Fuh, Ayunwi Meme ( 2015 )

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IN THE ORIGINAL
TEXAS COURT OF CRIMINAL APPEALS
Ayunwi Meme Fuh,
Petitioner,
Vs. No. 01-13-C
. COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS, NAY 2 2 2C15
Respondent. Abel Acosta, Clefa
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COURT OF CRIMINAL APPEALS
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MAY 18 2015
PETITION FOR DISCRETIONARY REVIEW
Abet Acosta,Clerk
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Ayunwi Meme Fuh Donald R. Cantrell
14918 Havenridge dr 800 Bering #208
Houston Tx77083 Houston, Tx 77057
Memefuh400@yahoo.com
Petitioner Appointed appellate counsel
PETITIONER REQUESTS ORAL ARGUMENT
TABLE OF CONTENTS Pages
Index of Authorities 5-6
Statement Regarding Oral Argument 7
Statement of the Case 8-9
Statement of Procedural History 9
Grounds for Review 10-13
Argument 14-26
Appeals court Opinion and Judgement attached (3 pages)
1. The illegal acquisition of evidence (Tainted) requires suppression.
The law of Texas requires the illegal acquisition of evidence to not be
adduced in court. CCP Art 38.23 this was not the situation with
petitioner's case leading to a conviction. Suppression of evidence is
required under Texas law.
2. The court of Appeal's ruling that the petitioner's appeal is frivolous
and that there are no arguable grounds for review with no reversible
error is incorrect and therefore not grounds to ignore the requirements of
CCP art. 38.23 12, and 37.02 and proof beyond reasonable doubt.
3. The incorrect and untrue jury charge resulted in a wrongful
conviction. The Jury charged and convicted petitioner with sexual
assault by penetration which was untrue and unfounded contrary to Ch.
14-27.10 of the CCP which requires proof of penetration and be proven
beyond reasonable doubt.
4. Inconsistent statements and lies under oath (perjury) made by the
complainant contrary to sections 37.06 and 37.02 of the CCP leading to
a conviction.
5. Tampering with and fabricating evidence (tainted) by complainant's
mother contrary to sec. 37.09 of the CCP leading to a conviction.
6. The failure to raise a valid legal claim that necessarily would have
resulted in a reversal apparently also constitutes ineffective assistance by
trial and appellate Counsels see Ex parte Daigle, 848 S.W.2d 691, 692
(Crim.App. 1993)
Petitioner's attorney's brief to the appeals court that petitioner's appeal
is frivolous should be moot and the court should consider petitioner's
own written pro se response to Anders brief as the attorney on record
never consulted with petitioner on the reasons and grounds of his appeal
despite the numerous times that petitioner tried to meet with appellate
attorney about his case. Instead, appointed counsel requested for money
from petitioner before any possible representation. Please see
petitioner's letter with Appeals court from his attorney, requesting
$7500 before any representation.
Prayer for Relief 27-29
Certificate of Service 30
Certificate of Compliance 30
Appendix post 31
INDEX OF AUTHORITIES
Cases
Ex parte Wilson, 956 S.W 2d 25, 27(Tex.Crim.App.l997)
Ex parte Bradley, 781 SW2d 886,894 (Crim. App. 1989) pg. 20
Alvarado v. State, 775S.W.2d 851, 857 (Tex. Crim. App.—San Antonio
1989, pet. ref.) pg. 21
Ex parte Daigle, 848 S.W.2d 691, 692 (Crim. App. 1993) pg. 21
Sanchez v. State,\%2 S.W.3d 34(Tex.App.-SanAntonio 2005) affirmed
209 S.W.3d 34 (Tex.Crim.App. 2006)(same) Pg. 22
Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995) pg. 25
Evans v. State, 606 S.W.2d 880 (Tex.Crim.App. 1980) pg. 26
Woods v. State, 653 S.W.2d 1 (Tex.Crim.App. 1980) pg. 26
Warner v. State, 245 S.W.3d 458, 462 (Tex.Crim.App. 2008) pg. 23
Waldon v. State, 579 S.W.2d 499, 502 (Tex.Crim.App. 1979) pg. 24-25
Taylor v. state 332 s.w.3d 483,489(Tex.Crim.App.2011) pg. 23
Hudson v. Michigan, 547 U.S. 586 (2006) pg. 16
Pham v. State, 175 S.W.3d 767 (Tex.Crim.App. 2005)
Weeks v. U.S., 232 U.S. 383 (1914). Pg. 16
Almanazv. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)pg. 24
Statutes
Code of Criminal Procedure Art. 38.23 7, 12-13, 37.02, 37.06, 37.09,
14-27.10
Rules
TRAP 9.4(i)(2)(D)
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes oral argument would be helpful to the Court because
the issues raised are issues of first impression and the public policy
behind resolution of these issues could be better discussed in the context
of oral argument, where the Court can ask questions and consider
alternatives and critical issues that petitioner is prepared to discuss and
portray as this case presents novel issues that the court has not
previously addressed.
