Ferguson v. State
435 S.W.3d 291
| Tex. App. | 2014Background
- Darrell Ferguson was indicted for continuous sexual abuse of a child (first-degree felony) and pleaded not guilty; a jury convicted him and the trial court sentenced him to life imprisonment.
- Appellate counsel filed an Anders brief and motion to withdraw, asserting no arguable grounds for appeal and notifying Ferguson of his rights; Ferguson filed a pro se letter response.
- The trial court’s written judgment described the victim’s age during the offense as five to twelve years, but the indictment and trial evidence supported abuse occurring from on or about Sept. 1, 2007 through June 30, 2009 (victim age roughly twelve to thirteen).
- Section 21.02 of the Texas Penal Code (continuous sexual abuse statute) became effective Sept. 1, 2007; acts before that date could not be used to prove the statutory offense.
- The court performed an independent review under Anders/Penson, found no reversible error in the conviction, but concluded the judgment should be reformed to reflect the victim’s age as twelve to thirteen to match the indictment and admissible evidence.
- The court granted counsel’s motion to withdraw, affirmed the conviction as modified, and instructed counsel to notify Ferguson of his post-opinion rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel properly filed an Anders brief and may withdraw | Counsel: record contains no arguable appellate issues after review; Anders brief complies with In re Schulman/High | Ferguson (pro se): filed letter but raised no meritorious reversible error | Court: Independent review under Penson/Anders found no reversible error; counsel may withdraw and court grants motion |
| Whether the trial court judgment misstates the victim’s age and must be reformed | State/Counsel: judgment should be modified to reflect the indictment and evidence (abuse Sept. 1, 2007–June 30, 2009; victim 12–13) | Ferguson: did not successfully challenge reform request to avoid modification | Court: Reform judgment to show victim’s age as twelve to thirteen because statute effective Sept. 1, 2007 and acts before that date cannot support conviction |
| Whether appellate court must abate Anders appeals to appoint new counsel when a non-reversible error permits modifying the judgment | Some precedent (Evans): any entitlement to relief requires abatement and new counsel | Other courts: appellate courts may reform judgment and affirm as modified without abatement | Court: Declines to follow Evans; will reform judgment and affirm as modified rather than abate as a useless task |
| Whether appellate court has authority to reform judgment in an Anders case | Counsel: appellate court may reform to make the record speak the truth when facts/support exist | Implicitly: defendant may argue need for further advocacy | Court: Appellate courts have authority to reform judgments to correct non-reversible errors in Anders appeals and affirm as modified |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure when counsel finds appeal frivolous)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988) (appellate court must independently examine the record upon receiving an Anders brief)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (Texas guidance on Anders-like briefs and pro se responses)
- McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429 (U.S. 1988) (counsel’s obligations when concluding appeal is frivolous)
- Martin v. State, 335 S.W.3d 867 (Tex. App.—Austin 2011) (statute effective date governs which acts may be used to prove offense)
- Klein v. State, 273 S.W.3d 297 (Tex. Crim. App. 2008) (indictment alleging an "on or about" date relieves State of proving exact date)
- Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000) (same principle for date allegations and proof)
- Homan v. Hughes, 708 S.W.2d 449 (Tex. Crim. App. 1986) (courts need not require performance of useless tasks)