in Re Wesley Joe Jackson

• Court: Court of Appeals of Texas
• Decided: January 20, 2011
• Docket: 03-10-00037-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00037-CR

In re Wesley Joe Jackson

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 90,479, HONORABLE BOB PERKINS, JUDGE PRESIDING

MEMORANDUM OPINION

In 1988, a jury convicted appellant Wesley Joe Jackson of the offense of aggravated

sexual assault and assessed punishment at 60 years’ imprisonment. In 2004, Jackson filed a

motion for post-conviction DNA testing. The district court granted the motion and ordered the

Texas Department of Public Safety to conduct testing. Further testing was ordered on December 12,

2007.

DPS conducted testing on the physical evidence gathered after the assault, including

vaginal swabs from the sexual assault kit and a towel used by the victim, and compared the results

to Jackson’s DNA profile. In the report of its findings, DPS concluded the following:

The DNA profile from the sperm fractions of the vaginal swab and a stain from the towel is consistent with the DNA profile of Wesley Jackson. Wesley Jackson cannot be excluded as the contributor of the stains. The probability of selecting an unrelated person at random who could be the source of this DNA profile is approximately 1 in 410.7 sextillion for Caucasians, 1 in 25.60 quintillion for Blacks,[1] and 1 in 494.3 sextillion for Hispanics. To a reasonable degree of

1 Jackson is an African-American male. scientific certainty, Wesley Jackson is the source of the sperm fractions of the vaginal swab and the stain from the towel (excluding identical twins).

The partial DNA profiles from the stain from the towel packaging and the epithelial cell fraction of the vaginal swab are consistent with the DNA profile of [the victim].

On December 29, 2009, the district court entered findings of fact consistent with

the above findings by DPS. The district court concluded that “[t]he above-described DNA testing

did not yield any exculpatory results” and, “[h]ad the results of the above-described DNA testing

been available during the trial in the instant case, it is reasonably probable that the defendant would

have been convicted.” See Tex. Code Crim. Proc. Ann. art. 64.04 (West 2009). This appeal

followed.

Jackson’s court-appointed attorney has filed a motion to withdraw supported by

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). Jackson received a copy of counsel’s brief and

has submitted a written response objecting to counsel’s motion to withdraw and asserting reasons

why he does not believe the appeal is frivolous.

We have reviewed the record, counsel’s brief, and Jackson’s written response

and find no reversible error. See Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009);

Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the

2 appeal is frivolous and without merit. Counsel’s motion to withdraw is granted. The district court’s

order is affirmed.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: January 20, 2011

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