       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-20-00017-CR


                                  Ex parte Curtis McDaniel


               FROM THE 424TH DISTRICT COURT OF BURNET COUNTY
            NO. 50155, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Curtis McDaniel has been charged with five counts of aggravated sexual assault.

See Tex. Penal Code § 22.021. The charges all pertain to the same victim and stem from conduct

in October 2006. Before being charged with aggravated sexual assault, McDaniel was placed

on deferred-adjudication community supervision in 2019 for the offense of possession of a

controlled substance and was required to submit a DNA sample to the Combined DNA Index

System (“CODIS”) as part of his community supervision. A few months later, a routine database

search run by the Department of Public Safety CODIS Laboratory revealed a CODIS “hit”

linking McDaniel to the testing performed during the criminal investigation of the 2006 offenses,

and McDaniel was subsequently charged with the offenses listed above.

              After being charged, McDaniel filed a pretrial application for writ of habeas

corpus arguing that he was being unlawfully restrained because the aggravated-sexual-assault

charges were “brought outside the statute of limitations.” In response, the State argued that the

prosecution was not barred by limitations because the version of article 12.01 of the Code of

Criminal Procedure in effect at the time of the alleged crimes specified that there is no statute
of limitations for the offense of sexual assault “if during the investigation of the offense

biological matter is collected and subjected to forensic DNA testing and the testing results show

that the matter does not match the victim or any other person whose identity is readily

ascertained.” See Act of May 30, 2005, 79th Leg., R.S., ch. 1162, § 6, art. 12.01, 2005 Tex. Gen.

Laws 3802, 3806 (amended 2007, 2009, 2011, 2013, 2015, 2017) (current version at Tex. Code

Crim. Proc. art. 12.01).

               During the hearing on McDaniel’s application, evidence was presented indicating

that McDaniel was one of eleven persons of interest that the police considered in the case, that no

individual suspect was identified, and that the investigation was closed in 2007. In addition, a

report regarding testing performed on samples taken from the victim in 2006 revealed that “[a]n

unknown male contributor cannot be excluded as the contributor of the major component in the

profile,” and the report also explained that the DNA profile was uploaded into CODIS in 2007.

After considering the parties’ arguments, the district court denied McDaniel’s habeas application.1

See Ex parte Lovings, 480 S.W.3d 106, 108, 112 (Tex. App.—Houston [14th Dist.] 2015, no

pet.) (rejecting argument that statutory exception to limitations does not apply if State could have

but did not look for match earlier and determining that exception to limitations found in article

12.01 applied to case where testing showed DNA from sexual-assault victim and “at least one




       1
         In addition to the five counts of aggravated sexual assault, McDaniel was also charged
with one count of aggravated assault with a deadly weapon and one count of aggravated
kidnapping, see Tex. Penal Code §§ 20.04, 22.02, and his writ application also alleged that those
offenses were barred by their respective statute of limitations. During the hearing addressing
McDaniel’s habeas application, the State conceded that those counts were barred by the
governing statutes of limitations and informed the district court that it would be dismissing those
counts. See Tex. Code Crim. Proc. arts. 12.01(4), .03(d); State v. Schunior, 506 S.W.3d 29, 37
(Tex. Crim. App. 2016).
                                                 2
other male donor” and where there was CODIS hit one decade later when DNA report was

uploaded). McDaniel appeals the district court’s ruling.

                   McDaniel’s court-appointed attorney on appeal has filed a motion to withdraw

supported by a brief concluding that the appeal is frivolous and without merit. Counsel’s brief

meets the requirements of Anders v. California by presenting a professional evaluation of the

record and demonstrating that there are no arguable grounds to be advanced. See 386 U.S. 738,

744-45 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson

v. Ohio, 488 U.S. 75, 81-82 (1988) (explaining that Anders briefs serve purpose of “assisting the

court in determining both that counsel in fact conducted the required detailed review of the case

and that the appeal is . . . frivolous”). McDaniel’s counsel has represented to the Court that he

provided copies of the motion and brief to McDaniel; advised McDaniel of his right to examine

the appellate record, file a pro se brief, and pursue discretionary review following the resolution

of the appeal in this Court; and provided McDaniel with a form motion for pro se access to the

appellate record along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d 313,

319-20 (Tex. Crim. App. 2014). McDaniel has not requested a copy of the appellate record.

After this case was submitted, McDaniel filed a letter with this Court arguing that his identity

was readily ascertainable because he was known by multiple law-enforcements officers and

other officials.

                   We have independently reviewed the record and McDaniel’s letter and have

found nothing that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner,

300 S.W.3d at 766. We agree with counsel that the appeal is frivolous and without merit. We

grant counsel’s motion to withdraw and affirm the district court’s order denying McDaniel’s

application for writ of habeas corpus.

                                                 3
                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: April 2, 2020

Do Not Publish




                                               4
