      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00191-CR



                                    In re James Edward Nealy


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 48,441, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               James Edward Nealy appeals from the district court’s order denying post-conviction

DNA testing. Nealy’s court-appointed attorney 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). The principles of Anders have been extended to include appeals of a trial

court’s ruling on a motion for post-conviction DNA testing. See Murphy v. State, 111 S.W.3d 846,

847-48 (Tex. App.—Dallas 2003, no pet.).

               Nealy received a copy of counsel’s brief and was advised of his right to examine the

appellate record and to file a pro se brief. No pro se brief has been filed, although Nealy did file a

motion for “Stay of Proceedings in the Appeal Court” to allow him the opportunity to refile his
motion for DNA testing in district court. We overrule the motion to stay, noting that the outcome

of this appeal does not preclude Nealy from filing subsequent motions for DNA testing. See

Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (stating that chapter 64 of code of

criminal procedure “does not prohibit a second, or successive motion for forensic DNA testing”).

              We have reviewed the record and counsel’s brief and agree that the appeal is frivolous

and without merit. We find nothing in the record that might arguably support the appeal.

See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Counsel’s motion to

withdraw is granted.

              The order denying DNA testing is affirmed.



                                             __________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: November 20, 2008

Do Not Publish




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