Opinion
No. 01-08-00101-CR
Opinion issued October 1, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 449616.
Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
MEMORANDUM OPINION
Appellant, Edward Galvan Coronado, appeals from the trial court's denial of his motion for post-conviction DNA testing, pursuant to article 64.03(a) of the Texas Code of Criminal Procedure. We affirm the order of the trial court. Appellant's court-appointed counsel filed a motion to withdraw as counsel and a brief concluding that this appeal is without merit. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record that demonstrates the lack of arguable grounds of error. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Counsel represents that he served a copy of the brief on appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant has filed a pro se response in which he alleges that (1) DNA evidence would have proved his innocence, (2) his confession was coerced and made under the influence of alcohol, and (3) he was a victim of a racially-motivated prosecution. We need only address the issue of DNA testimony, as the other issues relate to appellant's original conviction and this Court has no jurisdiction to consider them in this DNA appeal. See Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.) (holding that jurisdiction afforded to appellate court for post-conviction DNA motions does not extend to collateral attacks on judgment of conviction or resurrect issues that could have been challenged on direct appeal). For a convicting court to grant a motion for post-conviction DNA testing, Chapter 64.03(a) of the Texas Code of Criminal Procedure requires that the convicted person establish, among other things, that "the person would not have been convicted if exculpatory results had been obtained through DNA testing." Id.; see also Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006). Whether DNA evidence would have proved exculpatory to a convicted person is an application-of-law-to-fact question which is reviewed de novo. See Wilson, 185 S.W.3d at 585 (citing Rivera v. State, 89 S.W.3d 55, 50 (Tex. Crim App. 2002)). However, the evidence in the State's possession — a slide containing known hair and slides containing hair from appellant's clothes and the fly of his pants — would not prove exculpatory even if the hairs were from someone other than appellant or the victim. The sexual assault for which appellant was convicted occurred on the ground of a public park, and therefore, the existence of foreign hair would not be unexpected and would "merely muddy the waters." See Jacobs v. State, 115 S.W.3d 108 at 113 (Tex. App.-Texarkana 2003, pet. ref'd)). Further, the presence of a third party's hair would not be exculpatory in light of other evidence of appellant's guilt. See Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003) (the presence of a third party's DNA at the crime scene would not constitute affirmative evidence of innocence given the other evidence of guilt in the case). Appellant was seen at the park by a police officer who noted that appellant had grass in his pubic hair and grass hanging from his penis. The victim had grass on her buttocks and ran to the officer crying, "Don't let him hurt me again." Appellant later confessed to the crime. Appellant was also arrested along with a codefendant, Ramon Jalomo. The complainant alleged that both men had raped her, and both men confessed. The presence of Jolomo's hair at the scene would not exculpate appellant. See Wilson v. State, 185 S.W.3d 481, 485 (Tex. Crim. App. 2006) (holding that if DNA testing showed additional perpetrator, it would have no effect on defendant's guilt as party). We have carefully reviewed the record, counsel's brief, and appellant's pro se response, and, finding no arguable grounds for appeal, we agree that the appeal is without merit. Therefore, we affirm the judgment of the trial court. We grant counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Counsel 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 Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We affirm the judgment of the trial court.