eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2009-11

David Wayne Newsom v. State ( 2009 )


Menu:
 
  •                          COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-268-CR
DAVID WAYNE NEWSOM                                            APPELLANT
V.
THE STATE OF TEXAS                                                 STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
David Wayne Newsom appeals his conviction on two counts of
aggravated sexual assault of a child under fourteen years of age. Newsom
entered an open plea of guilty to both counts. A jury assessed Appellant’s
punishment at eleven years’ confinement in the Correctional Institutions
Division of the Texas Department of Criminal Justice for each of the two
1
 See Tex. R. App. P. 47.4.
counts. The trial court sentenced him accordingly, and ordered the two eleven-
year terms to run consecutively.
Newsom’s court-appointed appellate counsel filed a motion to withdraw
as counsel and a brief in support of that motion. In his motion, counsel avers
that after conducting a professional evaluation of the record, he reached the
conclusion that there are no arguable grounds to advance Appellant’s appeal
and that the appeal is frivolous.       Counsel’s brief and motion meet the
requirements of Anders by presenting a professional evaluation of the record
and demonstrating why there are no arguable grounds for appeal. See Anders
v. California,
    386 U.S. 738
    , 741,
    87 S. Ct. 1396
    , 1400 (1967); In re
Schulman,
    252 S.W.3d 403
    , 406–12 (Tex. Crim. App. 2008). Thereafter, we
gave Appellant an opportunity to file a pro se brief, and Appellant filed a pro se
brief which raises four points.2 The State did not file a reply brief.
As the reviewing court, we must conduct an independent evaluation of
the record to determine whether counsel is correct in concluding that the appeal
is frivolous. See Stafford v. State,
    813 S.W.2d 503
    , 511 (Tex. Crim. App.
1991); Mays v. State,
    904 S.W.2d 920
    , 922–23 (Tex. App.–Fort Worth 1995,
2
 Appellant’s pro se brief raises the following four points of error:
ineffective assistance of counsel, use of testimony by an improper outcry
witness, lack of a pre-sentence investigation report, and cruel and unusual
punishment.
2
no pet.). Only then may we grant counsel’s motion to withdraw. See Penson
v. Ohio,
    488 U.S. 75
    , 82–83,
    109 S. Ct. 346
    , 351 (1988).
We have carefully reviewed counsel’s brief, Appellant’s pro se brief, and
the appellate record. We agree with counsel that this appeal is wholly frivolous
and without merit. We find nothing in the record that might arguably support
any appeal. See Bledsoe v. State,
    178 S.W.3d 824
    , 827–28 (Tex. Crim. App.
2005). Accordingly, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 25, 2009
3