NOS. 12-13-00225-CR
12-14-00039-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANNY RAY LUSK, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
ORDER OF ABATEMENT
Danny Ray Lusk appeals his convictions in cause numbers 12-13-00225-CR (trial court
cause number 19,241) and 12-14-00039-CR (trial court cause number C-18,897) for the offenses
of aggravated sexual assault of a child and indecency with a child. Appellant‟s counsel filed a
brief contending that there are no arguable grounds for appeal and has filed a motion to
withdraw. Having found arguable grounds for appeal, we grant counsel‟s motion, abate the
appeals, and remand the causes for appointment of new counsel to brief the issues.1
BACKGROUND
A Henderson County grand jury returned two multiple count indictments against
Appellant for the offenses of aggravated sexual assault and indecency with a child. The
indictment in cause number 12-13-00225-CR alleged two counts of aggravated sexual assault of
a child and one count of indecency with a child. The indictment in cause number 12-14-00039-
CR alleged two counts of aggravated sexual assault of a child. Appellant pleaded “not guilty” to
both indictments. The cases were consolidated, and a jury found Appellant guilty on all counts.
1
See Garner v. State, 300 S.W.3d 763, 766 n.15 (Tex. Crim. App. 2009).
In cause number 12-13-00225-CR, the jury assessed punishment for counts one and two
at imprisonment for life, twenty years of imprisonment for count three, and a $5,000 fine on each
count. In cause number 12-14-00039-CR, the jury assessed punishment at imprisonment for life
and a $5,000 fine for both counts.
ARGUABLE GROUNDS FOR APPEAL
If an attorney appointed to represent a defendant on appeal finds the case to be “wholly
frivolous” after a conscientious examination of the record, he should so advise the appellate
court and request permission to withdraw. In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim.
App. 2008). The motion to withdraw is accompanied by what has become known as an
“Anders” brief as an assurance that the attorney has made a thorough and conscientious
examination of the record, has provided the appellate court with the appropriate facts of the case
and its procedural history, and has pointed out any potentially plausible points of error. See
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967); In re
Schulman, 252 S.W.3d at 406. The Anders brief also serves as a roadmap for appellate courts in
their review of the record in determining whether the attorney has made a legally correct
determination that the appeal is frivolous. See id. at 407.
When faced with an Anders brief, the appellate court has a duty to conduct a full
examination of all the proceedings to determine whether the case is wholly frivolous. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988); Anders, 386
U.S. at 744, 87 S. Ct. at 1400; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App.
2005). If the court‟s independent inquiry reveals an arguable ground for appeal, it must abate the
proceeding and remand the case to the trial court so that new counsel can be appointed to brief
the issues. See Garner v. State, 300 S.W.3d 763, 766 n.15 (Tex. Crim. App. 2009) (quoting
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). An arguable ground for appeal
is a ground that is not frivolous and is an argument that could “conceivably persuade the court.”
Martinez v. State, 313 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 2009, order) (citing In
re Schulman, 252 S.W.3d at 407 n.12).
An appellate court identifying issues that appellate counsel should have addressed, need
not be able to say with certainty that those issues have merit; it need only say that the issues
warrant further development by counsel on appeal. Wilson v. State, 366 S.W.3d 335, 337 (Tex.
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App.—Houston [1st Dist.] 2012, order) (citations omitted). In conducting our review, we
consider any pro se response the defendant files in response to his appointed counsel‟s brief. See
Garner, 300 S.W.3d at 767 (“[C]ourts of appeals must decide whether the Anders appeal and
subsequent pro se brief raise any meritorious „arguable grounds‟ for review.”).
Discussion
In his brief, counsel presents two “possibly important” issues concerning the application
of article 38.072 of the Texas Code of Criminal Procedure and Appellant‟s right to testify during
the guilt-innocence phase of trial. Appellant filed a response to counsel‟s brief and contends that
evidentiary sufficiency, ineffective assistance of counsel, and violations of his substantive and
constitutional rights are arguable grounds for appeal.
Article 38.07 and Ineffective Assistance of Counsel
Appellant‟s trial was hotly contested and lasted several days. “J.” and “S.” are the alleged
victims in these cases.2 “Dorothy” is J‟s stepmother and S‟s biological mother. In both cause
numbers, the State designated Dorothy as an outcry witness to testify at trial. The trial court
conducted a hearing to determine the reliability of statements J. allegedly made to Dorothy in
January 2010 and April 2011. Although the State did not include the January 2010 statement in
its notice of intent to introduce the hearsay statement, trial counsel failed to object, and the trial
court found both hearsay statements sufficiently reliable.
