      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        ON REHEARING


                                      NO. 03-03-00327-CR




                                        In re Perry Wiley




      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 26,278, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Perry Wiley is serving a thirty-year sentence imposed in 1978 following

his conviction for burglary with intent to commit sexual abuse. On June 14, 2002, Wiley filed a pro

se request for appointment of counsel for the purpose of post-conviction DNA testing. See Tex.

Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2003). An attorney was appointed ten days later.

On April 2, 2003, counsel filed "defense attorney's position on defendant's request for DNA testing."

In this document, counsel informed the court that her investigation revealed that the only biological

evidence collected by the police, oral swabs from the complainant, had tested negative for

spermatozoa and had been destroyed by the laboratory in 1982. Counsel concluded that, under the

circumstances, a motion for DNA testing would be frivolous.
               Although no formal request for DNA testing was filed, the State filed a response

summarizing the facts of the case and urging that Wiley had not demonstrated his entitlement to

DNA testing. Id. art. 64.02. The district court subsequently refused to order DNA testing, finding

that the evidence for which testing was sought had been destroyed and that Wiley had failed to

demonstrate that he would not have been prosecuted or convicted if exculpatory DNA test results

had been obtained. Id. art. 64.03(a)(1)(A)(i), (2)(A). This appeal followed.

               The new attorney appointed to represent Wiley on appeal 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). After reviewing the record, we agreed with counsel’s evaluation and affirmed

the district court’s order on October 2, 2003.

               Wiley filed a pro se motion for rehearing complaining that he was not given an

adequate opportunity to examine the record and file a pro se brief. We granted the motion and

withdrew the October 2 opinion and judgment. Wiley has since filed his pro se brief in response to

counsel’s frivolous appeal brief.

               Wiley makes four contentions in his pro se brief: (1) the attorney appointed pursuant

to article 64.01(c) rendered ineffective assistance; (2) the attorney appointed to represent him on

appeal rendered ineffective assistance; (3) he did not commit the offense for which he was convicted;


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and (4) he is the victim of a continuing conspiracy involving the trial court, the district attorney, and

the lawyers who have represented him. There is no constitutional right to effective counsel in a

chapter 64 DNA proceeding. In re Beasley, 107 S.W.3d 696, 698 (Tex. App.—Austin 2003, no

pet.). In any event, none of the allegations Wiley makes against his attorneys are supported by the

record before us. Similarly, his assertions that he is the innocent victim of a conspiracy are also

without support in the present record.

                We have reviewed the record, counsel's brief, and the pro se brief. We again conclude

that the appeal is frivolous and without merit. Counsel's motion to withdraw is granted.

                The district court's order is affirmed.




                                                __________________________________________

                                                Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: January 29, 2004

Do Not Publish




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