Kenneth McGregor v. The State of Texas--Appeal from 182nd District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-03-00023-CR

Case Date: 03/04/2004

Plaintiff: Nicholas DeWhite Brooks

Defendant: Harris County District Attorney's Office and Tommy B. Thomas, Sheriff of Harris County, Texas--Appe

Preview:Kenneth McGregor v. The State of Texas--Appeal from
182nd District Court of Harris County
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Opinion Issued March 4, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00023-CR
KENNETH MCGREGOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 531483
MEMORANDUM OPINION
Appellant, Kenneth McGregor, pleaded guilty to sexual assault in 1990. In accordance with the State s
recommendation, the trial court assessed punishment at 20 years confinement. In 2002, appellant filed a motion for
post-conviction DNA testing. The trial court denied appellant s motion. In three issues presented for review, appellant,
in his pro se brief, claims that (1) the evidence is legally insufficient to support the verdict; (2) the evidence establishes
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that his plea bargain was induced by force because trial counsel was not competent to examine any of the facts which
have been found by the FBI lab technicians, and a thorough investigation was not properly conducted by the
investigators; and (3) the Houston Police Crime Lab technicians and the State prosecutor have been found shut down
by misconduct and routinely found using the lab wrongfully and mishandling DNA testing, and therefore we should
review the lab s decision. We dismiss in part and affirm in part.
Background
Appellant s counsel filed a motion to withdraw from appellant's representation on appeal because she concluded that
there are no arguable grounds of error. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396 (1967), by presenting a professional evaluation of the record and stating why no arguable grounds for error on
appeal exist. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App.1969). Counsel has advised appellant of her
evaluation and informed him of his right to file a pro se response, and appellant has filed a response.
Appellant was sentenced to 20 years confinement after pleading guilty to the offense of sexual assault in September
1990. No appeal was taken on the conviction. In November 2002, appellant filed a motion pursuant to chapter 64 of
the Texas Code of Criminal Procedure seeking DNA testing of evidence containing biological material. The trial court
appointed counsel to assist appellant in the proceeding. The State responded to appellant's motion with three sworn
affidavits. The affidavit of Melchora Vasquez, clerk for the Harris County District Clerk s Office, states that the Clerk
s office has no items of evidence in its possession. The affidavit of K.L. McGinnis, property custodian for the Houston
Police Department, notes that the evidence maintained in appellant s sexual assault case and in the possession of the
Houston Police Department was destroyed on May 12, 1989. Finally, the affidavit of Jim Bolding, custodian for the
Houston Police Department Crime Laboratory, states that there are no items of evidence pertaining to appellant s
sexual assault case in the Houston Police Department Crime Laboratory. The trial court accepted the State s finding of
facts and conclusions of law and denied appellant s motion for DNA testing on the basis that no genetic material was
available for testing.
Discussion
In his first two issues presented in his pro se brief, appellant raises issues related to his original conviction and plea
bargain. We do not address the merits of these complaints because they may be appealed only directly. See Watson v.
State, 96 S.W.3d 497, 500 (Tex. App. Amarillo 2002, pet. ref d) (holding that appeal from denial of Chapter 64 motion
is limited to findings of lower court under articles 64.03 or 64.04 in non-capital case). Thus, we must dismiss appellant
s first and second issues.
In his third issue, appellant argues that we should review the State s assertion that no biological material existed
because a recent review of the Houston Police Department Crime Lab found technicians errors. The trial court,
however, found that the evidence from appellant s sexual assault conviction in the possession of the Houston Police
Department had been destroyed and that no remaining evidence in his underlying case exists. Because there is no
evidence that could be subjected to DNA testing, the trial court did not abuse its discretion in denying appellant's
motion. See Murphy v. State, 111 S.W.3d 846, 849 (Tex. App. Dallas 2003, no pet.) (holding appeal from order
denying DNA testing was frivolous because, among other things, no DNA evidence existed). We overrule appellant s
third issue.
Conclusion
We affirm the judgment of the trial court denying appellant s request for DNA testing and dismiss that portion of
appellant s appeal relating to his original conviction and plea bargain. We grant appellate counsel s motion to
withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App. Houston [1st Dist.] 2000, no pet.). We note that
counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his
own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.
Crim. App. 1997).
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Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Bland.
Do not publish. Tex. R. App. P. 47.4.
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