Opinion issued February 14, 2013




                                      In The
                               Court of Appeals
                                     For The
                          First District of Texas

                              NO. 01-12-00594-CR
                                    ____________

                    RICHARD ALAN DELOACH, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1057524


                          MEMORANDUM OPINION

      Appellant, Richard Alan DeLoach, filed a motion for post-conviction DNA

testing in the trial court. See TEX. CODE CRIM. PROC. ANN. ch. 64 (West 2006 &

Supp. 2012). The trial court denied the motion, finding that no biological evidence
existed for testing. The trial court certified that appellant had the right of appeal.

Appellant timely filed a notice of appeal.

      Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967).

      Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      In three enumerated “arguable grounds,” DeLoach asserts in his pro se

response that the record reflects that a DNA specimen was collected from him.

Based on that fact alone, he contends that the State wrongly suggested that it

possessed no relevant DNA evidence, see TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(1) (West Supp. 2012), the trial court erred in so finding, and his appointed

counsel must not have reviewed the entire record.


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      The fundamental flaw in DeLoach’s logic stems from the circumstances

under which his DNA specimen was collected.           The record reflects that this

occurred pursuant to the statutory directive of Government Code section 411.1471,

which requires that an indicted defendant in his circumstances “provide to a law

enforcement agency one or more specimens for the purpose of creating a DNA

record.” See TEX. GOV’T CODE ANN. § 411.1471(b) (West 2012). The context of

this statutory requirement is to provide data for the State’s computerized DNA

database, see id. § 411.142, the principal purpose of which is “to assist a federal,

state, or local criminal justice agency in the investigation or prosecution of sex-

related offenses or other offenses in which biological evidence is recovered,” id.

§ 411.143(a). Thus, DeLoach is correct that the record reflects that he provided a

DNA specimen to the Harris County Sheriff’s Office. Nevertheless, he still has

made no showing that there was any other biological evidence collected in

connection with the allegations against him, which would be necessary to establish

by a preponderance of the evidence that DNA testing could result in his

exoneration. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2). Our independent

review of the entire record has revealed no indication of any such evidence.

      The record does not reflect that the Harris County Sherriff’s Office retained

DeLoach’s DNA specimen, nor does it reflect what was done with the specimen


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after it was collected.   See TEX. GOV’T CODE ANN. § 411.146(d) (requiring a

“criminal justice agency that collects a DNA sample under this section” to “send the

sample” to: (1) the public safety director at the crime laboratory of the Department

of Public Safety of the State of Texas; or (2) “another location as required by the

director by rule”). In any case, the record of the collection of DeLoach’s DNA

specimen is not inconsistent with the State’s later representations and the trial

court’s consistent findings that no testable DNA evidence existed. See TEX. CODE

CRIM. PROC. ANN. art. 64.03(a)(1). Moreover, even to the extent DNA evidence

collected pursuant to Government Code section 411.1471 may exist, such evidence

could not lead to DeLoach’s exoneration, see TEX. CODE CRIM. PROC. ANN. art.

64.03(a)(2), absent some additional DNA evidence related to the charged offenses

so that the two specimens could be compared.

      We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);


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Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,

193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by

reviewing entire record). An appellant may challenge a holding that there are no

arguable grounds for appeal by filing a petition for discretionary review in the Court

of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

      We affirm the judgment of the trial court and grant counsel’s motion to

withdraw. 1 Attorney J. Sidney Crowley must immediately send the notice required

by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c).

                                   PER CURIAM

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




1
      Appointed counsel still has a duty to inform appellant of the result of this appeal
      and that he may, on his own, pursue discretionary review in the Texas Court of
      Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
      1997).
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