IN THE
TENTH COURT OF APPEALS
No. 10-04-00242-CR
David Wayne Evans,
Appellant
v.
The State of Texas,
Appellee
From the 9th District Court
Montgomery County, Texas
Trial Court # 02-08-05575 CR
Memorandum opinion
Evans was indicted for three counts of aggravated sexual assault of a child and one count of indecency with a child. He pled guilty to one count of aggravated assault and was placed on community supervision for a period of ten years. The State filed a motion to adjudicate guilt and revoke community supervision. A hearing was held on the motion, and Evans pled true to the alleged violations. The trial court found the violations were true, adjudicated Evans guilty, and sentenced him to thirty-five years’ imprisonment. Evans’s counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1976). We will affirm.
The brief thoroughly reviews the indictment and statute under which Evans was charged, Evans’s plea, the judgment, the punishment assessed, and the effectiveness of trial counsel. In the brief, counsel states that he has read and evaluated the entire record and “has concluded that there is no error that would justify reversal or a new trial in this case.” See id. at 744. Evans was notified that he had the right to respond to counsel’s motion and brief. See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.—Waco 2001, no pet.).
We have conducted an independent review of the record to discover whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We determine there are none. The indictment invoked the district court’s jurisdiction, and the court assessed punishment within the range of punishment for the offense.
Accordingly, we affirm the judgment. Counsel must advise Evans of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 27, 2005
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ont-size: 12pt"> Severity of Punishment
The range of punishment for a felony indecency by exposure offense is two to ten years in prison and a fine not to exceed $10,000. See Tex. Pen. Code Ann. §§ 12.34(a) &(b) and 21.11 (Vernon 1994 & Supp. 2001). The jury sentenced Slaughter to the maximum punishment for the offense. This alone is not dispositive of prejudicial effect. See Waldo, 746 S.W.2d at 757. During punishment, the State introduced Slaughter’s military conviction for several counts of sodomy and indecent acts. Slaughter had been released from prison on that conviction only one year prior to the offense against Davis. Thus, the jury could have concluded from this evidence that Slaughter deserved the maximum punishment.
Summary of Considerations
In weighing the above factors, the State’s question regarding whether Lakeisha’s baby was fathered by Slaughter did not create any obvious prejudice toward Slaughter. The prejudicial effect was removed by an effective instruction to disregard. Thus, the trial court did not err in denying Slaughter’s motion for mistrial. Slaughter’s sole issue is overruled.
Conclusion
Having overruled Slaughter’s only issue on appeal, we affirm the judgment of the trial court.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed October 10, 2001
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