
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00191-CR


In re James Edward Nealy




FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 48,441, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

		James Edward Nealy appeals from the district court's order denying post-conviction
DNA testing.  Nealy's court-appointed attorney filed a brief concluding that the appeal is frivolous
and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967),
by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced.  See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State,
573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137
(Tex. Crim. App. 1969).  The principles of Anders have been extended to include appeals of a trial
court's ruling on a motion for post-conviction DNA testing.  See Murphy v. State, 111 S.W.3d 846,
847-48 (Tex. App.--Dallas 2003, no pet.).  
		Nealy received a copy of counsel's brief and was advised of his right to examine the
appellate record and to file a pro se brief.  No pro se brief has been filed, although Nealy did file a
motion for "Stay of Proceedings in the Appeal Court" to allow him the opportunity to refile his
motion for DNA testing in district court.  We overrule the motion to stay, noting that the outcome
of this appeal does not preclude Nealy from filing subsequent motions for DNA testing.  See
Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (stating that chapter 64 of code of
criminal procedure "does not prohibit a second, or successive motion for forensic DNA testing").
		We have reviewed the record and counsel's brief and agree that the appeal is frivolous
and without merit.  We find nothing in the record that might arguably support the appeal. 
See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).  Counsel's motion to
withdraw is granted.
		The order denying DNA testing is affirmed.

						__________________________________________
						Diane M. Henson, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed:   November 20, 2008
Do Not Publish