STATEMENT OF THE CASE
This case concerns a conviction of sexual assault of a child under the age
of 17 based on a jury charge that does not conform to Ch. 14-27.10 of
the CCP which requires proof of penetration and prove beyond
reasonable doubt. It also concerns the defective indictment about the
use of force and penetration which needs to be proven, the issue of
whether tainted evidence should be adduced in trial where there is
reasonable doubt questioning the legality and reliability of the evidence
adduced at trial and its sufficiency, when and from whom the evidence
was acquired; which was clearly contrary to the date on court files
purporting the date of the alleged offence and the person it was collected
from (complainant's mother), contrary to CCP Art. 38.23, and whether
evidence acquired illegally should be suppressed as per the Texas code
of criminal procedure. Also whether false .testimony under oath by the
complainant should have been admissible. Complainant was coerced by
her mother to falsely testify against petitioner, leading to a conviction
contrary to sec. 37.02 CCP. This conviction should be overturned as the
charge was unfair, improper and no crime was ever committed in the
first place.
STATEMENT OF PROCEDURAL HISTORY
(1) Date of opinion from Court of Appeals: April 9, 2015
(2) Date of Motion for Rehearing: None was filed.
(3) Date Motion for Rehearing Disposed: N/A
ABBREVIATIONS AND REFERENCES
The required documents and several other key documents that petitioner
is presenting to the court are attached to this Petition in the Appendix.
GROUNDS FOR REVIEW
1. Insufficient evidence that was tainted exits to contradict the
findings of the Jury as the only piece of evidence adduced at trial was
not suppressed even after a motion was filed for the evidence to be
suppressed due to its illegal acquisition directly from complainant's
mother to the police. Semen was put on several items by complainant's
mother on a shirt, pant, panties and shoes which were not traced to any
particular female by DNA, on a date different from the date alleging the
offence, by complainant's mother whom petitioner was dating. Yet only
the panties' was brought to trial. All elements, if brought to trial would
have raised doubts as to how did semen possibly get to all
aforementioned items if it was not put there intentionally in a bid to set
up and frame petitioner. Complainant's mother told petitioner she was
doing this to destroy his future and that the courts would believe her
daughter's story.
10
2. The jury charge and finding of sexual assault of a child under the age
of 17 and verdict did not contain the requirement of guilt beyond a
reasonable doubt nor proof of penetration as required under Ch. 14-
27.10 CCP. The jury subsequently asked a question that would have
allowed the trial judge to fix the mistake in the original charge for it to
be dismissed, so that the jury would have been informed of the correct
law. However, the trial court answered the jury's question about the
definition of penetration and sexual assault by referring them to the
testimony only and failing to define and explain per statute of law
thereby swaying the jurors' minds toward convicting petitioner
wrongfully. Those errors undoubtedly lead to a conviction.
3. Illegal acquisition of evidence (tainted) exists to support petitioner's
review request and wrongful conviction outcry contrary to the Texas
code of criminal procedure. On a date not mentioned as the date of the
alleged offence which is alleged to have occurred in petitioner's
apartment, complainant's mother in her own house where she had just
been intimate with petitioner personally handed some clothing to the
li
police she had called, away from the alleged crime scene about 20 miles
from petitioner's apartment, almost a week after the alleged assault.
Complainant was not wearing these clothing and was not even present
when her mother was personally handing over those clothing to the police,
saying they would find evidence there. This evidence was clearly tainted
and illegally acquired contrary to CCP Art. 38.23 and should not have
been adduced at trial. This lead to a conviction. Insufficient and tainted
evidence exists to contest the finding of the jury, so the conviction
cannot stand.
4. Perjury and inconsistent statements made by complainant under
oath contrary to sec. 37.02 and 37.06 CCP. Complainant during cross
examination insisted that she had told her mother of the alleged assault
on the same day and that they had gone to the hospital that same night.
