Roger Eugene Fain v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 7, 2022
• Docket: 02-21-00123-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00123-CR ___________________________

ROGER EUGENE FAIN, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1023944D

Before Kerr, Bassel, and Womack, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Roger Eugene Fain appeals the trial court’s order denying his motion to require

the State to compare unidentified DNA profiles found via Chapter 64 postconviction

DNA testing to the DNA profiles in the FBI’s and Texas Department of Public

Safety’s databases. See Tex. Code Crim. Proc. Ann. arts. 64.035, 64.05. We affirm.

Appellant’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion, in which counsel has determined, after

examining the appellate record, that no arguable grounds for appeal exist. See Anders

v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and

motion meet Anders’s requirements, presenting a professional evaluation of the entire

record demonstrating why there are no arguable grounds for relief. Id., 87 S. Ct. at

1400. Although provided the opportunity to seek a copy of the appellate record and

to file a pro se response, appellant has not done so. Likewise, the State did not

respond to the Anders brief.

After carefully reviewing the record and counsel’s brief, we agree with counsel

that this appeal is wholly frivolous and without merit. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991) (noting reviewing court’s duty to make independent

determination after reviewing record); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109 S.

Ct. 346, 351 (1988). Our independent review of the record reveals no arguable

grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.

2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We

2 therefore grant counsel’s motion to withdraw and affirm the trial court’s order

denying appellant relief.

Per Curiam

Do Not Publish Tex.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

Delivered: July 7, 2022