Steven Anthony Roe v. State, 03-15-00024-CR

Steven Anthony Roe v. State

03-15-00024-CR

| Tex. App. | Oct 5, 2015

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Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/5/2015 1:23:00 PM JEFFREY D. KYLE Clerk No. 03-15-00024-CR THIRD COURT OF APPEALS 10/5/2015 1:23:00 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00024-CR *1 ACCEPTED ^[7228259] CLERK In the

COURT OF APPEALS

For the THIRD SUPREME JUDICIAL DISTRICT at Austin

______________________________________ On Appeal from the 368th Judicial District Court of Williamson County, Texas

Cause Number 13-0686-K277 ______________________________________ STEVEN ANTHONY ROE, Appellant v.

THE STATE OF TEXAS, Appellee _____________________________________ MOTION TO WITHDRAW AS COUNSEL WITH ANDERS BRIEF IN SUPPORT _____________________________________ Counsel for Appellant KRISTEN JERNIGAN

Steven Anthony Roe ATTORNEY AT LAW

STATE BAR NUMBER 90001898 207 S. AUSTIN AVE.

GEORGETOWN, TEXAS 78626 (512) 904-0123 (512) 931-3650 (FAX) Kristen@txcrimapp.com *2

IDENTIFICATION OF PARTIES Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the names of all interested parties is provided below so the members of this Honorable

Court may at once determine whether they are disqualified to serve or should

recuse themselves from participating in the decision of this case.

Appellant:

Steven Anthony Roe

Counsel for Appellant :

Robert McCabe (at trial) Gregory K. Simmons (at trial) 714 N. 4 th Street

207 S. Austin Ave.

Georgetown, Texas 78626 Killeen, Texas 76541

Kristen Jernigan (on appeal)

207 S. Austin Ave.

Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Elizabeth Whited (at trial)

Danny Smith (at trial)

John Prezas (on appeal)

Williamson County

Assistant District Attorneys

405 Martin Luther King

Georgetown, Texas 78626

Trial Court Judge:

The Honorable Rick Kennon

368th Judicial District Court

TABLE OF CONTENTS

IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

PROFESSIONAL EVALUATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

POTENTIAL ERRORS CONSIDERED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

NOTICE TO APPELLANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

iii *4 INDEX OF AUTHORITIES FEDERAL CASES

Anders v. California , 386 U.S. 738 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

McCoy v. Court of Appeals of Wisconsin, District I , 486 U.S. 429 (1988). . . .15, 16

Jackson v. Virginia , 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

TEXAS CASES

Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .18, 19

Gaines v. State , 479 S.W.2d 678 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . .21

Hawkins v. State , 112 S.W.3d 340 (Tex. App. - Corpus Christi 2003) . . . . . . . . . 16

Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . .21

Samuel v. State , 477 S.W.2d 611 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . .21

Wilson v. State , 40 S.W.3d 192 (Tex. App. – Texarkana 2001). . . . . . . . . . . . . . . 15

STATUTES AND RULES

T EX . C ODE C RIM . P RO . 57.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

T EX . P ENAL C ODE § 12.42( C ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

T EX . P ENAL C ODE § 22.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 18

T EX . P ENAL C ODE § 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 19

T EX . R. A PP . P. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

T EX . R. A PP . P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

iv *5 STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 39.1, Oral argument is not applicable in the present case.

No. 03-15-00024-CR

In the

COURT OF APPEALS

for the THIRD SUPREME JUDICIAL DISTRICT at Austin

______________________________________ On Appeal from the 368th Judicial District Court of Williamson County, Texas

Cause Number 13-0686-K277 ______________________________________ STEVEN ANTHONY ROE, Appellant v.

THE STATE OF TEXAS, Appellee _____________________________________ ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW AS COUNSEL _____________________________________ STATEMENT OF THE CASE On June 20, 2013, Appellant was indicted for one count of the felony offense of aggravated assault with a deadly weapon and one count of the felony

offense of aggravated sexual assault. ^[1] (CR: 25). On December 11, 2014, a jury

found Appellant guilty of the offenses of aggravated assault with a deadly weapon

and aggravated sexual assault. (CR:). The jury assessed Appellant’s

*7 punishment at life in prison on both counts. (CR: 126-27). Appellant timely

filed notice of appeal on December 15, 2014. (CR: 135). This appeal results.

