Victor Ramirez v. State

Opinion issued November 24, 2004 In The Court of Appeals For The First District of Texas NOS. 01-03-01024-CR 01-03-01025-CR ____________ VICTOR RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause Nos. 384426, 384509 MEMORANDUM OPINION Appellant, Victor Ramirez, appeals the trial court’s denial of his motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-2005). We determine (1) whether appellant’s counsel properly concluded that this appeal is frivolous and (2) whether appellant’s pro se challenge that he was denied federal and state due process when the State destroyed DNA evidence is an arguable ground for appeal over which we have subject-matter jurisdiction. We affirm. Facts After a bench trial in 1983, in trial court cause number 384,426 (appellate cause number 01-03-01024-CR), the trial court convicted appellant of aggravated sexual assault and assessed his punishment at life in prison. In January 1984, in trial court cause number 384,509 (appellate cause number 01-03-01025-CR), appellant pleaded no contest to aggravated rape, and the trial court assessed punishment at 10 years in prison. In 2002, appellant moved for post-conviction DNA testing in both causes. The State responded by filing, in each cause, three affidavits averring that the relevant evidence could not be located or had been destroyed. The trial court entered fact findings and legal conclusions that, among other things, no evidence existed or was in a sufficient condition for DNA testing. Anders Brief Appellant’s counsel has filed a brief stating his conclusion that the appeal is frivolous because the record establishes that no evidence was available for DNA testing. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. See id., 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant’s counsel explains that, because the record shows that no testable evidence exists, appellant cannot prevail in showing that the trial court abused its discretion by denying DNA testing. After a defendant moves for DNA testing, the State must either deliver the evidence to the court or explain in writing why it cannot do so. See Tex. Code Crim. Proc. Ann. art. 64.02(2) (Vernon Supp. 2004-2005). A court may order testing only if, among other things, the evidence still exists and is in testable condition. See id. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2004-2005). A trial court’s determination of whether any evidence exists or is in a condition to be tested is a determination of historical fact, to which we afford almost total deference on appeal. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). A trial court does not abuse its discretion in finding that there is no testable evidence when, for example, the State’s written explanation or testimony or records from appropriate officials show that no biological evidence exists to test. See Shannon v. State, 116 S.W.3d 52, 54-55 (Tex. Crim. App. 2003) (upholding trial court’s conclusion that no biological materials existed based upon affidavits along lines of those in current case), cert. denied, ___ U.S. ___, 125 S. Ct. 75 (2004); Caddie v. State, No. 01-03-00570-CR, 2004 WL 1585298, at * 2-3 (Tex. App.—Houston [1st Dist.] July 15, 2004, no pet.) (affidavits); Watson v. State, 96 S.W.3d 497, 499 (Tex. App.—Amarillo 2002, pet. ref’d) (upholding trial court’s conclusion that no biological materials existed to test based upon sheriff’s testimony that no record existed of materials’ return to crime laboratory; that, if materials had been returned, they would have been destroyed; that sheriff had no recollection of whether materials had been destroyed; and that materials could not be located in sheriff’s office). The record supports the trial court’s finding that no evidence exists to test in either cause. Based on the affidavits presented, we agree with appellate counsel that appellant could not prevail in a challenge that the trial court abused its discretion in this finding and conclusion. Jurisdiction to Consider Post-Conviction DNA Testing Appellant has filed a pro se response to counsel’s Anders brief. If an appellant raises an arguable ground for appeal in such a pro se response, we may remand the appeal for new counsel to be appointed to urge the ground; otherwise, we will affirm. See Henry v. State, 948 S.W.2d 338, 341 (Tex. App.—Dallas 1997, no pet.). In the sole issue raised in his pro se response, appellant asserts that he was denied federal due process and state due course of law because the State failed to preserve evidence that could have proven his innocence when subjected to DNA testing. See U.S. Const. amend. XIV; Tex. Const. art. I, § 9. This Court has already held that it has no jurisdiction to consider such a challenge in a chapter 64 appeal. Chavez v. State, 132 S.W.3d 509, 510 (Tex. App.—Houston [1st Dist.] 2004, no pet.); see Watson, 96 S.W.3d at 500. Conclusion We hold that appellant’s pro se response has not raised an arguable ground for appeal. We have also discharged our responsibility upon the filing of an Anders brief to search the record for possible reversible error, but have found none. Accordingly, we affirm the trial court’s judgment. We grant appellate counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.). We note that counsel still 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 Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Tim Taft Justice Panel consists of Justices Taft, Jennings, and Bland. Do not publish. See Tex. R. App. P. 47.2(b).