Carlos McCain v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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CARLOS MCCAIN, No. 08-19-00219-CR
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Appellant, Appeal from the
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v. 120th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20180D02769)
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MEMORANDUM OPINION
Appellant, Carlos McCain, appeals his conviction of sexual assault of a child and asks this
Court to reverse and remand the case for a new trial. 1 See TEX.PENAL CODE ANN. §§ 22.011,
12.42(c)(2)(defining enhanced punishments for prior sexual assault convictions). Counsel for
Appellant filed a brief in compliance with Anders v. California, 386 U.S. 738, 744 (1967) and
Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Appellant timely filed a notice of appeal.
Appellant also filed a pro se brief, contending that the State varied the indictment rendering it
impermissible, denied Appellant his right to confrontation of witnesses, denied him an impartial
jury, and that he suffered ineffective assistance of counsel. The State, thereafter, filed a response
brief addressing Appellant’s pro se appeal. We affirm.
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A motion for a new trial was not filed or ruled upon.
FACTUAL SUMMARY
The State indicted Appellant for sexual assault of a child with a prior felony conviction of
sexual assault. A jury found Appellant guilty of sexual assault of a child as charged in the
indictment. Appellant stipulated to previous convictions of sexual assault of a child, failing to
comply with the sex offender registration, failing to comply with the sex offender registration with
a previous conviction, possession of a controlled substance, and burglary of habitation. The trial
court sentenced Appellant to life in prison pursuant to the Texas Penal Code § 12.42(c)(2), finding
Appellant had been previously convicted of sexual assault of a child.
Analysis Pursuant to Anders v. California
Appellant’s court-appointed counsel filed a motion to withdraw, along with a brief stating
that no meritorious issues of appeal exist that could conceivably support reversal of the trial court’s
judgment. Counsel’s brief presents a professional evaluation of the record demonstrating why, in
effect, there are no arguable grounds to be advanced. See Anders, 386 U.S. at 744; In re Schulman,
252 S.W.3d 403, 406 n.9 (Tex.Crim.App. 2008)(“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.”); High v. State, 573 S.W.2d
807 (Tex.Crim.App. 1978). Additionally, counsel notified the Court in writing that he delivered a
copy of the brief and motion to withdraw to Appellant, and he has advised Appellant of his right
to review the record, and file a pro se brief. Kelly v. State, 436 S.W.3d 313, 318–20
(Tex.Crim.App. 2014)(setting forth duties of counsel). In addition, Counsel also stated he provided
Appellant with a copy of the trial court’s record and reporter’s record in compliance with Kelly.
Id.McCain filed a pro se brief in response. The Court of Criminal Appeals has held that we
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need not address the merits of issues raised in Anders briefs or pro se responses. Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). Rather, an appellate court may determine either:
(1) “that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the
record and finds no reversible error[;]” or (2) “that arguable grounds for appeal exist and remand
the cause to the trial court so that new counsel may be appointed to brief the issues.” Id. at 826-
27.
INDEPENDENT REVIEW
We have determined that this appeal is wholly frivolous. After carefully reviewing the
record, counsel’s brief, Appellant’s pro se brief, and the State’s response, we agree with counsel’s
conclusion that no arguable issues support the appeal. See Schulman, 252 S.W.3d at 409 (a
reviewing court must conduct its own independent examination of the record when counsel files
an Anders brief to ascertain arguable grounds for an appeal). Therefore, we find it unnecessary to
order appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503,
511 (Tex.Crim.App. 1991).
MOTION TO WITHDRAW
Finding Appellant’s counsel has substantially complied with the requirements of Anders
and Kelly, we grant counsel’s motion to withdraw. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d
at 318–20. However, we note counsel’s motion to withdraw fails to mention whether he informed
McCain of his right to seek discretionary review in the Texas Court of Criminal Appeals if this
Court finds that the appeal is frivolous. See Kelly, 436 S.W.3d at 318–20; Ex Parte Owens, 206
S.W.3d 670, 674 n.28 (Tex.Crim.App. 2006); Meza v. State, 206 S.W.3d 684, 689 n.23
(Tex.Crim.App. 2006).
Therefore, within five days of the date of this Court’s opinion, counsel is ordered to send
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a copy of this opinion and this Court’s judgment to McCain and to advise him of his right to file a
petition for discretionary review. See TEX.R.APP.P. 48.4; see also In re Schulman, 252 S.W.3d at411 n.35; Owens, 206 S.W.3d at 673.
No substitute counsel will be appointed. Should McCain wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or the last
timely motion for rehearing that is overruled by this Court. See TEX.R.APP.P. 68.2. Any petition
for discretionary review must be filed in the Court of Criminal Appeals. See TEX.R.APP.P. 68.3.
Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas
Rules of Appellate Procedure. See TEX.R.APP.P. 68.4.
CONCLUSION
We affirm the trial court’s judgment.
June 29, 2021
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
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