That was not true. Petitioner was present at the complainant's house on
the 3rd ofApril 2012 until about midnight and we all said good night to
each other and petitioner left for work after. No vaginal swabs were
taken, which would have cleared petitioner. Medical assessments
12
showed no foul play. Even CPS in an interview with complainant said
the girl was not credible and did not look like she had been assaulted
from the evidence, and statement she gave CPS. This conviction cannot
stand.
5. Petitioner's pro se response to Ander which contained the issues at
stake for his appeal was never considered by the court of appeal thereby
violating his right to appeal his case and prove his innocence. The failure
to raise a valid legal claim that necessarily would have resulted in a
reversal apparently also constitutes ineffective assistance by appellate
counsel see Ex parte Daigle, 848 S.W.2d 691, 692 (Crim. App. 1993)
13
ARGUMENT
1. The illegal acquisition of evidence requires that the evidence be
suppressed.
Under Texas statutory law, if the Fourth or Fifth Amendment is violated
where evidence is illegally acquired, it is automatically suppressed, the
main issue here is:
The police in this case violated petitioner's Constitutional rights by
illegally collecting evidence from complainant's mother who was angry
with him at the time, from her house and not from my apartment where
the alleged crime is purported by the state to have occurred; almost a
week after the alleged crime date. Such evidence should be suspected,
inadmissible and suppressed. The complainant never liked me and
would do everything her mother told her in order to get rid of me. The
complainant has a deep record of lies telling and false pretense from her
school records. Failure by the state to thoroughly investigate and
suppress the evidence illegally acquired led to a wrongful conviction
which should be overturned and dismissed as no crime was ever
14
committed. The entire case was a setup orchestrated by complainant's
mother whom petitioner was dating and was at the point of breaking up
with her to go out of state and attend nursing school, when she pressed
false allegations against petitioner in retaliation to his breaking up with
her and personally handed evidence to the police almost a week from the
date of the alleged crime in her own house, a location about 20 miles
from petitioner's apartment where the alleged crime is purported to have
happened. Suppression ofevidence especially illegally acquired is
required under Texas law. Under federal law, suppression of evidence
is not always necessary just because police violate the knock-and-
announce rules. Hudson v. Michigan, 547 U.S. 586 (2006, Kennedy, J.,
concurring in the judgment). However, there is no "federal
exclusionary" statute. Under federal law, the exclusionary rule is
exclusively common law and can be changed by the courts. Weeks v.
U.S., 232 U.S. 383 (1914). In Texas, the exclusionary rule is statutory
and requires suppression of evidence where the legal or Constitutional
rights of the suspect are violated by the illegal collection of evidence.
The CCP states in relevant part: Art. 38.23. EVIDENCE NOT TO BE
15
USED, (a) No evidence obtained by an officer or other person in
violation of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any
criminal case. Evidence in this case was tainted by complainant's mother
' who had promised to destroy petitioner's life in a printed out text
message; which the court of appeal has. Evidence was not collected on
the purported date included in the indictment. Complainant was also not
wearing the clothes which her mother personally handed to the police
officer informing him that he would find evidence in them. The
complainant was not even present at the scene when evidence was being
handed to the police by complainant's mother whom I was dating. All of
these happened right after the complainant's mother had been intimate
with petitioner, which she admitted in court under oath and even had
access to the condom they shared in her house; not at the petitioner's
apartment where the alleged assault is purported to have occurred. The
indictment states that the alleged crime occurred on or around April 3
2012 at petitioner's apartment but evidence was personally handed to the
16
police by petitioner's girlfriend almost a week later in her house where
she always got intimate with petitioner. The evidence in this case should
have been suppressed based on these findings, unfortunately, that never
happened. Failure to suppress the evidence led to a wrongful and unfair
conviction and should be overturned. I implore the honorable court to
grant this for I am innocent of any wrong doing or violation of the law.
2. The Court of Appeals' ruling that petitioner's appeal has no
arguable grounds for review and that the appeal is frivolous is
incorrect and therefore not grounds to ignore the requirements of
CCP art. 38.23. and Ch. 14-27.10
Petitioner was unfairly charged and the case was not proven beyond
reasonable doubt as stipulated by our law. The appeals court misapplied
precedent and misconstrued statute. Proof of sexual assault and
penetration requirements must be met as per Ch. 14-27.10 of the CCP
and that tainted evidence should not be adduced in trial as per CCP art.