STATEMENT OF FACTS

At trial, Mark Hasty testified that in the early morning hours of April, 9, 2013, he woke to hear a “really loud, bloodcurdling scream.” (RR4: 26). Hasty

looked out his apartment window and saw Appellant standing over S.C., ^[2]

pummeling her with his fists. (RR4: 29-30, 32-33). Hasty told his roommate to

call 911 and went outside with a rifle. (RR4: 31). Hasty pointed the rifle at

Appellant and said, “hey, stop, get off of her.” (RR4: 31). Appellant then

picked S.C. up in a chokehold, used her as a shield, and said, “you’re going to have

to kill us both.” (RR4: 31). Appellant then dragged S.C. back into her

apartment. (RR4: 35). S.C. was gurgling and appeared lifeless. (RR4: 35-36).

Hasty did not think she was going to live. (RR4: 35).

John Pisciotta testified that on April 9, 2013, he woke up and heard screaming. (RR4: 54). He and his roommate, Hasty, ran outside and Pisciotta

saw Appellant assaulting S.C. (RR4: 54). S.C. was trying to scream for help,

but she could not. (RR4: 54). Hasty picked up his rifle and went outside while

Pisciotta called 911. (RR4: 55-56). Pisciotta then joined Hasty outside and saw

*8 Appellant had S.C. pinned down. (RR4: 61). S.C. was “defenseless” and

Appellant was hitting her in the face. (RR4: 61). Appellant then dragged S.C.

back into her apartment. (RR4: 63).

Charles Whites testified that he is a patrol officer with the Round Rock Police Department and was dispatched to a disturbance call at approximately 1:30

a.m. on April 9, 2013. (RR4: 101). When he arrived, he was informed that

Appellant had dragged S.C. into Apartment 603, so Whites and another officer

knocked on the door but there was no answer. (RR4: 104-05). Whites found an

open window and entered the apartment to render aid to S.C. who was thought to

have suffered serious bodily injury after being dragged into the apartment against

her will. (RR4: 105). When he entered the apartment, Whites observed a

woman lying on the floor who was “clearly seriously injured.” (RR4: 107). She

was bleeding from the mouth, had a laceration, was unconscious, had been badly

beaten, and had torn clothes. (RR4: 107). Whites also observed broken

furniture and other items that were out of place including a damaged pot and a

large kitchen knife that had blood on it. (RR4: 108, 115). Whites called EMS

immediately and turned S.C. on her side so she would not choke on the blood

coming from her face and mouth. (RR4: 121).

Michael Krogmann, a sergeant with the patrol division of the Round Rock Police Department, told the jury that on April 9, 2013, he responded to a scene

where a woman had been stabbed. (RR4: 169-70). When he arrived, Krogmann

observed S.C. lying on the floor covered in blood. (RR4: 171). Krogmann, a

former medic, evaluated S.C.’s medical condition and found she had puncture

wounds to her back, her nose was bloodied and swollen, and a laceration behind

her ear. (RR4: 173).

Brett Wimsatt, a paramedic with Williamson County Emergency Medical Services, testified that on April 9, 2013, he was dispatched to an assault case where

the victim was unconscious. (RR4: 195-96). When he arrived, Wimsatt

observed S.C. lying on the ground. (RR4: 198). S.C. had “a significant amount

of blood on her person, on her face, chest, arms, and even down to her legs.”

(RR4: 198). Wimsatt assessed her medical condition and transported her to the

hospital so that a trauma team could more thoroughly evaluate S.C. (RR4:

205-06).

S.C. testified that she met Appellant through an acquaintance, Appellant’s stepmother. (RR5: 15). At the time they met, S.C. was twenty-nine years old

and Appellant was nineteen years old. (RR5: 15). After talking for several

hours and “hitting it off” with Appellant and his stepmother, S.C. spent the night at

their home. (RR5: 18). The next morning, Appellant asked to go home with

S.C. and she agreed. (RR5: 18). The two “hung out” during the day and S.C.

bought Appellant some shirts, food, and a movie. (RR5: 20). That night S.C.

attended a show where Appellant was featured as a singer. (RR5: 21). The two

spent two more days together and their relationship became intimate. (RR5:

22-23). On the third night, S.C. agreed to take Appellant to his father’s house but

when she could not find her car keys, Appellant became very angry. (RR5:

23-24). Appellant began beating her in the face with his fists, punched her, bit

her, and raped her with a knife to her throat. (RR5: 25). Appellant told S.C. he

was going to kill her and S.C. believed him. (RR5: 25-26). S.C. thought she

would not make it out of her apartment alive so she ran outside to try to get

someone’s attention. (RR5: 26). S.C. screamed for her life and Appellant ran

after her, beating her and dragging her back into her apartment. (RR5: 26). The

next thing S.C. remembered was the paramedics arriving to help her. (RR5: 26).

