NO. 07-07-0260-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 11, 2009
______________________________
DANIEL A. ELDER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-410775; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Daniel A. Elder appeals from his conviction, on his plea of guilty, of the
offense of aggravated sexual assault of a child and his sentence of forty years of
confinement in the Institutional Division of the Texas Department of Criminal Justice.
Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies that there are no non-frivolous issues
on which to base an appeal. Agreeing with appointed counsel’s conclusion the record fails
to show any arguably meritorious issue which could support the appeal, we affirm the trial
court’s judgment.
In November 2005, appellant was charged by indictment with seven counts of the
offense of aggravated sexual assault of a child.1 In April 2007, appellant entered an open
plea of guilty to the court.2 The trial court admonished appellant, determined his plea was
entered knowingly, freely, and voluntarily, and explained the range of punishment
applicable to this case.
After the court’s acceptance of appellant’s plea of guilt, the State presented six
witnesses to establish that on more than seven occasions, appellant sexually abused his
four-year-old daughter by forcibly making her perform oral sex on him. The defense
presented three witnesses to show that appellant committed the sexual abuse of his
daughter because he himself was a child victim of sexual abuse.
Following presentation of the evidence, the court ordered a pre-sentence
investigation report and in May 2007, found appellant guilty of all seven counts of
aggravated sexual assault and assessed sentence. The trial court denied the State’s
1
See Tex. Penal Code Ann. § 22.021(b) (Vernon 2007). This is a first degree felony
punishable by imprisonment for life or any term of not more than 99 years or less than 5
years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003).
2
Appellant signed and submitted a “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession,” stating he understood the allegations and confessed
to their truth, that he was the individual named as the defendant, that he waived his right
to a jury trial, that he was satisfied with his attorney’s representation, and that he waived
further time in which to prepare for trial. He further acknowledged that he had been
advised of the range of punishment in this matter. On the record, the trial court ensured
appellant signed this document freely, knowingly, and voluntarily.
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motion for consecutive sentences and instead ordered appellant’s sentences to run
concurrently. The trial court certified appellant’s right of appeal, and this appeal followed.
Appellant's appointed appellate counsel has filed a motion to withdraw and a brief
in support pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), in which he certifies that he has diligently reviewed the record and, in his
professional opinion, under the controlling authorities and facts of this case, there is no
reversible error or legitimate grounds upon which a non-frivolous appeal can arguably be
predicated. The brief discusses in detail the relevant facts, the procedural history of the
case and the applicable law. Counsel notes potential issues but, citing the record and
relevant law, presents his reasons for concluding that none are arguably meritorious.
Counsel has certified that a copy of the Anders brief and counsel’s motion to withdraw have
been served on appellant, and that counsel has advised appellant of his right to review the
record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco
1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a
response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not
filed a response.
In conformity with the standards set out by the United States Supreme Court, we do
not rule on counsel’s motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). Having done
so, we are convinced appellate counsel conducted a complete review of the record. We
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agree it presents no arguably meritorious grounds for review. Accordingly, we grant
counsel's motion to withdraw3 and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
3
Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant’s right to file a
pro se petition for discretionary review. See Tex. R. App. P. 48.4.
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