Ernest Eugene Gustason v. State ( 2012 )

Opinion issued December 6, 2012
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00042-CR
____________
ERNEST EUGENE GUSTASON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1216684
MEMORANDUM OPINION
Appellant Ernest Eugene Gustason pleaded not guilty to the felony offense of
indecency with a child. See TEX. PENAL CODE ANN. § 21.11 (West 2011). The jury
found appellant guilty, and the trial court assessed punishment at confinement for
three years. The trial court certified that this is not a plea bargain case and that the
appellant has the right to appeal. Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with an Anders brief stating that the record presents no reversible error and
therefore the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,
573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that she has
thoroughly reviewed the record and that she is unable to advance any grounds of
error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell
v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Counsel’s brief reflects that she delivered a copy of the brief to appellant and
informed him of his right to examine the appellate record and to file a response.
See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant has
not filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
2
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)
(explaining that frivolity is determined by considering whether there are “arguable
grounds” for review); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005) (reviewing court must determine whether arguable grounds for review exist);
Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds
exist by reviewing entire record). An appellant may challenge a holding that there
are no arguable grounds for appeal by filing a petition for discretionary review in
the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.1 Attorney Deborah Summers must immediately send the notice required
by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
3
Do not publish. TEX. R. APP. P. 47.2(b).
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