### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00037- CR
In re Wesley Joe Jackson

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT

NO. 90,4 79, H ONO RAB LE B OB P ERKI NS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
In 1988, a jury convicted appellant Wesley J oe J ackson of the offe nse of ag g ravated sexual assault and assessed punishment at 60 y ear s’ imprison m en t
. In 2004, J ackson filed a motion for post-conviction DNA testing. The district court g rante d the motion an d o rd er ed the Texas Depa

rtment of Public Safety to conduct testing. Fur ther testing was order ed on Dec ember 12, 2007. DPS conducte d testing on the phy sical evidenc e g ather ed afte r the assault, including vag inal swabs from the sexual a ssault kit and a towel used by the victim, and compar ed the results to J ackson’ s DNA prof

ile. In the re port of its findings, D PS concluded the following :
The DNA p ro fi le from the sperm fra ctions of the vag inal swab and a stain from the towel is consistent with the DNA profile of Wesley J ac k s on. Wesley J ackson cannot be excluded as the cont ributor of the stains. The probability of selec ting an unrelated person at random who could be the source of th i s DN A p ro fi le is approximately 1 i n 410.7 sext illion for Cauca sians, 1 in 25.60 quintill ion for Bla cks,[ ] and 1 in 494.3 sext illion for Hispanics. To a rea sonable deg ree of

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J ackson is an A frica

n-Amer ican male

. 1scientific cer tainty , Wesley J ackson is the source of the sperm fra ctions of the vag inal swab a nd the stain from the towe l (excluding identica l twins). The partial DNA profiles from the stain from the towel packa g ing and the epithelial cell fra ction of the vag inal swab are consistent with the DNA profile of [t he victim]

. On Dec ember 29, 2009, the district court enter ed finding s of fac t consistent with the above finding s by DPS. The district c ourt conclude d that “[t] he above -desc ribed DN A testing did not yield any exculpato ry re sults” and, “[h] ad the results of the above- descr ibed DNA testing been available during the trial in the instant case , it is rea sonably probable that the defe ndant would have been convicted.” See Tex. Code Crim. Proc. Ann. art. 64.04 (W est 2009). This appea l followed. J ackson’ s court-a ppoi n t ed attorney has filed a motion to withdraw supported by

a brief concluding that the appea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif

ornia , 386 U.S. 738 (1967), by prese nting a profe ssional evaluation of the rec ord demonstrating why there are no arguable g rounds to be advanc ed. 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); Jack son v. St ate , 485 S.W .2d 553 (Tex. Crim. App. 1972); Gainous v. State , 436 S.W .2d 137 (Tex. Crim. App. 1969). J ackson r ece ived a c opy of counse l’s brief a

nd has subm itted a written response objectingto counsel’s motion to withdraw and asser ting reasons why he does not be lieve the a ppeal is fr ivolous. We have revie wed the rec ord, counsel ’s brief, and J ackson’ s written response and find no reve rsible err or. See Garner v. State , 300 S.W .3d 7 63, 766 (Tex. Crim. App. 2009); Bledsoe v. State , 178 S.W .3d 824, 826-27 (Tex. Crim. App. 2005). We ag ree with counsel that the 2appea l is frivolous and without merit. Counsel’s motion to withdraw is g rante d. The district court’s

order is affirme d.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: January

20, 2011 Do Not Publish

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