Jerry Ronald Holland v. State

NO. 07-08-0243-CR; 07-08-0244-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 26, 2009

                                       ______________________________

JERRY RONALD HOLLAND, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NOS. 19392-A and 19393-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Through two indictments, appellant Jerry Ronald Holland was charged with eight counts of indecency with a child. A jury convicted him on each count and assessed punishment at ten years in prison and a $2,000 fine on each count. The court imposed concurrent sentencing. Appellant timely filed a notice of appeal. His court-appointed appellate counsel has filed a motion to withdraw from representation supported by an Anders brief. We will grant counsel’s motion to withdraw and affirm the judgments of the trial court.

          Evidence presented at trial showed appellant, age seventy, improperly touched two females, then ages six and nine. The victims were cousins of appellant’s granddaughter. The evidence included appellant’s written statement to police and a recorded interview with an officer, and included trial testimony of the victims and a sexual assault nurse examiner. Appellant also testified, seeking to clarify some of his statements to police.

          In the Anders brief supporting his motion to withdraw, appellant’s court-appointed counsel analyzed the evidence adduced at trial. He certified that after reviewing the entire record and conducting research he could find no reversible error and in his opinion the appeal was frivolous. Counsel also filed with this court a copy of a letter to appellant transmitting the motion to withdraw and the Anders brief and notifying appellant of the right to file a pro se response. The letter also offered a copy of the record for appellant. See Johnson v. State, 885 S.W.2d 641, 646-47 (Tex.App.–Waco 1994, pet. refused), modified in part by Wilson v. State, 955 S.W.2d 693 (Tex.App.–Waco 1997, no pet.). This court also has advised appellant by letter of his right to file a response to his attorney’s Anders brief. Appellant did not file a pro se response.

          When court-appointed counsel files a motion to withdraw and a brief in which he concludes no arguable grounds for appeal exist, we review the record and make an independent determination. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (the appellate court, and not counsel, after full examination of the record, determines whether the case is “wholly frivolous”); accord Bledsoe v. State, 178 S.W.3d 824, 826 (Tex.Crim.App. 2005); Mitchell v. State, 193 S.W.3d 153, 155 (Tex.App.–Houston [1st Dist.] 2006, no pet.). If, from our review of the record, we find arguable grounds for appeal, we will abate the appeal, remand the case to the trial court, and allow withdrawal of court-appointed counsel. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. If 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 explaining that we reviewed the record and found no arguable grounds for appeal. Bledsoe, 178 S.W.3d at 826-27; Mitchell, 193 S.W.3d at 156. An appellant may challenge a court of appeal’s finding of no arguable grounds for appeal by a petition for discretionary review filed in the Court of Criminal Appeals. Bledsoe, 178 S.W.3d at 827 & n.6; Mitchell, 193 S.W.3d at 156.

          After reviewing counsel’s Anders brief, we conducted our own review of the entire record. We find no arguable grounds for appeal. Accordingly, the motion of appellant’s counsel to withdraw is granted and the judgments are affirmed.

 

                                                                                      James T. Campbell 

                                                                                                 Justice

Do not publish.

eaks of according the respondent or potential ward the opportunity to receive prior notice of the hearing, legal representation, opportunity to present evidence and confront witnesses, and the opportunity to close the proceedings. Tex. Prob. Code Ann. §875(f)(1) (Vernon Supp. 2001). In creating this distinct interlocutory procedure the legislature said nothing of affording third-parties over whom a temporary guardian was being appointed opportunity to appear and dispute the application. And, while we do not hold that such third-parties cannot intervene, Kuhler's addressing that issue was imperative since one of the opposing parties argued in its brief that he had no such right.