NO. 12-03-00291-CR

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

HAROLD GLENN GLAZE,                             '                 APPEAL FROM THE 123RD

APPELLANT

V.                                                                         '                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                       '                 SHELBY COUNTY, TEXAS

                                                      MEMORANDUM OPINION

                                                                  PER CURIAM

Harold Glenn Glaze (AAppellant@) appeals the trial court=s denial of his motion for DNA testing.  Appellant=s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).  We affirm.

Background

On April 19, 1993, Appellant pleaded guilty to the felony offense of aggravated sexual assault with a deadly weapon and was sentenced to thirty years of imprisonment.  Specifically, Appellant was convicted of aggravated sexual assault with a deadly weapon for penetrating his wife=s anus with a tire tool.  On April 16, 2002, Appellant filed a pro se motion for forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2003).  The trial court later appointed counsel to represent him at any future hearings on the motion. 

The motion was heard on April 11, 2003.  Appellant=s counsel argued that if the tire tool was tested for DNA evidence, the test would come back negative because there would be no fecal matter on the tire tool, thus exonerating him of the crime of aggravated sexual assault.  The State argued, and Appellant=s counsel agreed, that the motion should be denied because Appellant=s identity was not an issue in the case.  The trial court agreed with the State and overruled Appellant=s motion on May 5, 2003.  Appellant timely filed his notice of appeal on May 31.

Appellant=s counsel has filed what purports to be an Anders brief stating that the appeal is frivolous and without merit.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d  493 (1967).  Counsel=s brief contains a professional evaluation of the record demonstrating why, under the controlling authorities, there is no error in the court=s judgment.  See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).  Counsel served a copy of his brief on Appellant, and though Appellant was advised of his right to file a pro se brief by counsel, he has not done so.  However, we are hesitant to presume that an Anders analysis is appropriate for reviewing a trial court=s findings on a motion for DNA testing, so we will review the case on its merits before considering counsel=s motion to withdraw.

Analysis

The convicting court may order forensic DNA testing only if 1) the court finds that the evidence still exists in a condition making DNA testing possible and has been subjected to a sufficient chain of custody to establish its integrity, 2) identity was or is an issue in the case, and 3) the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.  Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2003).  In the instant case, the trial court found that because identity was not an issue in the case, Appellant failed to meet his burden of proving the elements necessary to obtain the testing under article 64.03.

In reviewing the trial court=s decision, we employ the Guzman bifurcated standard of review by affording almost total deference to a trial court=s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues.  Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).  The trial court=s determination that a reasonable probability did not exist that exculpatory DNA tests would prove innocence is an application-of-law-to-fact issue that does not turn on credibility and demeanor; therefore, this issue is reviewed de novo.  Id.

At the hearing on Appellant=s motion, Appellant did not testify, and Appellant=s counsel agreed with the State that Appellant=s identity was not an issue in the case.  Not even a scintilla of  evidence was submitted to the court to raise an issue as to whether Appellant penetrated his wife=s anus with the tire tool.  Appellant has not shown by a preponderance of the evidence a reasonable probability the exculpatory DNA tests would change the outcome of his trial, much less prove his innocence.  Accordingly, he is not entitled to a DNA test under Chapter 64. 

Conclusion

The judgment of the trial court is affirmed.  Because we decided the appeal on its merits rather than considering counsel=s Anders brief, we overrule counsel=s motion to withdraw.

Opinion delivered April 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                             (DO NOT PUBLISH)