Lit Anthony Adams v. State ( 2007 )

Opinion filed January 11, 2007

Opinion filed January 11, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00220-CR

                                                    __________

                                  LIT ANTHONY ADAMS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 238th District Court

                                                         Midland County, Texas

                                                Trial Court Cause No. CR 20,246

                                                                   O P I N I O N

Lit Anthony Adams appeals the trial court=s denial of his motion for DNA testing under Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006).  We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. 

Counsel presents two potential points of error suggesting that a hearing should have been conducted and that appellant=s rights were violated when the trial court refused to order additional testing. We agree with counsel that neither the record before this court nor the law support these potential points.

A defendant is not entitled to a hearing on a motion for DNA testing.  Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004).  Appellant was convicted in April 1995 of the sexual assault of a child under fourteen years of age.  In May 1995, the Southwestern Institute of Forensic Sciences in Dallas filed a report that identified the DNA recovered from the victim=s panties as matching appellant=s DNA and not matching a codefendant=s.  The record does not support the contention that additional testing was warranted or that the trial court erred in denying the motion. Appellant did not meet the requirements of Article 64.03.

Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief.  A response has been filed.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant contends that the trial court did not Aapply the correct evidentiary standard.@  Specifically, appellant argues that the Acorrect burden of proof on the movant under Chapter 64 is to show by a preponderance of the evidence that the movant would not have been convicted.@  We disagree. Article 64.03(a)(2)(A) provides that Athe convicted person establishes by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing.@  The trial court applied the proper Article 64.03 standard in its order denying the motion for DNA testing. Appellant=s contentions in his response are overruled.

The motion to withdraw is granted.  We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals.  Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006).  Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66.

The order denying the motion for DNA testing is affirmed.

January 11, 2007                                                                      PER CURIAM

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.