Eric Michael McElroy v. the State of Texas ( 2022 )

NO. 12-20-00199-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ERIC MICHAEL MCELROY, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Eric Michael McElroy appeals his conviction for aggravated sexual assault of a child.
Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of aggravated sexual assault of a
child younger than fourteen years of age, by intentionally and knowingly causing the penetration
of the mouth of the child by the Appellant’s sexual organ, a first degree felony. 1 Appellant
pleaded “not guilty” and waived a jury trial. Appellant’s counsel filed a motion suggesting that
he was incompetent to stand trial and requested an examination by an expert. The motion was
granted and, after an evaluation by a licensed psychologist, the trial court adjudged, and both
parties agreed, that Appellant was competent to stand trial. The trial court conducted an outcry
hearing, finding that Candace Salter, an assistant instructional aide at the child’s school, was the
sole outcry witness.
1
TEX. PENAL CODE ANN. § 22.021(a)(1)(B),(e) (West Supp. 2019).
The case proceeded to a bench trial and Appellant pleaded “not guilty.” The witnesses
included Salter, who stated that the child informed her that she did not want to go home to her
father because he made her “do a favor” if she wanted a piece of candy. The favor was that her
father would pull his pants down, make the child get on her knees, insert his “weenie” in her
mouth, and tell her to suck on it. Later, the child described what happened, getting down on her
knees and putting her thumb in her mouth from an upward angle. She also stated that her father
would tell her when he was finished, and that “it has a salty taste like the ocean.” At the
conclusion of the trial, the trial court found Appellant guilty of aggravated sexual assault of a
child as charged in the indictment. At the sentencing hearing, Appellant discussed his previous
criminal record, including convictions for theft and harassment, and several dismissed charges,
and his previous employment. Consequently, the trial court assessed Appellant’s punishment at
twenty-five years of imprisonment. 2 This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he
diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. From our
review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978), counsel’s brief presents a chronological summation of the procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. 3
Appellant filed a pro se response, stating that his trial counsel rendered ineffective
assistance of counsel by failing to object to improper bolstering of the alleged victim by an
expert witness, to object to witnesses giving their opinion concerning the truth of another
person’s testimony, to prepare and support proper defensive strategy of Appellant’s greed,
fantasy, and attention-seeking theory, to educate himself on “on or about” language, to ensure
2
An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for
any term of not more than ninety-nine years or less than five years, and a fine not to exceed $10,000.00. Id. § 12.32
(West 2019).
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief.
2
that Appellant’s decisions were based on correct information as to applicable law, to challenge
the expertise of the forensic interviewer with the Martin House Children’s Advocacy Center, to
cross-examine the forensic interviewer. Further, Appellant argues that the evidence was
insufficient to support a conviction, stating that the evidence is too weak to support the fact
finder’s verdict, that the fact finder’s verdict is against the great weight and preponderance of the
evidence, and that the testimony at trial does not meet the elements of the alleged crime because
of inaccuracies in prior interviews.
We have reviewed the record for reversible error and have found none. See Bledsoe v.
State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403,
407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so and finding no reversible error, Appellant’s counsel’s motion for leave to
withdraw is hereby granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 22 S.W.3d at 411 n.35. Should
Appellant 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 he must file a pro se
petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or, if a
motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by
this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary
review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered February 28, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 28, 2022
NO. 12-20-00199-CR
ERIC MICHAEL MCELROY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2019-0259)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that this decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.