Charles Lamar Hicks v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 24, 2024
• Docket: 09-23-00199-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00199-CR __________________

CHARLES LAMAR HICKS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. F12-13646 __________________________________________________________________

MEMORANDUM OPINION

Appellant Charles Lamar Hicks appeals from the trial court’s order denying

his motion for post-conviction DNA testing under Chapter 64 of the Texas Code of

Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01, 64.03, & 64.05.

The trial court denied the motion, and Hicks challenged the trial court’s order by

filing this appeal.

We previously reviewed the direct appeal of Hicks’s conviction for

aggravated robbery. See Hicks v. State, No. 09-12-00474-CR, 2013 Tex. App.

1 LEXIS 8355 (Tex. App.—Beaumont July 10, 2013, pet. ref’d) (mem. op., not

designated for publication). In 2012, a jury found Hicks guilty as charged and

sentenced him to life in prison as a habitual offender. See id. at *1; see also Tex.

Penal Code Ann. § 29.02(a)(2), 29.03(a)(2). This Court affirmed Hicks’s conviction,

concluding that the evidence was sufficient. Hicks, 2013 Tex. App. LEXIS 8355, at

*6, *9. All four family members who were victimized in the crime testified at trial

and identified Hicks as the perpetrator. See id. at **1-3.

Then in February of 2023, Hicks filed a pro se post-conviction motion

requesting “Y-Chromosome (Y-STR”) DNA testing” of several articles of evidence

in his case. In May of 2023, the trial court denied Hicks’s motion, and in the order

denying the motion the trial court states that, after considering Hicks’s motion, the

trial court’s file from Hicks’s conviction for aggravated robbery, and this Court’s

opinion in Hicks’s direct appeal, Hicks had not met his burden of proof, he had not

identified any physical evidence in the State’s possession that could contain

biological evidence amenable to DNA testing, and he had not “established by a

preponderance of the evidence that he would not have been convicted if

‘exculpatory’ results had been obtained through DNA testing.” See Tex. Code Crim.

Proc. Ann. art. 64.03. Hicks then filed a notice of appeal challenging the trial court’s

denial of his motion for post-conviction DNA testing.

2 On appeal, Hicks’s court-appointed attorney filed a brief stating that he has

reviewed the case, and, based on his professional evaluation of the record and

applicable law, there are no arguable grounds for reversal. See Anders v. California,

386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We

granted an extension of time for Hicks to file a pro se brief, and Hicks filed a pro se

brief in response. The State subsequently filed a brief.

The Court of Criminal Appeals has held that when a court of appeals receives

an Anders brief and a pro se brief, the appellate court has two choices. See Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). “It may determine that

the appeal is wholly frivolous and issue an opinion explaining that it has reviewed

the record and finds no reversible error[;] [o]r, it may determine that arguable

grounds for appeal exist and remand the cause to the trial court so that new counsel

may be appointed to brief the issues.” Id. We do not address the merits of each claim

raised in an Anders brief or a pro se brief when we have determined there are no

arguable grounds for review. Id. at 827.

Upon receiving an Anders brief, this Court must conduct a full examination

of all the proceedings to determine whether the appeal is wholly frivolous. Penson

v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have made a

full examination and reviewed the entire record of the proceedings, and we have

found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at

3 827-28 (“Due to the nature of Anders briefs, by indicating in the opinion that it

considered the issues raised in the briefs and reviewed the record for reversible error

but found none, the court of appeals met the requirements of Texas Rule of Appellate

Procedure 47.1”). Therefore, we find it unnecessary to order the appointment of new

counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991). We affirm the trial court’s order. 1

AFFIRMED.

LEANNE JOHNSON Justice

Submitted on January 5, 2024 Opinion Delivered January 24, 2024 Do Not Publish

Before Horton, Johnson and Wright, JJ

1 Hicks may challenge our decision in this case by filing a petition for discretionary review with the Texas Court of Criminal Appeals. See Tex. R. App. P. 68. 4