The whole altercation lasted over four hours. (RR5: 26). S.C. was transported

to the hospital where she remained for five days. (RR5: 29). Part of that time,

S.C. was in ICU because of bleeding in her brain. (RR5: 30). S.C. had fractures

in her face, a broken nose, stitches on her neck, multiple lacerations, and lost the

hearing in her right ear. (RR5: 30).

On cross-examination, S.C. agreed that she was actually thirty years old when she met Appellant and that he could have been eighteen years old. (RR5:

62-63). S.C. also agreed that Appellant had been drinking vodka straight out of

the bottle on the day he attacked her and that he got the vodka from her

refrigerator. (RR5: 65). S.C. admitted that in her initial statement to police, her

sequence of events was incorrect and that she said Appellant did not use a weapon

when he sexually assaulted her. (RR5: 70).

Dr. Christopher Thompson testified that he was on duty in the emergency room of the Round Rock Medical Center on April 9, 2013, and treated S.C.

(RR5: 125). Upon initial examination, S.C. had serious bruising and swelling to

her face, blood coming from her ear, bruises all over her body and a broken nose.

(RR5: 127-31). S.C. also had bleeding in her brain so a neurosurgeon and a

trauma surgeon were called. (RR5: 132). S.C. was diagnosed with a subdural

hematoma which carried the risk for death, disability, vision loss, and memory

loss. (RR5: 134-35).

Evangeline Barefoot, a sexual assault nurse examiner, testified that she examined S.C. on April 9, 2013, and during that examination, S.C. reported that

Appellant sexually assaulted her and held a kitchen knife to her throat during the

assault. (RR5: 152-53). Barefoot noted that S.C. had abrasions and “tearing

type injuries” to her vagina which appeared to be the result of force. (RR5:

171-72). Barefoot took vaginal swabs as evidence which were ultimately

submitted to the Texas Department of Public Safety Crime Lab. (RR5: 170,

210-15).

Detective Todd Forister with the Round Rock Police Department told the jury that he visited with S.C. in the hospital and she named Appellant as the person

who assaulted her. (RR5: 216). A photo lineup was prepared and shown to S.C.

and she identified Appellant out of the photo lineup. (RR5: 218-19). A few

days later, Forister determined that Appellant had been captured and was confined

in the Travis County Jail, so Forister traveled to the jail to interview Appellant.

(RR5: 219-20, 222). Appellant waived his Miranda ^[3] rights and agreed to speak

to Forister who recorded the interview. (RR5: 220-21). The interview was

played for the jury in which Appellant “accepted full responsibility” for the assault

on S.C. (RR5: 228-29). When Forister first spoke with Appellant, Appellant

asked, “is she alive?” (RR5: 229). Forister obtained a search warrant and took a

sample of Appellant’s DNA. (RR5: 231). On cross-examination, Forister

clarified that Appellant did not admit to sexually assaulting S.C., and only

confessed to the assault on S.C. (RR6: 43).

*13 Allison Heard, a technician with the Texas Department of Public Safety Crime Lab, testified that she examined the vaginal swabs collected from S.C.

(RR6: 58). Heard determined that one of the swabs contained a mixture of DNA.

(RR6: 58). Heard compared the DNA samples from S.C. and Roe with the

mixture and determined that the mixture was consistent with the DNA profiles of

S.C. and Roe. (RR6: 59). Heard determined further that the probability of an

unrelated person contributing to the mixture was “1 in 190.3 million for

Caucasians, 1 in 1.174 billion for Blacks, and 1 in 105.8 million for Hispanics.”

(RR6: 59). At the conclusion of Heard’s testimony, the State rested its case in

chief. (RR6: 64).

A bench conference was had wherein Defense Counsel proffered for the Court that he had met with Appellant more than fourteen times at the Williamson

County Jail and had fully explained Appellant’s rights including his right to testify.

(RR6: 66). Appellant agreed with Defense Counsel’s proffer. (RR6: 67).

