Sipriano Gutierrez, Jr. v. State ( 2005 )

NO. 07-05-0130-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 13, 2005
______________________________
SIPRIANO GUTIERREZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B15466-0404; HONORABLE ED SELF, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Sipriano Guitierrez Jr. appeals from his convictions by jury trial for the
offenses of aggravated sexual assault of a child and indecency with a child. We affirm.
On March 22, 2005, appellant was found guilty by jury trial of aggravated sexual
assault of a child and indecency with a child. The jury assessed ten years confinement in
the Institutional Division of the Texas Department of Criminal Justice for the offense of
aggravated sexual assault and five years confinement for the offense of indecency with a
child. Appellant filed notice of appeal.
Counsel for appellant has filed a Motion to Withdraw and a supporting brief in
compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967). In support of the Motion to Withdraw, counsel has certified that the record has been
diligently reviewed. The brief discusses the factual and procedural history of the case as
well as the evidence presented and identifies arguments that may be advanced on appeal,
in conformity with counsel's obligation to support the appeal to the best of his ability.
Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet. ref'd). Appellate
counsel raises legal and factual sufficiency as potential issues; however, in counsel’s review
of the record, he determines that the evidence was sufficient to support the convictions. If
the only theories that the attorney can discover after this conscientious review of the record
and the law are "arguments that cannot conceivably persuade the court," then the appeal
should be considered frivolous. Id. In the opinion of counsel, the record reflects no
reversible error or grounds upon which a non-frivolous appeal can arguably be predicated.
Counsel thus concludes that the appeal is frivolous.
In addition, counsel has attached exhibits showing that a copy of the Anders brief and
Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately
advised appellant of his right to review the record and file a response to counsel’s motion
and brief. See id. at 646-47. Appellant has not filed a response to counsel’s motion and
brief.
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However, we will not rule on the motion to withdraw until we have independently
examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997,
no pet.). We have made an independent examination of the record to determine whether
there are any arguable grounds for appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct.
346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
In addition to the issues already presented by appellate counsel, our review reveals that
appellant’s trial counsel did not object to testimony elicited from witnesses that referred to
another incident that could have potentially prejudiced the jury. Thus appellate counsel
could have also raised ineffective assistance of counsel for the failure to timely object to the
testimony of the extraneous offense during the guilt-innocence portion of the trial.
A criminal defendant has a constitutional right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez
v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). Under the two prong test laid out in
Strickland and adopted in Hernandez, counsel is ineffective if (1) counsel's performance was
deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a
reasonable probability that but for counsel's deficient performance the result of the
proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 110
(Tex.Crim.App. 2003). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. However, there is a strong presumption that trial counsel's
performance was within the wide range of reasonable professional assistance. Strickland,
466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992). The adequacy
of representation is based upon the totality of the representation rather than by isolated acts
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or omissions of trial counsel. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Crim.App. 1994).
In this particular case, trial counsel for appellant may not have objected to testimony of the
extraneous offense as part of sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex.Crim.App. 1994). A review of the record reveals that appellant sought an expert
witness regarding a medical condition of the victim, and that appellant questioned witnesses
as to the delay in the victim’s outcry. Without an explanation underlying counsel’s decision
not to object to evidence of the extranous offense and to focus on the delayed outcry, we
cannot conclude that trial counsel provided ineffective assistance of counsel. Id. After our
independent review, we agree with appellate counsel that the appeal is frivolous.
Accordingly, counsel’s Motion to Withdraw is granted. The judgment of the trial court
is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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