Villanueva v. State

• Decision Date: 18 October 2006
• Docket Number: No. 10-05-00288-CR.,10-05-00288-CR.
• Citation: 209 S.W.3d 239
• Parties: Javier VILLANUEVA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

209 S.W.3d 239

Javier VILLANUEVA, Appellant, v. The STATE of Texas, Appellee.

No. 10-05-00288-CR.

Court of Appeals of Texas, Waco.

October 18, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Allen D. Place, Gatesville, for appellant.

David A. Castillo, Coryell County Dist. Atty., Gatesville, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

The trial court convicted Javier Villanueva (who had waived his right to a jury) of indecency with a child by contact, a second-degree felony, and assessed a ten-year prison sentence. Villanueva's appointed appellate counsel has filed an Anders brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel and this court have notified Villanueva of his right to file a pro se brief or response, but he has not done so. We will affirm the trial court's judgment.

Counsel's Anders brief considers all the issues in areas relevant to an appeal of a felony conviction of indecency with a child by contact in a nonjury trial. See Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-Waco 2001, no pet.), overruled on other grounds by Meza v. State, 206 S.W.3d 684, 688 (Tex.Crim.App.2006). The brief contains references to the record and to applicable statutes, rules, and cases, and it discusses why counsel concludes that the record does not present any arguable issues, including the identification of five issues and discussing why counsel concludes that they are not arguable and that the appeal is wholly frivolous.¹ See id. at 691-92.

The Appellate Court's Duty in Anders Cases

We must always conduct an independent review of the record to determine whether there are any arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). And when an Anders brief raises potentially arguable issues, our "duty is to determine whether there are any arguable grounds and if there are, to remand to the trial court so that new counsel may be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005). But we are not required to review the merits of each claim raised in an Anders brief or a pro se response. Id.

Stated another way, if counsel in an Anders brief or the appellant in a pro se response points out a potential issue, we must determine whether it is arguable or frivolous. See, e.g., Coronado v. State, 996 S.W.2d 283 (Tex.App.-Waco 1999, no pet.); Taulung v. State, 979 S.W.2d 854, 856 (Tex.App.-Waco 1998, no pet.). This duty raises several questions. First, what are "arguable" and "frivolous" issues? Second, by what process do we make the determination that an issue is arguable or frivolous? And third, do we conduct that process transparently or summarily?

Any issue that is "arguable on [the] merits" is, by definition, not frivolous. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. The United States Supreme Court has defined a "wholly frivolous" appeal as one that "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10, 108 S.Ct. 1895, 1902 n. 10, 100 L.Ed.2d 440 (1988); cf. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.) ("It is well established . . . that a proceeding is `frivolous' when it `lacks an arguable basis either in law or in fact.'") (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989)). Also, "[a]n appeal is `frivolous' when `the trial court's ruling[s were] correct' or `the appellant was not harmed by the ruling[s].'" Wilson v. State, 955 S.W.2d 693, 695 n. 2 (Tex.App.-Waco 1997, no pet.) (quoting High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978)). This different definition merely represents a different facet of the Anders process. Taulung, 979 S.W.2d at 856. Once counsel has determined that an appeal is frivolous, counsel must file a brief identifying anything in the record that might arguably support the appeal and discussing either why the trial court's rulings were correct or why the appellant was not harmed by the rulings. Id. "If the only theories that the attorney can discover after [a] conscientious review of the record and the law are `arguments that cannot conceivably persuade the court,' then the appeal should be considered frivolous." Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd) (quoting McCoy, 486 U.S. at 436, 108 S.Ct. at 1901).

We determine whether issues identified by counsel are "frivolous" on a case-by-case basis. Taulung, 979 S.W.2d at 857. "Necessarily, . . . both questions of fact and questions of law may be involved in a determination that an appeal is frivolous." De La Vega, 974 S.W.2d at 154. In determining whether an issue is frivolous, we do not address and rule on its ultimate merit. Bledsoe, 178 S.W.3d at 827; Mitchell v. State, 193 S.W.3d 153, 156 (Tex.App.-Houston [1st Dist.] 2006, no pet. h.).