38.23. These are pertinent legal elements that apply to my case and are
arguable grounds especially on a case of this nature. The medical exam
17
showed no physical evidence of sexual assault, no epithelial tissue cells
from petitioner on evidence tendered, no hair, no bruises, no redness or
tearing. The dates stipulated on the indictment are completely different
from the dates that evidence was collected. False testimony that is easily
proven and inconsistent statements by complainant are all grounds for an
appeal, including the failure to suppress illegally obtained evidence that
was tainted are serious grounds for an appeal as per our laws.
3. The improper jury charge resulted in a wrongful conviction. The
improper and untrue jury charge resulted in a wrongful conviction. The
Jury charged and convicted petitioner with sexual assault by penetration
which was untrue and unfounded contrary to Ch. 14-27.10 of the CCP
which requires proof of penetration and be proven beyond reasonable
doubt. Even when there was a hung jury twice, and there was no
evidence what-so-ever physically and no epithelial cells from
petitioner's skin cells was found on evidence tendered; which would
normally have triggered an actual innocence probe on the part of the
jury, and cleared petitioner of any wrong doing. Nothing was ever
18
proven because no crime was ever committed. The prosecution wanted a
conviction by all means possible, not caring about the innocence of the
petitioner or even a proof beyond reasonable doubt as stipulated by
statute. The illegal acquisition of evidence was not questioned by any
authority and was used to convince the jury into an unfair conviction.
This conviction cannot stand.
4. Inconsistent statements and lies under oath (perjury) made by the
complainant contrary to sections 37.06 and 37.02 of the CCP leading to
a conviction. When the complainant was asked by the medical examiner
if petitioner had touched her in any part of her body, she said no but
during trial she answered, yes and went ahead to say that petitioner had
assaulted her on the 3rd of April 2012 and that she had told her mother
the same day and they had proceeded to the police that same day, when
asked during cross examination; is clearly not true as court records show
that all of that was tendered almost a week later after complainant's
mother had acquired her illegal and tainted evidence, and coached
complainant on what to tell the police. The State's pretrial investigative
19
procedure was so impermissibly suggestive that it created false
testimony while suppressing exculpatory evidence [Ex parte Bradley,
781 SW2d 886,894 (Crim. App. 1989)]
5. Tampering with and fabricating evidence (tainted) by
complainant's mother contrary to sec. 37.09 of the CCP leading to a
conviction. Evidence in this case was improperly and illegally collected.
Complainant's mother who was dating petitioner personally called the
police on a day not mentioned in the indictment and handed them some
clothing supposed to belong to her daughter, who was not wearing them
and was not even present when the clothing was being collected by the
police in her house and not petitioner's apartment. Petitioner's apartment
is supposed to be the alleged crime scene, yet evidence was collected
miles away from a third party without complainant wearing them.
Tampering with such evidence and personally handing them to the
police was a clear violation of the law and led to an illegal conviction. I
pray that the higher court see these facts and reverse this unfair
conviction. Complainant's mother knowing full well that she had
20
tampered with the clothes she was handing over to the police, made sure
she personally handed a shirt, pant, and panties, saying that the police
would find evidence in them. This malicious act of complainant's
mother is totally illicit and that evidence was not ordered suppressed by
the trial court, leading to a conviction. This evidence was never collected
at the alleged crime scene, not even on the alleged day of the purported
assault. This conviction cannot stand.
6. Jury probes and the failure to raise a valid legal claim that
necessarily would have resulted in a reversal apparently also constitutes
ineffective assistance by trial and appellate Counsels see Ex parte
Daigle, 848 S.W.2d 691, 692 (Crim. App. 1993) Although there is no
limit to the acts and omissions of defense counsel that may give rise to a
colorable claim of ineffective assistance, the following is a compilation
of some of the most common areas in which relief has been granted: 1.
Failure to object to inadmissible evidence:
Inadmissible hearsay [Alvarado v. State, 775S.W.2d 851, 857 (Tex.
Crim. App.—SanAntonio 1989, pet. ref.)]." Petitioner's trial attorney
21
failed to object to evidence tendered at trial, and fundamental error when
during cross examination of the complainant she insisted that she had
reported the alleged sexual assault to her mother and they had proceeded
to the police and then to the hospital that same day. There was no sign of
sexual assault or proof of penetration in this case. The omission and
failure to object to fundamental error, led to a wrongful conviction.
