Monte Ross v. State
03-15-00222-CR
| Tex. App. | Oct 26, 2015Background
- Appellant Monte Ken Ross was indicted for possession of child pornography (initially 2 counts, later reindicted on 13 counts) and pleaded guilty before a jury; jury found him guilty on all counts.
- Jury assessed ten years’ imprisonment on each count; the trial court ordered five of those ten-year sentences to run consecutively.
- Evidence at trial included seized digital media (SD cards, drives, computers, cell phone) containing numerous images and videos of child pornography, testimony from forensic analysts, and victims describing historical sexual conduct and photographs.
- Appellant gave a recorded statement after being Miranda-warned; forensic analysts identified 89 images of child pornography.
- At punishment, extraneous conduct evidence and live testimony from alleged victims of earlier incidents were admitted; a 1990 deferred-adjudication judgment was excluded as not a final conviction and remote.
- Appellate counsel filed an Anders brief seeking leave to withdraw, concluding the appeal is frivolous after reviewing the record and identifying potential but non-meritorious issues for appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is frivolous, permitting counsel to withdraw | Counsel: appeal is frivolous after review; move to withdraw under Anders | Ross may file pro se response; entitled to appellate record access | Court to independently review record; Anders procedure followed (motion + brief + notice to appellant) |
| Sufficiency of evidence to support convictions | State: judicial confession (guilty plea) and extensive physical evidence support convictions | Ross: (not advanced effectively) no viable challenge to sufficiency preserved | Counsel: confession alone is sufficient; no reversible sufficiency issue evident |
| Notice of extraneous images/admission under Rule 404(b) | Ross: State allegedly failed to give specific notice of ~80 images | State: images were included in case report and shown to defense; defense conceded notice | No preserved error for appeal because defense conceded notice at trial |
| Admissibility of extraneous-offense evidence at punishment | State: extraneous acts relevant to sentencing under Art. 37.07 and admissible regardless of conviction status | Ross: objected to admission of certain extraneous evidence and victim testimony | Trial court admitted victim and officer testimony (excluded old deferred-adjudication judgment); reviewing court would apply abuse-of-discretion and counsel found ruling within reasonable zone |
| Sentence range and cumulation | State: sentences within statutory range; cumulation authorized by statute | Ross: contends excessiveness / improper cumulation | Sentences (ten years each) are within statutory range; court properly ordered cumulation for five sentences under Penal Code §3.03 |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires counsel to file brief and motion to withdraw when appeal deemed frivolous)
- McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429 (1988) (counsel must inform court when appointed counsel concludes appeal is frivolous)
- Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1980) (judicial confession can support conviction)
- Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) (abuse-of-discretion standard for admissibility rulings at punishment)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (reviewing court defers to trial court within zone of reasonable disagreement)
- Gaines v. State, 479 S.W.2d 678 (Tex. Crim. App. 1972) (sentence within statutory range is not excessive)
- Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973) (same principle regarding punishment within statutory limits)
- Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) (same principle regarding punishment within statutory limits)
- Wilson v. State, 40 S.W.3d 192 (Tex. App. – Texarkana 2001) (procedural requirements for Anders briefing in Texas)
- Hawkins v. State, 112 S.W.3d 340 (Tex. App.–Corpus Christi 2003) (Anders brief in Texas need not advance arguable points but must provide record references and authorities)