Although appellate counsel states the record suggests J. likely made an outcry prior to
2010, he nevertheless concludes it was not error to admit the outcry testimony because evidence
of the earlier outcries was not known until after Dorothy testified about J.‟s outcries. The record
shows that this evidence came from Dorothy, J., and J.‟s biological mother‟s trial testimony.
Despite these later developments, trial counsel failed to object and did not request a mistrial on
the ground that J.‟s hearsay statements failed to satisfy the requirements of article 38.07.
The State‟s notice relating to S.‟s outcry statements also appears deficient. The State‟s
notice refers to hearsay statements S. made to her biological father, “Allen,” when she called him
on the telephone (purportedly in April 2011). But Allen‟s testimony showed that Dorothy had
told him S. “had brought to her attention that [Appellant] was putting his penis in inappropriate
2
To protect the victims‟ identity, we use pseudonyms to identify them and other witnesses at trial. J. is
Appellant‟s biological daughter, and S. is Appellant‟s stepdaughter.
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areas.” Again, trial counsel failed to object and did not request a mistrial on the ground that S.‟s
hearsay statements failed to satisfy the requirements of article 38.07.
Despite the State‟s insufficient notice, trial counsel‟s failure to object to the admission of
the evidence on the grounds of insufficient notice, and trial counsel‟s failure to request a mistrial
based on the ground that the requirements of article 38.07 were not satisfied, appellate counsel
does not raise the issue of whether Appellant received ineffective assistance of counsel or a fair
trial.
Inadmissible Evidence and Attorney’s Fees
The record reflects that one of the State‟s witnesses testified that Appellant had written a
note in the shower that stated, “I‟m sorry, please forgive me.” Trial counsel objected to the
admission of this statement as written hearsay. The trial court sustained trial counsel‟s objection.
The witness then confirmed that “after doing some research,” she learned that Appellant had
written the note. Trial counsel again objected, arguing that the alleged statement was received
through hearsay. The trial court overruled trial counsel‟s objection, but appellate counsel does
not raise the issue of whether the trial court‟s admission of the statement was error.
Lastly, the judgments reflect the assessment of attorney‟s fees in the amount of
$5,325.00. The clerk‟s record in cause number 12-14-00039-CR indicates that counsel was
appointed to represent Appellant at trial and on appeal. The record is silent regarding
Appellant‟s ability to pay court appointed attorney‟s fees, but appellate counsel fails to address
this issue.
Conclusion
After considering counsel‟s brief and Appellant‟s contentions, as well as conducting a
full examination of the record, we conclude that arguable grounds for appeal exist. Based on our
review, we have found at least four issues warranting argument on appeal:
(1) Did trial counsel‟s failure to object and request a motion for mistrial upon the admission of
victim hearsay statements deprive Appellant of his right to effective assistance of counsel?
(2) Did the trial court commit reversible error by admitting hearsay evidence that Appellant wrote
a note saying “I‟m sorry, please forgive me”?
(3) Are the judgments ordering reimbursement of attorney‟s fees supported by sufficient evidence
of Appellant‟s ability to pay?
(4) Was Appellant deprived of his right to testify or his right to a fair trial?
4
Having concluded that arguable grounds for appeal exist, we grant appellate counsel‟s motion to
withdraw. See Stafford, 813 S.W.2d at 511.
IT IS ORDERED that these appeals be abated, that the cases are remanded to the trial
court, and that the trial court shall appoint new counsel to represent Appellant on appeal. The
trial court shall furnish the name, address, telephone number, and state bar number of new
counsel to the clerk of this Court immediately after the trial court‟s appointment of new counsel.
Finally, the trial court shall cause its order appointing counsel to be included in a supplemental
clerk‟s record, which shall be filed with the clerk of this Court within ten days after the date of
this order.
IT IS FURTHER ORDERED that the appeals are administratively removed from this
Court‟s docket until further order of this Court.
IT IS FINALLY ORDERED that the newly appointed counsel‟s brief shall address the
issues this court has identified and any other issues counsel deems meritorious, and that
counsel‟s brief shall be due forty-five days from the date of counsel‟s appointment. All other
appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.
JAMES T. WORTHEN
Chief Justice
Order entered January 21, 2015.
Panel consisted of Worthen, C.J. and Hoyle, J.
(DO NOT PUBLISH)
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