in Re Bill Lawhorn, Jr. ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00557-CR
In re Bill Lawhorn, Jr.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 101,618, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
Bill Lawhorn, Jr., is serving the thirty-five year prison sentence imposed in June 1991
after he pleaded guilty to and was convicted of burglary of a habitation with intent to commit sexual
assault. In May 2009, on Lawhorn’s pro se motion, the district court appointed counsel and ordered
forensic DNA testing of biological material obtained during the investigation of this offense. After
receiving the results of this testing, the court found that it is not reasonably probable that Lawhorn
would not have been convicted if the results of the DNA tests had been available during the trial.
See Tex. Code Crim. Proc. Ann. arts. 64.04 (West 2006). Lawhorn appeals this finding. Id. § 64.05.
Lawhorn’s court-appointed attorney has filed a motion to withdraw supported
by a brief concluding that the appeal is frivolous and without merit. See Anders v. California,
386 U.S. 738 (1967). In response to counsel’s brief, Lawhorn filed two “motions for appeal”
challenging counsel’s conclusion that the appeal is frivolous and urging that the DNA test results are
exculpatory. See id. at 744.
 The DNA test report states that the complainant’s DNA was found on her nightgown
and pantyhose, and on a swab contained in the sexual assault kit. No DNA profile was obtained
from the sperm fraction found on this swab, or from the victim’s panties or the handle of the putty
knife that we infer was the tool used to effect entry into the complainant’s residence. Based on the
laboratory report, the district court concluded that the DNA testing did not yield exculpatory results
and that if these results had been available at the trial of this case, it is reasonably probable that
Lawhorn would have been convicted.
In his pro se response to counsel’s Anders brief, Lawhorn asserts that the absence of
his DNA on the tested items exculpates him and that the test results would have resulted in his
acquittal. But on this factual record, which consists solely of the laboratory report, the test results
are simply inconclusive. The results neither inculpate nor exculpate Lawhorn, and they fall far
short of demonstrating a reasonable probability that Lawhorn is innocent. See Johnson v. State,
183 S.W.3d 515, 520 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d, untimely filed).
The issue raised in appellant’s pro se response to counsel’s Anders brief has no
arguable merit. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v. State,
178 S.W.3d 824, 827 (Tex. Crim. App. 2005). We agree with counsel that the appeal is frivolous.
In this sense, the pro se motions for appeal are overruled. Counsel’s motion to withdraw is granted.
The district court’s order is affirmed.
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J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Affirmed
Filed: September 16, 2010
Do Not Publish
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