                                                                                    ACCEPTED
                                                                                14-14-00504-CR
                                                                FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          5/20/2015 10:17:52 AM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                 IN THE COURT OF APPEALS
          FOR THE FOURTEENTH DISTRICT OF TEXAS
                       AT HOUSTON               FILED IN
                                          14th COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                        5/20/2015 10:17:52 AM
                                                        CHRISTOPHER A. PRINE
LUCIOUS RAY JOHNSON                 §                            Clerk
    Defendant/Appellant

v.                                  § CASE NO. 14-14-00594-CR

THE STATE OF TEXAS
    Plaintiff/Appellee              §


                       APPELLANT’S BRIEF
                  ON APPEAL FROM DENIAL OF
                POST - CONVICTION DNA TESTING
                      TRIAL CASE NO. 0263473
                    TH
                 176 JUDICIAL DISTRICT COURT
                     HARRIS COUNTY, TEXAS




                          Thomas A. Martin
                        State Bar No. 50511495
                        1018 Preston, Suite 500
                        Houston, TX 77002-1824
                             713-222-0556
                          713-222-7022 (fax)


        Appellant’s Brief Filed Pursuant to Anders v. California

Statement regarding oral argument: Pursuant to Texas Rule of Appellate
Procedure Rule 39.7, Appellant waives oral argument in this case.
                   IDENTITY OF PARTIES AND COUNSEL

Trial Judge                      The Honorable Stacy Bond

Defendant/Appellant              Lucious Ray Johnson

State’s Attorney                 Aaron C. White
                                 State Bar No. 24060819
                                 Harris County District Attorney’s Office
                                 1201 Franklin, Suite 400
                                 Houston, TX 77002
                                 713-755-5800

Defendant’s DNA Testing
     Attorney                    Thomas A. Martin
                                 State Bar No. 50511495
                                 1018 Preston, Suite 500
                                 Houston, TX 77002-1824
                                 713-222-0556
                                 713-222-7022 (fax)

Appellant’s Appellate Attorney   Thomas A. Martin
                                 State Bar No. 50511495
                                 1018 Preston, Suite 500
                                 Houston, TX 77002-1824
                                 713-222-0556
                                 713-222-7022 (fax)




                                   i
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL          i

INDEX OF AUTHORITIES                     iii

STATEMENT OF THE CASE                    1

ISSUE PRESENTED                          3

STATEMENT OF FACTS                       4

SUMMARY OF THE ARGUMENT                  5

ARGUMENT                                 6

PRAYER                                   9

CERTIFICATE OF SERVICE                   10

CERTIFICATE OF COMPLIANCE                11




                             ii
                              INDEX OF AUTHORITIES

                                            CASES

Anders v. California, 386 U.S. 738 (1967)                   6, 8

Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002)   7, 8

Ex parte Baker, 185 S.W.3d 894, 898 (Tex.Crim.App. 2006)    8

Ex parte Suhre, 185 S.W.3d 898, 899 (Tex.Crim.App. 2006)    8

Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002)      6

Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004)     6

Johnson v. State, No. 14-06-00317-CR
      (Tex.App. - Houston [14th Dist.] 2007)(unpub.op.)     4


                                            CODES

Texas Code of Criminal Procedure art. 64.03                 7




                                              iii
                             STATEMENT OF THE CASE

       The following is offered as a Statement of the Case for appellate review:

       1.     On February 22, 1978, Lucious Ray Johnson was found guilty of the

felony offense of aggravated rape, in case # 263473, in the 176th district court of

Harris County, Texas. Supplemental Clerk’s Record April p. 14.1

       2.     Mr. Johnson was sentenced to 99 years TDC. Id.

       3.     Mr. Johnson has filed nine separate pro se applications for writ of habeas

corpus, all of which have been denied by the Texas Court of Criminal Appeals. Id.

       4.     On March 17, 2006, the trial court denied Mr. Johnson’s first motion for

post-conviction DNA testing due to a lack of evidence available for testing. Id.

