Opinion issued January 24, 2008
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-00764-CR
01-06-00765-CR
01-06-00766-CR
ELIBERTO VEGA NORIEGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 936811, 930148, and 930147
MEMORANDUM OPINION
Appellant, Eliberto Vega Noriega, appeals from three judgments convicting him for aggravated sexual assault of a child under 14 years of age for which he was sentenced to life in prison, with the sentences to run concurrently. See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon 2003). Appellant pleaded not guilty. The jury found appellant guilty and assessed his punishment.
Appellant’s counsel on appeal has submitted a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response brief. In narrative form, appellant contends that the evidence is insufficient to establish his guilt for the offenses, that he received ineffective assistance of counsel, and that the prosecutor engaged in unethical misconduct during the trial. We affirm.
Background
Appellant is the father of complainant, S.N. Appellant and complainant’s mother, Crystal Maldonado, were never married, but lived together until complainant was six. After appellant and Maldonado separated, complainant lived with appellant. Appellant and complainant moved in with appellant’s brother and then into a one-bedroom apartment.
Between the ages of six and nine, complainant was sexually assaulted by appellant on numerous occasions. In late 2001, appellant placed his finger and his sexual organ in the female sexual organ of complainant. One night at appellant’s brother’s house, appellant took down complainant’s pants and touched her sexual organ with his fingers. Appellant touched complainant, both outside and inside her sexual organ, on many occasions, telling her that “this would help [her] when [she] got older.” On a different occasion, appellant pulled down his pants and put his sexual organ in complainant’s sexual organ. The assaults happened several times at complainant’s uncle’s house and at appellant’s apartment. In the summer of 2002, complainant was sleeping in one bed with appellant’s then-girlfriend, Olga Rodriguez. Appellant exhibited his penis “out of a little hole” in his pajamas and put his penis inside complainant’s mouth. Rodriguez awoke to witness the act. Rodriguez later told Maldonado, who contacted police and took complainant for a sexual assault exam. Complainant presented a “normal examination” that “did not reveal any injuries.” Dr. Rohndit Shenoi stated that molestation that occurs over a period of time is more likely to show physical trauma, although he also stated that genitalia will probably present normal when there is a delayed outcry.
In trial cause number 930147, which is appellate cause number 01-06-00766-CR, appellant was charged with aggravated sexual assault by placing his finger in the female sexual organ of S.N. on or about December 1, 2001. In trial cause number 930148, which is appellate cause number 01-06-00765-CR, appellant was charged with aggravated sexual assault of S.N. by penetrating her mouth with his sexual organ on or about July 20, 2002. In trial cause number 936811, which is appellate cause number 01-06-00764-CR, appellant was charged with aggravated sexual assault of S.N. by placing his male sexual organ into her female sexual organ on or about December 2, 2001.
At trial, the defense did not present any evidence or testimony.
Anders Procedure
The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and, therefore, that any appeal would lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 137–38 (Tex. Crim. App. 1969). Appellant’s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. The State waived its opportunity to file an appellee’s brief to reply to the arguments presented in appellant’s pro se response.
When this Court receives an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (citing same passage from Anders). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Id. at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if appellant wishes, allow appellant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
If, on the other hand, we determine from our independent review of the entire record that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–28, we have reviewed the record, appellant’s appointed counsel’s Anders brief, and appellant’s pro se response to that brief and conclude that no reversible error exists.
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.
Elsa Alcala
Justice
Panel consists of Justice Taft, Keyes, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).