NO. 07-08-0240-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 19, 2009
______________________________
JOE N. DANIELS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B 17521-0801; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Joe N. Daniels, was convicted by a jury of indecency with a child, enhanced. Punishment was assessed at fifty years confinement. In presenting this appeal, counsel has filed an Anders (footnote: 1) brief in support of a motion to withdraw. We grant counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California , 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman , 252 S.W.3d 403, 406 (Tex.Crim.App. 2008) . Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State , 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review . In re Schulman , 252 S.W.3d at 408. (footnote: 2) By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did file a response. However, the State did not favor us with a brief.
By the Anders brief, counsel contends he has found no issues to present on appeal. However, he raises a potential charge error and then concedes that egregious harm, which would be required to support reversal, is not demonstrated in the record. By his pro se response, Appellant maintains (1) he was denied effective assistance of trial counsel and (2) the child victim made multiple inconsistent statements in her testimony.
We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio , 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman , 252 S.W.3d at 409; Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State , 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record, counsel’s brief, and Appellant’s pro se response, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State , 178 S.W.3d 824 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
FOOTNOTES
1:
Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2:
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal , counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman , at 408 n.22 & at 411 n.35.