Nelson Wiley, Jr. v. State ( 2006 )

                             NUMBER 13-04-032-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

NELSON WILEY, JR.,                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

___________________________________________________________________

                  On appeal from the 130th District Court

                         of Matagorda County, Texas.

___________________________________________________  _______________

                     MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Rodriguez and Garza

                      Memorandum Opinion by Justice Rodriguez

In May 1993, appellant, Nelson Wiley, Jr., was convicted by a jury of aggravated sexual assault of a child and sentenced to fifty years in the Texas Department of Criminal Justice, Institutional Division and assessed a $10,000 fine.  In October 2003, appellant filed a motion and then an amended motion for forensic DNA Testing of Biological Material.  See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005).  After a hearing on the motion, the trial court denied appellant's motion. Appellant appeals from the trial court's order.

Concluding the appeal is frivolous and without merit, appellant's counsel filed a brief in which they presented four arguable grounds of error.  The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal."  See Tex. R. App. P. 25.2(a)(2).  We affirm the order.

Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it.  See id. at 47.4.

I.  Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which they have concluded that there is no good-faith basis for an appeal and that any argument advanced would be frivolous and completely without merit.  Anders v. California, 386 U.S. 738, 744 (1967).  Appellant's brief meets the requirements of Anders.  Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).  In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in their opinion, are all issues which might arguably support an appeal.  See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel have informed the Court that they notified appellant of the following:  (1) they have thoroughly reviewed the record and have determined that any appeal advanced would be frivolous and without merit; (2) they are requesting to withdraw as counsel; and (3) appellant has the right to request and review the appellate record and to file a pro se brief.  See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813.  Counsel have also forwarded, to appellant, a copy of the brief that sets forth all issues which might arguably support an appeal.  More than thirty days have passed, and appellant has not filed any pro se brief.  See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

II.  Discussion

In compliance with Anders, counsel raise and review the following issues as possible grounds for our review: (1) whether appellant's motion and its supporting evidence complied with article 64.01 of the Texas Code of Criminal Procedure, see Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005) (setting forth three stages to a motion for post-conviction DNA testing); Murphy v. State, 111 S.W.3d 846, 848 Tex. App.BDallas 2004, no pet.) (explaining first stage focuses on the motion itself and whether it complies with article 64.01); (2) whether the trial court properly determined if there was any biological evidence that could be tested; (3) whether the trial court properly determined that any evidence obtained through DNA testing would not prove appellant's innocence, see Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.BHouston [1st Dist.] 2002, pet. ref'd) (providing that in second stage, the trial court determines whether there is any biological evidence that should be tested and whether the evidence will prove the petitioner's innocence); Murphy, 111 S.W.3d at 848-49 (same); and (4) whether appellant can pursue an appeal based on ineffective assistance of counsel.  See Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 774 (Tex. Crim. App. 2003) ("A Chapter 64 proceeding is a collateral attack on the conviction and there is therefore no federal or state constitutional right to an attorney in such a case."); In re Beasley, 107 S.W.3d 696, 698 (Tex. App.BAustin 2003, no pet.).

The Supreme Court advised appellate courts that upon receiving a Afrivolous appeal@ brief, they must conduct Aa full examination of all the proceeding[s] to decide whether the case is wholly frivolous.@  Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2003, no pet.).  Accordingly, we have carefully reviewed the record and have considered the issues raised in the brief, and we have found nothing that would arguably support an appeal.  See Stafford, 813 S.W.2d at 509.  We agree with counsel that the appeal is wholly frivolous and conclude the appeal is without merit.  See Bledsoe v. State, 178 S.W.3d 824, 827‑28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

III.  Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's counsel have asked permission to withdraw as counsel for appellant.  See Anders, 386 U.S. at 744.  We grant counsel's motion to withdraw.  We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam); see also Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2005) (providing that an appeal under the DNA testing statute "is to a court of appeals in the same manner as an appeal of any other criminal matter, except that if the convicted person was convicted in a capital case and was sentenced to death, the appeal is a direct appeal to the court of criminal appeals."); Swearingen v. State, 2006 Tex. Crim. App. LEXIS 186, at *2-*3 (Tex. Crim. App. Feb. 1, 2006).

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 20th day of April, 2006.