Opinion
No. 05-09-00747-CR
Opinion Filed July 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-80438-99.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
OPINION
William Adolph Sheckells was found guilty of aggravated sexual assault of a child younger than fourteen years of age, and punishment was assessed at thirty-five years' imprisonment. In January 2009, appellant filed a motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The trial judge denied the motion. This appeal followed. 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). The brief presents a professional evaluation of the record and suggests there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant filed a pro se response raising several issues. After reviewing the record, we conclude there is at least one arguable issue. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). In appellant's motion for post-conviction DNA testing, he argued that identity "of the biological material and assailant is at issue," and that "testing of the evidence with existing technology and techniques . . . would demonstrate defendant's innocence." Thus, we conclude an arguable issue exists as to whether appellant established by a preponderance of the evidence that exculpatory DNA test results would establish his innocence and thus his entitlement to the testing. See Esparza v. State, 282 S.W.3d 913, 922 (Tex. Crim. App. 2009) (in sexual assault cases, any overwhelming eye-witness identification and strong circumstantial evidence . . . supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exculpatory DNA evidence would prove his innocence under Article 64.03(a)(2)(A)"); Blacklock v. State, 235 S.W.3d 231, 233 (Tex. Crim. App. 2007) (even when a victim knows her attacker, the language and legislative history of Article 64.03(a)(1)(B) make it very clear that a defendant, who requests DNA testing, can make identity an issue by showing that exculpatory DNA tests would prove his innocence). We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We remand the appeal to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits. See id. Appellate counsel should investigate the record and file a brief that addresses the issue noted above and any other grounds that might arguably support the appeal. See id. We further order the trial court to inform this Court in writing of the identity of appellate counsel and the date counsel is appointed. We remove the appeal from the submission docket. We abate the appeal to allow the trial court to comply with this order.