Defense Counsel explained that he had informed Appellant on many occasions that

it was Appellant’s decision as to whether or not to testify and Appellant agreed that

Defense Counsel had, in fact, relayed that information. (RR6: 67). When asked

if he wished to testify, Appellant repeatedly stated, “I don’t know.” (RR6: 67, 68,

70). Defense Counsel then stated that it was his advice for over a year, based on

the facts of the case and Appellant’s criminal history, that Appellant not testify, but

again, Appellant would not make a decision as to whether he wanted to testify.

(RR6: 67-68). Appellant agreed that had been Defense Counsel’s advice for over

a year. (RR6: 68). When Appellant still would not make a decision, the Court

informed Appellant that only he could make the decision whether or not he would

testify. (RR6: 68). Ultimately, Appellant would not make the decision as to

whether he would testify so Defense Counsel invoked Appellant’s Fifth

Amendment Right not to testify on Appellant’s behalf. (RR6: 70).

When the jury returned, the Defense rested its case in chief. (RR6: 73).

The jury deliberated and found Appellant guilty of aggravated assault with a

deadly weapon and aggravated sexual assault. (RR6: 121).

At the punishment phase of trial, Appellant pleaded true to a prior felony conviction for harassment of a public servant. (RR6: 122). Appellant then

stipulated to evidence that he was adjudicated or convicted of the following

offenses: (1) assault causing bodily injury; (2) criminal mischief; (3) harassment of

a public servant; (4) assault bodily injury – family violence; (5) interference with

an emergency call; and (6) assault family violence – strangulation. (RR6:

129-30). Appellant also stipulated that he was previously committed to the Texas

Youth Commission and the Texas Department of Criminal Justice. (RR6: 130).

Officer Wade Boling of the Travis County Sheriff’s Office gang intelligence unit testified that while Appellant was confined in the Travis County Jail, he

interviewed Appellant to determine if he was affiliated with a gang because of the

tattoos on his face and body. (RR6: 133-34). Appellant had a red dog paw

tattooed on his cheek which indicated to Boling that Appellant was a member of

the “Blood” gang. (RR6: 137). During the interview, Appellant admitted that

he was a “Blood” and a “5/9 Bounty Hunter Blood.” (RR6: 135).

The Court then adjourned for the day. (RR6: 147). The next morning, the Court heard testimony from a Williamson County jailer that Appellant refused to

leave his cell at the Williamson County Jail and refused to participate in trial

proceedings. (RR7: 8-9). Appellant ultimately agreed to be transported to Court

but would not dress in his civilian clothing and once he reached the courthouse,

would not leave the holding cell adjacent to the courtroom. (RR7: 10-11).

Defense Counsel stated for the Court:

Throughout the week Mr. Roe -- and even prior to today, we even had a court hearing several months back where Mr. Roe had threatened to shut down, essentially, and refuse to cooperate with assisting counsel in his own defense. This week he has been cooperative. He has come out, he has spoken with us, although it has not always been easy getting him to cooperate as far as participating in his trial. This morning, when we received this information by phone from the court at approximately 8:00, Mr. Simmons and I were here before 8:30, we both went to the back, we spoke with Mr. Roe about coming out. He steadfastly refuses to come out. He is dressed in a Williamson County *16 Jail uniform with leg restraints. He refuses to participate in the trial in any fashion. It appears to be voluntary. There’s nothing physically wrong with him that’s keeping him from coming out into the courtroom to participate. Mr. Simmons and I have both, on numerous occasions, both today and prior to today, advised him that it is in his best interest to participate with the trial and that it would be detrimental to any defense that we would have for him, should he not participate. Regardless of that advice, Mr. Roe has refused to participate in the trial, against counsel’s advice.

(RR7: 13-14). The parties agreed to an instruction, which the Court gave to the

jury as follows: “The Defendant is not present but, despite his absence, we are

going to go ahead and proceed with the punishment phase of the trial. (RR7: 15).

Deputy Michael Honeycutt of the Travis County Sheriff’s Office then detailed a disturbance he investigated on April 13, 2012, in which Appellant

assaulted and strangled his then girlfriend when she refused to kiss him. (RR7:

17-21). The victim’s cellphone was found at the bottom of a nearby swimming

pool. (RR7: 23). Appellant was later arrested for the offenses of assault causing

bodily injury and interference with an emergency telephone call. (RR7: 23).

Before the State called its next witness, audible screams were heard from the holding cell. (RR7: 26). The screams were heard by everyone, including the

jury, so Appellant was moved to a holding cell in another courtroom. (RR7: 26).

