No. 05-03-01457-CR
Opinion Filed September 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-02245-R. Affirmed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
Opinion By Justice WRIGHT.
In 1997, Jefferey Scott Randall entered a guilty plea to attempted aggravated sexual assault. Punishment was assessed at fifteen years confinement. In 2003, appellant filed a motion for forensic DNA testing. See Tex. Code Crim. Proc. Ann. Art. 64.01, et seq. (Vernon Supp. 2004-05). In his supporting affidavit, appellant describes the evidence to test as a rape kit, the complainant's bra and shirt, and appellant's clothing and shoes. The State responded that no physical evidence was collected in the case. Concluding appellant had not rebutted the State's showing that there is no evidence to test, the trial court issued an order denying testing. On appeal, appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See Murphy v. State, 111 S.W.3d 846, 849 (Tex.App.-Dallas 2003, no pet.). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response contending that he received ineffective assistance of counsel, the State withheld Brady material, his sentence was illegally enhanced, and the trial court abused its discretion in allowing the State to submit unverified evidence. After conducting an Anders review, we affirm the trial court's order.
Counsel's Representation
Before addressing the merits of the appeal, we pause to discuss the propriety of counsel representing appellant in this appeal. Appellate counsel also represented appellant in the trial court DNA proceedings. This Court has held that appellate counsel cannot file an Anders brief if counsel also served as trial counsel. See Chandler v. State, 988 S.W.2d 827, 828 (Tex.App.-Dallas 1999, no pet.). In her brief, counsel contends that Chandler should not bar her representation because one of the rationales of Chandler-the inability of counsel to evaluate her own performance for a possible claim of ineffective assistance-is inapplicable to collateral attacks on convictions. After receiving counsel's brief, the Court issued an order allowing counsel to proceed, but reserving the right to revisit the issue of counsel's representation on submission. Initially, we note that Chandler provides two rationales for appointing different counsel to handle an Anders appeal: (1) counsel's inability to fairly evaluate a possible claim of ineffective assistance of counsel and (2) the reality that an error not recognized by counsel in the trial court might go unrecognized on appeal. Id. Since counsel filed her brief, the Court has issued its opinion in Hughes v. State, discussed infra, holding Chapter 64 applicants cannot raise an issue of ineffective assistance of counsel. Therefore, we must consider whether the second Chandler rationale suffices to justify the appointment of different counsel to handle an Anders appeal of a Chapter 64 proceeding. In this case the State reported that there is no evidence to test. In the absence of evidence in testable condition, appellant cannot possibly prevail on his motion, and the appeal is necessarily frivolous. See Cravin v. State, 95 S.W.3d 506, 511 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (concluding the trial court did not err in denying motion for forensic DNA testing when the State reported that no evidence existed). Accordingly, in light of Hughes and the futility of the appeal, we conclude counsel's representation of appellant in both the trial court and on appeal does not present an arguable issue for appeal. Standard of Review
In conducting our Anders review, we review the entire record to determine whether the appeals are "wholly frivolous" or if there are issues "arguable on their merits." See Anders, 386 U.S. at 744. An appeal is wholly frivolous and lacks merit when it "lacks any basis in law or fact." See McCoy v. Court of Appeals, 486 U.S. 429, 436, 438 n. 10 (1988). We defer to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). We review de novo all other application of law-to-fact issues including the ultimate issue of whether a reasonable probability exists that exculpatory evidence would prove appellant's innocence. Id. The Evidence
To support its response, the State attached a copy of a "prosecution report," a patient form prepared by a paramedic, part of a Dallas police report narrative, and a copy of a facsimile from the Dallas Police Department Property Section. The State's evidence showed appellant met the complainant and her husband while they were all fishing. That evening, appellant invited the couple to his residence and later drove them back to retrieve the complainant's husband's truck. After dropping off the complainant's husband, appellant and the complainant left in appellant's truck to get some beer. Appellant took the complainant to a vacant lot and pushed her out of the moving truck. Appellant kicked the complainant in the head and told her, "if you cooperate and give me some pussy, everything will be ok." When the complainant resisted, appellant beat her and threatened to kill her. Appellant removed the complainant's shirt and bra and he pocketed her silver necklace. While appellant was removing his pants, the complainant ran away. Appellant followed the complainant in his truck and knocked her down by hitting her with the bumper. Appellant then continued beating the complainant. A witness heard the complainant screaming and he summoned the police. When the police arrived, appellant ran into the woods but later returned and was arrested at his truck. At the time of his arrest, the complainant's silver necklace was still in appellant's possession. The complainant was scratched and bruised from her fight with appellant. Paramedics treated her at the crime scene but they did not transport her to the hospital. The police department's physical evidence section took photographs but did not collect any physical evidence. Ineffective Assistance of Counsel
In his first two grounds, appellant contends he received ineffective assistance of counsel in connection with his Chapter 64 proceeding, thus frustrating the Legislature's intent in enacting the DNA testing statute and depriving him of due process of law. This Court has already determined that a Chapter 64 applicant may not raise an issue of ineffective assistance of counsel. See Hughes v. State, 135 S.W.3d 926, 928 (Tex.App.-Dallas 2004, pet. ref'd). Moreover, the record does not support appellant's contentions that counsel engaged in "obstructionist tactics" and frustrated appellant's alleged efforts to discharge counsel and represent himself. See Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App. 1995) (defendant desiring to reject counsel's services and represent himself must "clearly and unequivocally inform the trial court of his desire to prosecute his appeal without the aid of counsel"). Without support in the record, appellant cannot show his counsel rendered ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Therefore, we conclude appellant's first two grounds do not raise an arguable issue for appeal. Brady Violation and Illegal Sentence
In his third ground, appellant contends the State failed to disclose exculpatory evidence, possibly as a result of ineffective assistance from trial counsel. See generally Brady v. Maryland, 373 U.S. 83, 87 (1963). In his fourth ground, appellant contends his sentence was improperly enhanced because the State offered insufficient proof to prove true the enhancement paragraph of the indictment. We have no jurisdiction to consider these complaints. The version of Chapter 64 applicable to appellant's case confers jurisdiction on this Court to review the trial court's findings under articles 64.03 and 64.04 in the post-conviction DNA testing proceeding. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. Art. 64.05 (Vernon Supp. 2004-05)); Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App. 2003). We might have authority to consider certain other issues arising from appellant's Chapter 64 proceeding. See Booker v. State, 155 S.W.3d 259, 262-63 (Tex.App.-Dallas 2004, no pet.). We cannot, however, entertain issues from appellant's underlying trial unrelated to the DNA proceedings. See Hicks v. State, 151 S.W.3d 672, 674 (Tex.App.-Waco 2004, pet. ref'd); Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.). See also Ex parte Kimes, 872 S.W.2d 700, 701 (Tex.Crim.App. 1993) (post-trial allegation of Brady violation may be raised through writ of habeas corpus). We conclude appellant's third, and fourth grounds do not raise arguable issues. Abuse of Discretion
In his fifth and final ground, appellant contends the trial court abused its discretion by allowing the State to attach inadmissible evidence to its response to appellant's motion. Assuming, without deciding, that appellant had some ground for challenging the State's evidence, he waived the issue by not objecting to the evidence in the trial court. See Tex.R.App.P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Accordingly, we conclude appellant's fifth ground does not raise an arguable issue for appeal. Conclusion
We have reviewed the record, counsel's brief, and appellant's response. We agree the appeal is wholly frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's order denying testing.