                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00152-CR

BRUCE WILLIAMS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                           Trial Court No. 2012-50-C2


                          MEMORANDUM OPINION


      Bruce Williams was charged with the offense of sexual assault. See TEX. PENAL

CODE ANN. § 22.011 (West 2011). He confessed to police, plead guilty to the court, and

allowed the jury to assess punishment. He was convicted and sentenced to 85 years in

prison. His conviction was affirmed and a petition for discretionary review was denied.
Later, Williams filed a motion for DNA testing which was denied. 1 See TEX. CODE CRIM.

PROC. ANN. art. 64.01, et seq. (West 2018).

        Williams’s appellate attorney filed a motion to withdraw and an Anders brief in

support of the motion to withdraw, asserting that the appeal presents no issues of

arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

Counsel advised Williams that counsel had filed the motion and brief pursuant to Anders

and provided Williams a copy of the record, advised Williams of his right to review the

record, and advised Williams of his right to submit a response on his own behalf.

Williams submitted a response. The State advised the Court that it would not reply.

        Counsel asserts in the Anders brief that counsel has made a thorough review of the

record for non-frivolous issues, including whether Williams met the threshold

requirements of Chapter 64 of the Texas Code of Criminal Procedure to require DNA

testing, whether there was fundamental error in Williams’s criminal trial on the merits,

and whether counsel at any stage was ineffective in the representation of Williams. After

the review, counsel has concluded there is no non-frivolous issue to raise in this appeal.


1
 The trial court’s denial was at the end of a document entitled, “Findings and Conclusions of the Convicting
Court on Defendant’s Motion under Chapter 64, Texas Code of Criminal Procedure.” We express no
opinion regarding the propriety of combining findings of fact and the trial court’s ruling in the same
document. The practice is not used in most civil litigation. See TEX. R. CIV. P. 299a. But see e.g. TEX. R. CIV.
P. 306 (“In a suit for termination of the parent-child relationship or a suit affecting the parent-child
relationship filed by a governmental entity for managing conservatorship, the judgment must state the
specific grounds for termination or for appointment of the managing conservator.”); TEX. FAM. CODE ANN.
§ 157.166 (West 2014) ("An enforcement order must include: (1) in ordinary and concise language the
provisions of the order for which enforcement was requested; (2) the acts or omissions that are the subject
of the order; (3) the manner of the respondent’s noncompliance; and (4) the relief granted by the court.”).


Williams v. State                                                                                       Page 2
Counsel's brief evidences a professional evaluation of the record for error, and we

conclude that counsel performed the duties required of appointed counsel. See Anders,

386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re

Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

        In this regard, counsel’s brief is worthy of specific comment. This appeal is odd

because the trial court initially appointed counsel for the DNA proceeding and then

determined that identity was not an issue and the defendant was not entitled to post-

conviction DNA testing. Having thus appointed counsel but denied the motion for DNA

testing, the defendant wanted to appeal. The trial court appointed counsel for an appeal.

        Counsel’s appellate brief evidences a level of review and independent thought and

analysis that is unexpected in Anders briefs. Due to the unusual nature of the legal issues

and the procedural posture of the proceeding, counsel explained several potential issues

including a complete review of the original trial record to see if he could build a case for

making identity an issue.       It just was not there.    Counsel even explored whether

ineffective assistance of counsel caused the identity to not be an issue.

        In the argument section of his brief, counsel succinctly sets out the facts and

the law as to why identity was not an issue, as follows:

                The most problematic facts pertaining to this issue are:

                a) The victim identified appellant as the perpetrator and
                appellant confessed to a detective in 2005 to having raped the
                victim.
                b) The indictment against appellant only alleged penetration
Williams v. State                                                                         Page 3
                of the victim’s vagina, not her anus.
                c) Appellant admits by affidavit, on March 25, 2016, that he
                had vaginal intercourse albeit consensual with the victim.
                d) Appellant judicially confesses and enters a plea of guilty to
                the indictment, on April 23, 2013 after being admonished
                properly by the judge and with advice of counsel.
                e) Appellant again admits by affidavit, on January 27, 2017,
                that he had consensual vaginal sex with the victim.

               In conclusion, appellant has consistently before, during, and post-trial
        continued to admit he is the individual that had vaginal intercourse with the victim.
        The only difference is that he now is trying to buttress a defense ostensibly
        through DNA. The court is not required to order DNA testing to shore up
        a defense or to show that third-party semen may exist when the appellant
        admits repeatedly to sexual conduct with the victim. The facts and law
        clearly defeat the “identity” issue. Therefore, appellant’s DNA motion
        should fail for this reason alone.

(Citations to the record and case authority are omitted. Emphasis is original to the brief).

        In his response to counsel's Anders brief, Williams contends he was denied the

right to confrontation, the DNA test results were unreliable, and identity was an issue.

The record does not support Williams's contentions.

        Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably

persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.

Ed. 2d 440 (1988).

        Having carefully reviewed the entire record and the Anders brief, we have


Williams v. State                                                                               Page 4
determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.

Crim. App. 2005). Accordingly, we affirm the trial court's Findings and Conclusions of

the Convicting Court on Defendant’s Motion under Chapter 64, Texas Code of Criminal

Procedure signed on April 19, 2017.

        Should Williams wish to seek further review of this case by the Texas Court of

Criminal Appeals, Williams must either retain an attorney to file a petition for

discretionary review or must file a pro se petition for discretionary review. No substitute

counsel will be appointed. Any petition for discretionary review must be filed within

thirty days from the date of this opinion or the last timely motion for rehearing or timely

motion for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P.

68.2. Any petition and all copies of the petition for discretionary review must be filed

with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3 (Tex. Crim. App.

1997, amended eff. Sept. 1, 2011). Any petition for discretionary review should comply

with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 68.4. See also In re Schulman, 252 S.W.3d at 409 n.22.

        Counsel's motion to withdraw from representation of Williams is granted, and

counsel is discharged from representing Williams in this appeal. Notwithstanding

counsel’s discharge, counsel must send Williams a copy of our decision, notify him of his

right to file a pro se petition for discretionary review, and send this Court a letter

certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP.


Williams v. State                                                                    Page 5
P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 13, 2018
Do not publish
[CRPM]




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