Stevenson, Steve v. State ( 2003 )

Affirmed and Opinion filed April 10, 2003

Affirmed and Opinion filed April 10, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01103-CR

____________

STEVE STEVENSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 469,640

M E M O R A N D U M  O P I N I O N

This is an appeal from the trial court=s denial of appellant=s motion for forensic DNA testing. The motion was denied because the State established the physical evidence in appellant=s case was destroyed on September 12, 2000.

Appellant's appointed counsel filed a brief in which he concludes that the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel's brief was delivered to appellant.  A copy of the record was delivered to appellant and, on March 14, 2003, appellant filed a motion to reverse and remand the case for a new trial.  In this motion, appellant claims his constitutional right to due process was violated by the destruction of the DNA evidence.^[1]  The relief appellant seeks is outside the scope of an appeal from the denial of a motion for DNA testing under Chapter 64; this claim amounts to a request for habeas relief.  See Watson v. State, 2002 WL 31416064 (Tex.App.‑Amarillo 2002, pet. ref=d). A court of appeals does not have original habeas corpus jurisdiction in felony cases.  Tex. Gov't Code Ann. ' 22.221 (Vernon Supp. 2003).

We agree the appeal is wholly frivolous and without merit.  Further, we find no reversible error in the record. 

Accordingly, we deny appellant=s motion to reverse and remand and we affirm the judgment of the trial court.

PER CURIAM

Judgment rendered and Opinion filed April 10, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Article 38.39 of the Texas Code of Criminal Procedure, requiring preservation of evidence containing biological material, did not take effect until April 5, 2001; appellant was convicted of the offense in this case on March 10, 1987.