Gerry Lessel Dock, Jr. v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01206-CR

GERRY LESSEL DOCK JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 45,174

MEMORANDUM OPINION

Appellant, Gerry Lessel Dock, appeals from the trial court s judgment that convicted him for the second-degree felony of sexual assault of a child. See Tex. Pen. Code Ann. 22.011 (Vernon 2006). Appellant pleaded guilty for punishment to be determined by the jury. The jury assessed punishment at 20 years confinement, the maximum amount of imprisonment allowed for the second-degree felony. Appellant s counsel on appeal has submitted a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal on appeal. See Anders v. Cal., 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response brief. Appellant contends that (1) the trial court erred by admitting into evidence his written statement given to police against him; (2) the State did not provide the required notice of its intent to introduce extraneous acts into evidence; (3) his right to a speedy trial was violated; (4) the trial court erred by not allowing his attorney to cross-examine complainant concerning a juvenile adjudication of guilt; (5) the evidence was insufficient to establish his guilt beyond a reasonable doubt; (6) the trial court erred in admitting a tape recording that contained appellant s admission to having sex with complainant; and (7) his appointed trial counsel rendered ineffective assistance of counsel. We affirm appellant s conviction.

Background

Complainant is appellant s daughter. In January 2002, the 15-year-old complainant moved to Pearland, Texas to live with appellant, whom she had not seen in six years. Complainant enjoyed living with appellant for the first month or so, but in February 2002, things changed. Appellant and complainant were drinking away from their home, and complainant became intoxicated. Complainant remembered getting into appellant s car, but does not remember anything else until the next morning, when she woke up in appellant s bed. Neither complainant nor appellant were clothed.

After that incident, complainant felt like she stopped being a daughter and started being a girlfriend. She had to cook and clean, and anything sexual that appellant wanted, she had to give it to him. Appellant had oral sex and intercourse with complainant, who did not resist and just allowed it. Incidents of sexual contact occurred between complainant and appellant [a]lmost every day.

In December 2002 the incidents stopped, but by May 2003 complainant feared that they would begin again because appellant began making sexual comments to her again. Complainant told a neighbor about her concerns. The neighbor suggested that she tape record appellant to corroborate her story. In May 2003, complainant hid a tape recorder in her pants and during an argument with appellant was able to record him admitting his conduct. She went to the neighbor s house and left the tape and recorder with the neighbor. The neighbor called the police to report appellant. The detective who responded to the neighbor s call spoke with appellant. Appellant gave the detective a written statement admitting that he engaged in sexual activity with complainant. Appellant, however, stated that there were only four or five incidents of sexual activity, denying that it occurred every day, as complainant asserted. Appellant also asserted that complainant consented to the sexual activity.

Anders Procedure

The brief submitted by appellant s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. The State filed an appellee s brief stating that it agreed with appellant s counsel s opinion that there are no arguable grounds for appeal in this case and that it would not file a reply to that brief.

When this Court receives an Anders brief from an appellant s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. 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 case is wholly frivolous ); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (quoting same passage from Anders). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826 28 (Tex. Crim. App. 2005).

Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised. Id.

If, on the other hand, we determine from our independent review of the entire record that the appeal is wholly frivolous, we may affirm the trial court s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826, 828. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.

In accordance with Anders, 386 U.S. at 744 45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826 28, we have reviewed the record, appellant s appointed counsel s Anders brief, and appellant s pro se response to that brief, and conclude that no reversible error exists.

Conclusion

We affirm the judgment of the trial court and grant appointed counsel s motion to withdraw. //

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).