NO. 07-08-0480-CR
NO. 07-08-0481-CR
NO. 07-08-0482-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 20, 2009
______________________________
ANGEL HERNANDEZ CASTANEDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NOS. B 3191-0809; B 3192-0809; & B 3193-0809; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following pleas of not guilty, Appellant, Angel Hernandez Castaneda, was convicted by a jury of aggravated sexual assault in cause number B 3191-0809, aggravated kidnapping in cause number B 3192-0809, and burglary of a habitation in cause number B 3193-0809. Respectively, Appellant was sentenced to ninety-nine years confinement and a $10,000 fine, ten years confinement and a $5,000 fine, and ninety-nine years confinement and a $10,000 fine. In presenting this appeal, counsel has filed an Anders 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 has candidly discussed 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 also 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. 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 filed a response. The State did not favor us with a brief.
By the Anders brief, counsel raises a potential issue of legal and factual sufficiency of the evidence. He then concludes after a review of all the evidence that under the appropriate standards of review, reversal is not required.
By the pro se response, Appellant mistakenly believes that counsel has already been permitted to withdraw from this appeal and requests that the Anders brief be “dismissed” so that he may present the merits of his appeal. He alleges his appellate attorney is ineffective for filing the Anders brief and also alleges the circumstantial evidence is weak.
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 judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
t appellant failed to preserve the issue of the polygraph evidence for review. See Tex. R. App. P. 33.1(a)(1). Appellant counters that she made a timely objection and that, since there was no jury, there was no necessity for a motion for mistrial and, therefore, all steps necessary to preserve the issue for appeal had been accomplished. Assuming trial counsel’s statement of “Okay” was not acquiescence to the trial court’s ruling, appellant’s contention is erroneous for another reason. This was not the only time the issue of polygraph testing was raised. The record reflects that the State, apparently based upon the trial court’s ruling, returned to the subject a number of times during the direct examination of Renshaw. Trial counsel never again objected nor indicated any dissatisfaction with the trial court’s previous ruling. Trial counsel could preserve the alleged error in the admission of the polygraph testimony by either objecting each time a question concerning the results of the polygraph test was asked or by obtaining a continuous or running objection to that line of questioning. See Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984) (holding that defense counsel must object each time allegedly inadmissible evidence is offered); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991) (approving the use of a continuous or running objection to an entire line of questions). In the case before us, appellant did not object each time nor obtain a running objection, therefore, the issue has not been preserved for appeal. Tex. R. App. P. 33.1(a)(1). Accordingly, appellant’s sole issue is overruled.
Conclusion
Having overruled appellant’s only issue, the judgments of the trial court are affirmed.
Mackey K. Hancock
Justice
Do not publish.