Nunfio, Gilberto Aguilar v. State

• Court: Court of Appeals of Texas
• Decided: March 3, 2005
• Docket: 14-04-00616-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 3, 2005

Affirmed and Memorandum Opinion filed March 3, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00616-CR

GILBERTO AGUILAR NUNFIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 503,416

M E M O R A N D U M   O P I N I O N

Appellant=s original conviction for aggravated sexual assault with a deadly weapon was reversed on petition for discretionary review by the Court of Criminal Appeals.  See Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991).  Appellant was again convicted of the same offense and sentenced to life in prison.  Appellant=s second conviction was affirmed.  See Nunfio v. State, No. 10-92-00124-CR (Tex. App.CWaco Dec. 30, 1992, no pet.) (not designated for publication).

Appellant filed a motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 64.01 B 64.05 (Vernon Supp. 2004-05).  The trial court denied the request and entered findings of fact and conclusions of law on June 18, 2004.  The trial court found, among other matters, that appellant failed to make the requisite showing that biological evidence exists and is in a condition making DNA testing possible.  Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  As of this date, more than forty-five days have elapsed, and no pro se response has been filed.

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit.  Further, we find no reversible error in the record.  A discussion of the brief would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 3, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).