Appellant continued to disrupt other proceedings in the courthouse, so Appellant

was moved back to the Williamson County Jail with instructions that if Appellant

chose to rejoin the proceedings, the jail staff would notify the Court immediately.

(RR7: 28-29, 31-33).

Officer Brian Borget with the Austin Police Department related that on May 11, 2012, he responded to a call where a woman had been assaulted. (RR7: 43).

The woman identified Appellant as the man who assaulted her and Appellant was

found in her house. (RR7: 43). Borget spoke to Appellant who admitted to

hitting the woman. (RR7: 44). After Borget’s investigation, Appellant was

arrested for assault family violence – strangulation. (RR7: 46). Appellant was

placed on probation for that offense, but his probation was later revoked. (RR7:

48).

Balee Hall testified that she met Appellant through FaceBook when he was eighteen years old and she was thirty years old. (RR7: 52-54). They met on

Christmas Day, 2012. (RR7: 54). Hall and her daughter had nowhere to stay, so

Appellant invited them to his grandmother’s house. (RR7: 54). That night, Hall

became intimate with Appellant and had sexual intercourse with him. (RR7: 54).

The two dated for approximately a month. (RR7: 58). Then, in February of

2013, Appellant came to Hall’s place of employment, Chica Bonitas, where she

was a dancer. (RR7: 57-60). Appellant asked Hall to get into the car with

himself and his new girlfriend. (RR7: 60). Hall “hesitantly” complied and they

drove to the hotel where she and her daughter were staying. (RR7: 61).

Appellant had sex with her and took her money from her for the second day in a

row. (RR7: 63-64). Hall called the police after he left and reported that

Appellant had sexually assaulted her and robbed her. (RR7: 64). Hall then

detailed two other incidents in which Appellant assaulted her. (RR7: 64-75).

During his final assault on Hall, Appellant punched her and blood dripped from her

face. (RR7: 79). Hall escaped through a window and was treated at the hospital

for her injuries, which included twelve stitches above her eye. (RR7: 80-83).

On cross-examination, Hall admitted that she did not press charges for anything

Appellant had done to her. (RR7: 99). Hall admitted further that she never

turned Appellant into the police and visited Appellant while he was in the Travis

County Jail. (RR7: 108-11). In addition, Hall had several telephone

conversations with Roe while he was incarcerated. (RR7: 111).

The jury then heard testimony that Appellant attacked two fellow middle school students and a teacher and was expelled because school staff feared he

would sexually attack other students. (RR7: 120-30, 137-38, 144).

Appellant then decided to rejoin the proceedings but refused to answer the Court when asked if he understood he would need to remain respectful and refrain

from any outbursts. (RR7: 141-42). The Court advised Appellant that he would

be allowed to remain in the courtroom as long as he did not disrupt the

proceedings. (RR7: 142).

S.C. took the stand again and detailed the stress and anxiety she has suffered since Appellant attacked her. (RR7: 160-65). The State then rested its case on

punishment. (RR7: 166).

Outside the presence of the jury, Appellant was asked if he wished to testify at the punishment phase of trial. (RR7: 167). Appellant again refused to decide,

so Defense Counsel invoked his Fifth Amendment right not to testify on

Appellant’s behalf. (RR7: 167).

Regina Roe testified that she is Appellant’s grandmother and that both of Appellant’s parents had criminal histories and problems with drugs and alcohol.

(RR7: 171-72). Appellant was taken from his parents by Child Protective

Services when he was six years old because of neglect. (RR7: 174). Since that

time, Appellant was separated from his brothers and sisters and was placed in over

fifteen foster homes. (RR7: 175, 177). When Appellant was twelve or thirteen

years old, he went to live with Regina. (RR7: 179). Regina related that

Appellant suffers from bipolar disorder and ADHD. (RR7: 179-80).

After deliberating, the jury sentenced Appellant to life in prison on each count. (RR7: 207-08).

ISSUE PRESENTED Whether the Instant Appeal Is Frivolous and Without Merit, Such That the Undersigned Should Withdraw as Counsel.

A criminal defense attorney’s duty is to zealously represent the interests of his or her client on appeal. Anders v. California , 386 U.S. 738, 744 (1967). If

the appointed attorney finds the “case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” Anders , 386 U.S. at 744.