Appellate counsel after receiving a letter from petitioner about this error
still failed to mention it in his Anders' brief including petitioner's
grounds for his appeal. Appellate counsel failed to look at the crucial
aspects pointed out to him by petitioner about the tainted evidence and
false testimony, but went ahead to ask for $7500 before any
representation what-so-ever. Please see his letter to petitioner about this
issue with court of appeal. Leaving an offense element out of a jury
charge, verdict, such as penetration is a "fundamental error" and
always results in reversal of a conviction), Sanchez v. State, 182
S.W.3d 34 (Tex.App. - SanAntonio 2005), affirmed209 S.W.3d 34
(Tex.Crim.App. 2006)(same). In this case, the jury charge was unfair
and improper because it was only charged with requiring the State to
22
prove elements [1A] and [IB] of the offense. The indictment contains
the relevant portion of the Jury Charge in this case complainant. These
errors are sometimes called "egregious errors." Courts assess harm from
such errors carefully, and decide whether they: (1) affect the very basis
of the case, (2) deprive the defense of a valuable right [such as having
the jury charged using correct law?], or vitally affect a defensive theory.
Warner v. State, 245 S.W.3d 458, 462 (Tex.Crim.App. 2008). See also
Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App. 201 l)(same) and
Almanazv. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(case
discussing the process for addressing jury charge errors). This analysis
was not performed by the Court of Appeals and trial court. See
Appellant's Brief. These errors cannot be under looked.
A defendant does not have to overcome the possibility that the jury may
have ruled as it did because of the evidence; that is another fool's errand
and contrary to actual law: It is also well established that a conviction
based on circumstantial evidence cannot be sustained if the
circumstances do not exclude every other reasonable hypothesis except
that ofthe guilt ofthe accused, and proof amounting only to a strong
23
suspicion or mere probability is insufficient. Waldon v. State, 579
S.W.2d 499, 502 (Tex.Crim.App. 1979)(emphasis added). Here, there is
a far more reasonable hypothesis about what is purported to have
happened other than guilt - especially in light of the jury's question -
which proves reasonable doubt due to insufficient evidence.
The jury asked the question about scienter regarding the definition of
sexual assault and penetration even though the trial court made no
difference to their direction toward which the case was already moving.
That is, since the jury had already inferred that petitioner intentionally
went to his apartment under a false claim although it was well
established that petitioner had called complainant's mother telling her he
would need to collect his laptop for work as he had been abruptly called
to fill in at work that night; yet, the court was merely curious as to
whether that was something of causal ingredient to the charge. This
makes no sense. Inferring what a jury did must be based on logic, or else
we can just accept whatever our imaginations can dream up as a
"reason" why they did what they did.
24
In that world, sufflciency-of-the-evidence review becomes entirely
meaningless. Juries have wide latitude, but they are not altogether
unrestrained in coming to their decisions. It defies logic to conclude that
the jury did what the Court of Appeals purports it might have done.
Better is to consider the logic behind the jury's question and infer from
that the basis for its question in the first place. When that is done, it is
clear that the jury did not believe petitioner actually did and unlawfully
penetrate the vagina of the complainant. Then, when the trial judge
refused to confirm that scienter was an element of the offense, they
convicted on the single element the charge provided: [1A]
knowledgeable penetration [IB] and force. The charge did not tell the
jury they had to find proof of both elements of the offense, and the trial
court failed to so inform them in response to the jury question. These are
both fundamental, egregious errors that resulted in a conviction for
Sexual assault of a child against a man whom the jury almost-certainly
found had no idea if petitioner actually committed any offence against
our laws at all. Leaving out required elements from the charge is a
fundamental error per Z>/wfa>Mv.State,894S.W.2d330339(Tex.Crim.App.
25
1995), and Evans v. State, 606 S.W.2d 880, 883 (Tex.Crim.App. 1980),
overruled o.g., Woods v. State, 653 S.W.2d (Tex.Crim.App. 1980)("A
jury charge which authorizes a conviction without requiring the jury to
find all of the elements of the offense charged is fundamentally
defective"). See also Sanchez, supra (defendant's conviction for sexual
assault reversed because the charge did not require the jury to find that
the defendant knew.
