Ionescu, Bogdan Stefan v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Memorandum Opinion filed May 12, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00645-CR

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BOGDAN STEFAN IONESCU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 953,568

M E M O R A N D U M O P I N I O N

After a bench trial, appellant was convicted of indecency with a child. On June 11, 2004, the trial court sentenced appellant to confinement for five years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a written notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record. Appellant filed a pro se response in which he argues that the indictment was defective, the evidence was factually insufficient, and he received ineffective assistance of trial and appellate counsel.

First, appellant does not specify why he believes the indictment was defective. The indictment, for indecency with a child, adequately tracks the appropriate language of section 21.11(a)(2) of the penal code. See Gemoets v. State, 116 S.W.3d 59, 72 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

Second, appellant complains that the evidence to support his conviction is factually insufficient, arguing specifically that there was no evidence of a culpable mental state and that two witnesses= testimony was inconsistent. However, the record shows factually sufficient evidence to support each element of the indictment: that the complainant was three months old and not appellant=s spouse; that most of appellant=s erect penis was visible outside his pants as he stooped before the baby; that appellant had one hand inside his pants and one hand on the baby=s shoulder; and that the incident occurred in Harris County. Although appellant testified that he was not aroused and accidently revealed part of his penis, the judge, as fact finder, could choose to believe or disbelieve any portion of the witnesses= testimony. See Herrero v. State, 124 S.W.3d 827, 834 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Similarly, although two other witnesses= testimony may have conflicted in some aspects, reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). We will not reverse a conviction merely because the fact finder resolved a conflict in evidence against appellant. See Herrero, 124 S.W.3d at 834. We hold there is factually sufficient evidence to support the conviction.

Third, appellant argues that his trial and appellate attorneys provided ineffective assistance of counsel. In the Anders brief, appellate counsel ably argued that certain actions by trial counsel were questionable, such as failing to seek probation; failing to address appellant=s limitations from a serious head injury; and confusing the elements of indecency with a child. Appellant further argues that trial counsel failed to file more pre-trial motions; permitted appellant to waive trial by jury; permitted hearsay testimony (to which counsel actually did object); failed to object to leading questions; and failed to clarify conflicting testimony. However, it is essential that harm or prejudice caused by trial counsel's conduct or omission be firmly grounded in the record. Prejean v. State, 32 S.W.3d 409, 411 (Tex. App.CHouston [14th Dist.] 2000, pet. ). Appellate counsel correctly pointed out that on the record before this court, this court must assume that trial counsel had a plausible reason for his actions. See Safari v. State, 961 S.W.2d 437, 445 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). Appellant argues that his appellate counsel was ineffective because (1) he evinced Aoverall apathy@ and (2) appellant believes him to be in collusion with trial counsel. These allegations are not grounded in the record; there is no proof that appellate counsel provided ineffective assistance.

Finally, through most of his pro se argument, appellant focuses on the trial court=s belief that appellant was ineligible for probation as the court orally assessed punishment. However, the record reflects that the trial court subsequently clarified that the offense did not preclude probation. Nonetheless, the trial court did not change the sentence assessed. Appellant does not offer any authority that the trial court=s actions are reversible error.

We agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. A further discussion of the brief would add nothing to the jurisprudence of the State.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 12, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).