       5.     On March 29, 2007, this Court affirmed the denial by the trial court of

Mr. Johnson’s motion for post-conviction DNA testing in an unpublished opinion.

Johnson v. State, No. 14-06-00317-CR (Tex.App. - Houston [14th Dist.]

2007)(unpub.op.). Id.

       6.     On September 27, 2010, Mr. Johnson filed his second pro se motion for

post-conviction DNA testing. SCRApr p. 15.



       1
         There is no Court Reporter’s Record in this case. There are two “supplemental” clerk’s
records, one provided to this Court on January 21, 2015, and the second provided to this Court on
April 9, 2015. The Clerk’s Record designations shall be set forth as “SCRJan “ or “SCRApr”
with appropriate page numbers.

                                               1
      7.    On May 2, 2014, the trial court again denied Mr. Johnson’s motion for

DNA testing based upon the lack of evidence available for testing. SCRApr p. 16.

      8.    Mr. Johnson subsequently filed a pro se notice of appeal. On December

9, 2014, the trial court subsequently appointed the undersigned counsel to represent

Mr. Johnson with his DNA testing appeal. SCRJan p. 3.

      9.    Appellant’s Appellate Brief is now timely filed if submitted on or before

May 20, 2015.




                                         2
                            ISSUE PRESENTED

I.   There are no issues presented for review. This is a brief filed pursuant to

     Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1397 (1967).

     Appellate counsel is contemporaneously filing a motion to withdraw.




                                      3
                            STATEMENT OF FACTS

      Appellant is appealing again the denial of his most recent motion for DNA

testing. On April 28, 2014, the State filed its findings of fact and motion denying

DNA testing. The State asked the trial court to deny testing because of the lack of

available evidence for testing. Most notably, this is the exact same ground for the

requested denial of testing that was cited in this Court’s earlier opinion issued on

March 29, 2007, and cited earlier in this document. See Johnson v. State, No. 14-06-

00317-CR (Tex.App. - Houston [14th Dist.] 2007)(unpub.op.). On May 2, 2014, the

trial court signed its order granting the State’s motion for denial of DNA testing.

      There is, unfortunately for Mr. Johnson, no new evidence available for testing.

The State’s affidavits clearly show there is no new evidence available for DNA

testing. The trial court made the appropriate ruling based upon the lack of available

evidence for DNA testing.




                                          4
                      SUMMARY OF THE ARGUMENT

I.    Whether there are any non-frivolous issues to present for review associated

      with the trial court’s denial of Mr. Johnson’s second motion for post-

      conviction DNA testing.

      There are no non-frivolous issues to present for review related to Mr. Johnson’s

second motion for post-conviction DNA testing.

      There is no evidence in the record that shows that there is any biological

evidence that can be tested for DNA. Therefore, the trial court acted properly in

denying appellant’s second DNA motion.

      Appellate counsel is filing a contemporaneous motion to withdraw.




                                          5
                                    ARGUMENT

Standard of Review

      This Court reviews a trial court’s decision to DNA testing under a bifurcated

standard of review. See Whitaker v. State, 160 S.w.3d 5, 8 (Tex.Crim.App. 2004).

This Court defers to the trial court’s determination of issues of historical fact and

application of law to fact issues that turn on credibility and demeanor, while it

reviews de novo other application of law to fact issues. Id. Employing this standard,

this Court defers to a trial court’s finding as to whether the claimed DNA evidence

exists and exists in a condition capable of testing. Rivera v. State, 89 S.W.3d 55, 59

(Tex.Crim.App. 2002).

Argument & Authorities

      Appellant counsel has reviewed the entire record in this case, and believes that

there are no arguable issues to present to this Court on appeal. Appellant counsel

believes that any issue raised in connection with the denial of DNA testing due to the

lack of available evidence suitable for testing is without merit on appeal. Since there

are no arguable issues to raise on appeal, this case is guided by Anders v. California,

386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1397 (1967).