26
PRAYER FOR RELIEF
Your honors, I humbly pray that his petition be granted and that I get
this wrongful conviction overturned, or that a new trial is granted, and
this unfair conviction be cleared from my record. I have difficulties
thriving and I am in total misery for something that never actually
happened. I have been wronged by my accusers as they set me up and I
humbly implore the court to use insight in this matter and see that there
was no law broken by me neither was any crime committed. I humbly
ask to be vindicated as a result of such findings. It would require the
help of you all as the Honorable Judges of this respectable Court, to see
through the lies perpetrated against me by these people accusing me of
any wrong doing using fabricated evidence against me. I ask again, for
your bravery in standing up, against the injustices that they have done to
me, which have irrevocably changed my life for the worse, more than
they will ever know. The evidence adduced during, trial following its
illegal acquisition by the police on a date not inscribed on the indictment
speculating an alleged assault, directly from a person whom petitioner
27
was dating, and had problems with at the time, in her own house, clothes
which were not being worn by complainant at the time, and complainant
not even present when evidence was being collected, should be ordered
suppressed. The conviction was based on tainted evidence and false
testimony and should be reversed and judgment of acquittal ordered per
Waldon* 579 S.W.2d at 502. The State intentionally suppressed evidence
favorable to petitioner [Ex parte Lewis, 587 S.W.2d 697, 701 (Tex.
Crim. App. 1979)] and knowingly used perjured testimony to secure the
applicant's conviction [Ex parte Adams,768 S.W,2d 281,293 Crim. App.
1989)] Also, the State's pretrial investigative procedure was so
impermissibly suggestive that it created false testimony while
suppressing exculpatory evidence. The error in the jury charge lacking
proof of penetration and perjured testimony cases should be corrected
for all future cases especially in cases where penetration was clearly
doubtful and unfounded as per the CCP 14-27.10 where proof of
penetration and actual sexual assault in such cases is required for any
conviction to be passed. Also where false testimony, tainted evidence
28
and perjury exist, relief and vindication should thrive. Petitioner also
requests such other and further relief as is just.
RESPECTFULLY SUBMITTED:
Ayunwi Meme Fuh
14918 Havenridge dr
Houston Tx 77083
Memefuh400@yahoo.com
PETITIONER
29
CERTIFICATE OF SERVICE OR DELIVERY
I hereby certify that on April 29th, 2015, a copy of the foregoing Petition
for Discretionary Review was served on the following by certified mail,
return receipt requested:
Ayunwi Meme Fuh
14918 Havenridge dr
Houston, Texas 77083
CERTIFICATE OF COMPLIANCE
I hereby certify that this Petition conforms to the requirements of TRAP
9, and consists of 4,499 words per TRAP 9.4(i)(2)(D).
Ayunwi Meme Fuh.
30
IN THE TEXAS
COURT OF CRIMINAL APPEALS
AYUNWI MEME FUH,
Petitioner,
Vs. No. 01-13-00494-CR
THE STATE OF TEXAS,
Respondent.
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APPENDIX -
PETITION FOR DISCRETIONARY REVIEW
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Index:
Court of Appeals Opinion dated April 9, 2015 and Judgment attached
Jury Question and trial court's response pg. 23-26
31
JUDGMENT
Court of gppeate
Jftot Hfetritt of Cexa*
NO. 01-13-00494-CR
AYUNWI MEME FUH, Appellant
. ' V.
THE STATE OF TEXAS, Appellee
Appeal from the 230th District Court ofHarris County. (Tr. Ct. No. 1354773).
This case is an appeal from the final judgment signed by the trial court on June 5,
2013. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered April 9, 2015.
Per curiam opinion delivered by panel consisting of Chief Justice Radack and Justices
Brown and Lloyd.
Opinion issued April 9, 2015
In The
Court of Appeal*
For The
$ ft*t JBtetrttt of Gfexa*
NO. 01-13-00494-CR
AYUNWI MEME FUH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1354773
MEMORANDUM OPINION
A jury convicted appellant Ayunwi Meme Fuh of the offense of sexual
assault of a child under seventeen years of age and assessed punishment at two
years' confinement in TDCJ. See Tex. Penal Code Ann. §§ 22.011(a)(2)(A), 12.33
(West 2011). Appellant timely filed a notice ofappeal.
Appellant's appointed counsel on appeal has filed a motion to withdraw,
along with abrief stating that the record presents no reversible error and 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 ofthe record and supplying us with references to the record and legal
authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d
807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly
reviewed the record and he 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 [lstDist] 2006, no pet).
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and 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) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826-27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
note that an appellant may challenge aholding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Texas 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 Don R. Cantrell must immediately send appellant the
required notice and file acopy of the notice with the Clerk of this Court. See TEX.
R. App. P. 6.5(c). All pending motions are dismissed as moot.
PER CURIAM
Panel consists of ChiefJustice Radack and Justices Brown and Lloyd.
Do not publish. Tex. R. App. P. 47.2(b).
Appointed counsel still has aduty 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