When counsel has presented potentially arguable issues in an Anders brief, we have detailed our analyses of those issues in determining whether or not they are arguable. See, e.g., Johnson v. State, No 10-05-236-CR, 2006 WL 2439737 (Tex. App.-Waco Aug. 23, 2006, no pet. h.) (mem. op.) (not designated for publication); Fernandez v. State, No. 10-01-121-CR, 2003 WL 131852 (Tex.App.-Waco Jan. 15, 2003, no pet.) (not designated for publication); Coronado, 996 S.W.2d 283; cf. In re K.D., 202 S.W.3d 860 (Tex.App.-Fort Worth 2006, no pet. h.) (reviewing trial court's determination that appeal of termination of parental rights was frivolous). Bledsoe does not preclude us from articulating our analysis; it states that such an exercise is not required. Bledsoe, 178 S.W.3d at 827.

In this case, as we detail below, counsel identified and briefed five issues (in a twenty-page brief). The dissent would have us summarily state our determination that the issues identified by counsel are frivolous, thus omitting from the opinion the analysis behind our determination. Presumably, the portion of our opinion pertaining to the five briefed issues should only state: "Counsel's Anders brief raises five issues; we determine that they are frivolous."

When potentially arguable issues are raised and briefed by counsel in an Anders brief, we believe it is sometimes necessary to identify the issues and to provide the appellant, the bar, and the public with the analysis behind our frivolousness determination.² This transparency comports with the spirit of the applicable appellate rules (see TEX.R.APP. P. 47.1, 47.4) and only increases confidence in the judiciary — especially when it occurs in an appellant's only appeal of right. We will thus provide a transparent, detailed analysis of the five issues raised and briefed by counsel in this case.³

Background

The indictment alleged that Villanueva, with intent to arouse or gratify his sexual desire, intentionally or knowingly caused A.H., a child younger than 17 and not his spouse, to engage in sexual contact with him by causing her to touch his genitals. Villanueva was charged in two other cases with intentionally or knowingly engaging in sexual contact with 12-year-old A.H. and 13-year-old D.H. (who were Villanueva's stepdaughters) by touching their breasts. Villanueva's trial counsel filed numerous pretrial motions for discovery, including motions requesting the State's witness list and notice of extraneous offenses. The trial court granted the motions. The three cases were tried together; the trial court acquitted Villanueva on the two breast-touching cases.

Late Notice of Witnesses

The first potentially arguable issue identified in counsel's Anders brief is whether the trial court erred in not excluding two State's witnesses whom trial counsel alleged were untimely identified. The State filed its amended witness list eleven days before trial; it included two CPS workers not previously identified. Despite a certificate of service showing hand-delivery to defense counsel, he asserted he did not receive it and did not know about it until four days before trial. He filed a motion to exclude the two witnesses, but the trial court, after confirming that Villanueva did not want a continuance and time to prepare for the new witnesses' testimony, denied the motion. Only Kim Walker, one of the two new witnesses, testified at trial; the other did not.

On the defendant's request, the State should give notice of its witnesses. Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App.1989); Horner v. State, 129 S.W.3d 210, 214 (Tex.App.-Corpus Christi 2004, pet. ref'd). If the trial court allows an undisclosed witness to testify, we review the decision for abuse of discretion. Horner, 129 S.W.3d at 214; Castaneda v. State, 28 S.W.3d 216, 223 (Tex.App.-El Paso 2000, pet. ref'd) (citing Stoker, 788 S.W.2d at 15). In determining whether the trial court abused its discretion, we consider whether: (1) the prosecutor acted in bad faith in failing to provide the defense with the name of the witness; and (2) the defendant could reasonably anticipate that the witness would testify despite the State's failure to disclose the witness's name. See Stoker, 788 S.W.2d at 15; Horner, 129 S.W.3d at 214; Castaneda, 28 S.W.3d at 223. In determining whether the State acted in bad faith in failing to provide the name of the witness, we consider whether the State intended to deceive, whether the State's notice left adequate time to prepare, and whether the State freely provided the defense with information. See Horner, 129 S.W.3d at 214; Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.-Texarkana 2000, pet. ref'd); see also Stoker, 788 S.W.2d at 15.

Villanueva cannot show bad faith on the State's part, nor can Villanueva show surprise since Walker was identified as someone Villanueva had spoken with as part of CPS's investigation. Walker had been identified in the police report, previously provided in discovery, with a...