       See Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.—Dallas 2003, no pet.)                 (holding appeal from order denying DNA testing was frivolous because, among other things, no DNA evidence existed). We overrule appellant’s third issue.

Conclusion

          We affirm the judgment of the trial court denying appellant’s request for DNA testing and dismiss that portion of appellant’s appeal relating to his original conviction and plea bargain. We grant appellate counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.). We note that counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).         

  

                                                                                        Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.4.