      Under Texas Code of Criminal Procedure art. 64.03, a trial court may order

forensic DNA testing only if the court first finds that the evidence still exists and is

                                           6
in a condition making DNA testing possible. TEX.CODE CRIM.PRO. Art.

64.03(a)(1)(A)(i); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002).

      On April 28, 2015, the State filed its motion requesting the trial court to deny

DNA testing based upon the lack of available evidence. SCRApr p. 3-13. The State

based its motion upon the affidavits of Barbara Anderson, Lori Bates Wilson, Joseph

Hill, Marilyn Skinner, and Q. Thigpen. Id. All of the affidavits essentially state the

following fact: after a diligent and thorough search of property in their respective

agency’s possession, their respective agency is not in possession of any biological

material suitable for DNA testing.

      Pursuant to Texas Code of Criminal Procedure art. 64.03(a)(1), the failure to

show that evidence still exists and is in a condition making testing possible is

sufficient reason to deny testing.

      As this Court well knows, the State is not obligated or responsible for

generating or collecting new biological material in support of a defendant’s post-

conviction DNA motion for testing.

      In this situation with a second motion for DNA testing, while it is possible that

a trial court could legally grant a subsequent motion for DNA testing after denying

an original motion, there must first be evidence that “still exists” and that can be

tested before a judge can grant an order for such testing. TEX.CODE CRIM.PRO. Art.

                                          7
64.03(a)(1)(A)(i); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). In

this case, there is no evidence in the record that shows that there is any evidence that

still exists and can be tested for DNA purposes. See Ex parte Suhre, 185 S.W.3d 898,

899 (Tex.Crim.App. 2006); Ex parte Baker, 185 S.W.3d 894, 898 (Tex.Crim.App.

2006).

      Therefore, there are no arguable issues to raise on appeal. Anders v. California,

386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1397 (1967). The issues that have been

researched by appellate counsel are well settled, and the rulings or opinions on those

issues are not favorable to Mr. Johnson. Counsel respectfully requests that he be

allowed to withdraw from this appeal.




                                           8
                                      PRAYER

      For these reasons, the undersigned counsel respectfully prays that this Court

find that there are no non-frivolous arguments to present for review in this DNA

testing appeal, allow counsel’s request to withdraw from further representation, and

for all such other relief to which he may be justly entitled.

                                               Respectfully submitted,

                                               /s/ Thomas A. Martin


                                               Thomas A. Martin
                                               Appellant’s Counsel




                                           9
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct of the foregoing Appellant’s Brief has
been provided all parties and/or counsel of record in accordance with the Texas Rules
of Appellate Procedure on May 20, 2015.

Harris County District Attorney’s Office
Appellate Division
1201 Franklin
6th Floor
Houston, TX 77002

Mr. Lucious Ray Johnson
4303 Botany Lane
Houston, TX 77047

                                              /s/ Thomas A. Martin

                                              Thomas A. Martin




                                         10
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rules of Appellate Procedure 9.4( i)(3), the undersigned

counsel certifies that this brief complies with the type-volume limitations of Texas

Rules of Appellate Procedure 9.4(i).

1.    Exclusive of the portions exempted by Texas Rules of Appellate Procedure

      9.4(i), this brief contains 1,763 words printed in proportionally spaced

      typeface.

2.    This brief is printed in proportionally spaced serif typeface using Times New

      Roman 14 point font in text and Times New Roman 12 point font in footnotes

      produced by WordPerfect Office X6 software.

3.    Upon request, the undersigned counsel will provide an electronic version of

      this brief and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in

      completing this certificate, or circumvention of the type-volume limits in Texas

      Rules of Appellate Procedure 9.4(i) may result in the Court’s striking this brief

      and imposing sanctions against the person who signed it.

                                               /s/ Thomas A. Martin


                                               Thomas A. Martin



                                          11
