Lopez v. State, No. 13-01-635-CR (TX 1/12/2006)
| Decision Date | 12 January 2006 |
| Docket Number | No. 13-01-635-CR.,13-01-635-CR. |
| Parties | JEROME LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 24th District Court of De Witt County, Texas.
Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
Appellant, Jerome Lopez, was found guilty of aggravated sexual assault of a child, see TEX. PEN. CODE ANN. § 22.021 (a)(1)(B)(i) (Vernon Supp. 2004-05), and sentenced to ninety-nine years' imprisonment. Appellant now appeals the adjudication of guilt. We affirm the judgment of the trial court.
Appellant's counsel filed an Anders brief with this Court in which she concludes, after careful investigation, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief presents a professional evaluation showing why there is no basis to advance an appeal. See Stafford v. State, 813 S.W.2d 503, 509-10, 510 n.3 (Tex. Crim. App. 1991). We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744-45; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd) (per curiam).
In the Anders brief, counsel raises two potential issues: (1) the court failed to declare the victim incompetent to testify, and (2) appellant was afforded ineffective assistance of counsel.
We first address appellant's argument regarding the court's failure to declare the victim's (C.M.) testimony inadmissible on the grounds she was incompetent. A child is deemed incompetent to testify if, "after being examined by the court, [she] appears not to possess sufficient intellect to relate transactions with respect to which [she] is interrogated." See TEX. R. EVID. 601(a)(2). Rule 601(a)(2) "places the power to determine a witness' competency into the hands of the trial judge." Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995). A ruling by the trial court on this issue will not be disturbed upon review unless an abuse of discretion is shown. See id.
Appellant took issue with C.M.'s inability to distinguish between the definitions of a truth and a lie. However, when counsel posed a series of hypothetical true and false statements to C.M. in order to determine her level of understanding, her responses demonstrated that she was in fact aware of the concepts of truth and falsity and able to apply these concepts. Appellant also asked C.M. if she knew what an oath was, which she did not. However, as stated in Fields v. State, 500 S.W.2d 500, 502 (Tex. Crim. App. 1973), "even though a child states he does not know the meaning of an oath or what it means to swear, he may nevertheless be a competent witness if he knows it is wrong to lie." C.M. testified that she knew it would be bad to tell a lie, thereby demonstrating an understanding of the concept. Therefore, we conclude the trial court did not abuse its discretion in finding C.M. competent to testify. This issue is overruled.
Appellant also alleges that there may be error resulting from ineffective assistance of counsel. Appellant argues that his attorney was obligated to object to C.M.'s testimony and preserve the error for appeal. Further, he argues that the proper standard of review to be used for this error should be that of United States v. Cronic, 466 U.S. 648 (1984). Cronic held that ineffective assistance of counsel will be presumed when there exist circumstances that are egregiously prejudicial. See Cronic, 466 U.S. at 658. After a thorough review of the record, we conclude there are no egregiously prejudicial circumstances here. This Court evaluates the effectiveness of counsel in circumstances such as this based on the Strickland standard of review, which is well-established and unnecessary to repeat here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Munoz v. State, 24 S.W.3d 427, 433-34 (Tex. App.-Corpus Christi 2000, no pet.) (applying the Strickland standard). As the record shows, appellant's attorney did object and preserve this potential issue. Before C.M. testified, counsel asked to approach the bench, whereby the jury left the room and the trial court indicated that counsel had an "objection or question about the competency of the witness." Thereafter, the trial court ruled that C.M. was competent and asked that the jury be brought back in. Counsel's specific grounds for objecting were apparent from the context and the trial court implicitly ruled on the objection. See Tex. R. App. P. 33.1. Furthermore, there is no other evidence in the record demonstrating any ineffectiveness by counsel.
We agree with counsel and conclude that appellant's two issues are without merit.
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988).
In conducting our independent review, we note that appellant filed a pro se motion in which he requested that this Court allow him to present an "oral" brief. According to his motion, his poor health as well as a conspiracy against him by various agencies prevents him from filing a written brief. However, we decline to grant this motion, given that we find no exception in the rules of appellate procedure or case law allowing us to consider an "oral" brief. Furthermore, we have independently reviewed the entire record and find no meritorious grounds for appeal, which leads us to conclude that an "oral" brief would not be helpful or necessary in this case. We conclude that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509.1 Accordingly, we affirm the judgment of the trial court.
Counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order her to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
The judgment of the trial court is affirmed.
I join the majority with the granting of counsel's motion to withdraw.
I write separately on the issue of whether Lopez's appeal is frivolous and without merit because the majority summarily states that this Court independently reviewed the record for error without explaining what that review entailed. I do not believe Penson permits us to be conclusory in reciting our compliance with our independent duty under Anders, any more than it permits Anders counsel to summarily conclude that an appeal is without merit. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Anders v. California, 386 U.S. 738, 744-45 (1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Our duty is to determine whether there are any arguable grounds for appeal, and to "hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." Bledsoe v. State, No. PD-300-04, 2005 Tex. Crim. App. LEXIS 1969, at *6, *10-*11 (Nov. 16, 2005) ; see TEX. R. APP. P. 47.1.
Just as an Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced, High, 573 S.W.2d at 812, similarly, we should inform the parties what we have done, not just assure them we have done it, and indicate in the opinion that we considered the issues raised in the briefs and reviewed the record. Bledsoe, 2005 Tex. Crim App. LEXIS 1969, at *11.
This is an appeal following a jury trial in a aggravated sexual assault of a child case. The trial court has certified that Lopez has the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Accordingly, just as we required of Anders counsel in this case, I would detail our independent review of the case, including the indictment, pre-trial motions, voir dire, opening statements, legal and factual sufficiency of the evidence, the jury charge, closing argument, and the punishment phase. See Gearhart v. State, 122 S.W.3d 459, 465-69 (Tex. App.-Corpus Christi 2003, pet. ref'd) (). As part of our review under Anders, we consider the entire record. Id. at 464-65. Moreover, I address the matters counsel has raised in the appellate brief.
The indictment properly alleges the offense of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021 (a)(1)(B)(i) (Vernon Supp. 2005). Even if error did exist in the indictment, the error could not be raised on appeal because Lopez did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. ANN. art. 1.14(b) (Vernon 2005); see Ex parte Smith, No. PD-0616-04, 2005 Tex. Crim. App. LEXIS 1773, at *12 (Oct. 19, 2005)(en banc). I find no arguable error in the indictment.
The record reflects that Lopez's defense counsel filed numerous pretrial motions and motions in limine. In advance of trial, Lopez filed two motions to have his counsel removed, those were not ruled upon prior to the date of trial. However, after jury selection but outside the hearing of the jury, and prior to commencement of the trial, the trial court heard...
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