Both retained and appointed appellate attorneys have a “duty to withdraw” as counsel when they conclude that an appeal would be frivolous, but appointed

counsel “is presented with a dilemma because withdrawal is not possible without

leave of court, and advising the court of counsel’s opinion that the appeal is

frivolous would appear to conflict with the advocate’s duty to the client.” McCoy

v. Court of Appeals of Wisconsin, District I , 486 U.S. 429, 437 (1988). “It is well

settled, however, that this dilemma must be resolved by informing the court of

counsel’s conclusion.” Id. “Under Anders and its progeny, if an appointed

attorney concludes that his client’s appeal is without merit, he or she must (1) so

inform the court, (2) seek permission to withdraw, and (3) file a brief ‘referring to

anything in the record that might arguably support the appeal.’” Wilson v. State ,

40 S.W.3d 192, 196 (Tex. App. - Texarkana 2001).

As the Supreme Court explained, the attorney’s motion to withdraw must, however, be accompanied by a brief referring to anything in the record that might

arguably support the appeal. Anders , 386 U.S. at 744. A copy of counsel’s brief

should be provided to the Appellant and time should be allowed for him to raise

any points that he chooses. Id . Then, the Court, and not counsel, decides, after

a full examination of all the proceedings, whether the case is wholly frivolous.

Id. If it so finds, it may grant counsel’s request to withdraw and dismiss the

appeal insofar as federal requirements are concerned, or proceed to a decision on

the merits, if state law so requires. Anders , 386 U.S. at 744. In Texas, an Anders

brief need not specifically advance “arguable” points of error if counsel finds none,

but it must provide record references to the facts and procedural history and set out

pertinent legal authorities. See Hawkins v. State , 112 S.W.3d 340, 343-344 (Tex.

App.–Corpus Christi 2003). The attorney’s duty to withdraw is based upon his or

her professional and ethical responsibilities as an officer of the court not to burden

the judicial system with false claims, frivolous pleadings, or burdensome time

demands. McCoy , 486 U.S. at 436. The Supreme Court instructs: “Neither paid

nor appointed counsel may deliberately mislead the court with respect to either the

facts or the law, or consume the time and the energies of the court or the opposing

party by advancing frivolous arguments. An attorney, whether appointed or paid,

is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.”

Id.

PROFESSONAL EVALUATION Counsel would respectfully show the Court of Appeals that the instant appeal is frivolous and without merit, for the following reasons:

The trial court had jurisdiction over the present felony case and venue was proper in Williamson County, where the offenses were alleged to have occurred.

A jury found Appellant guilty of the offenses alleged in the indictment, namely:

aggravated assault with a deadly weapon and aggravated sexual assault. T EX .

P ENAL C ODE §§ 22.02(B)(1), 22.021. The punishment for those offenses, as

alleged in the indictment, and the penalty paragraph therein, is that of not less than

fifteen years nor more than ninety-nine years or life in prison. T EX . P ENAL C ODE

§ 12.42(c). The jury sentenced Appellant to life in prison which is within the

statutory range of punishment. T EX . P ENAL C ODE § 12.42(c), 22.02, 22.021.

POTENTIAL ERRORS CONSIDERED BY COUNSEL Counsel considered the following point of errors on appeal: (1) Whether the evidence was sufficient to support Appellant’s conviction for aggravated assault with a deadly weapon.

It is counsel’s opinion that the evidence in this case was sufficient to support Appellant’s conviction. The Court of Criminal Appeals announced in 2010 that

the legal sufficiency standard set out in Jackson v. Virginia , 443 U.S. 307, 320

(1979), is the only standard that a reviewing court should apply when determining

the sufficiency of the evidence. Brooks v. State , 323 S.W.3d 893, 896 (Tex.

Crim. App. 2010). When reviewing the legal sufficiency of the evidence, an

appellate court views the evidence in the light most favorable to the verdict and

determines whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 320;

Brooks , 323 S.W.3d at 896.

A person commits the offense of aggravated assault with a deadly weapon, as alleged in the indictment, if the person: intentionally, knowingly or recklessly

causes serious bodily injury to another and, during the commission of the offense,

uses or exhibits a deadly weapon. T EX . P ENAL C ODE § 22.02; (CR: 85).

In this case, the jury heard evidence that Appellant repeatedly beat S.C. and exhibited a knife and/or used a pot during the assault. S.C. suffered severe

injuries, including bleeding of the brain and permanent hearing loss as a result of

Appellant’s attack. Therefore, it is counsel’s opinion that any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson , 443 U.S. at 320; Brooks , 323 S.W.3d at 896.

(2) Whether the evidence was sufficient to support Appellant’s conviction for aggravated sexual assault.