Edgar L. Kidd, Jr. v. The State of Texas--Appeal from 5th District Court of Cass County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00193-CR
______________________________
EDGAR LEE KIDD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fifth Judicial District Court
Cass County, Texas
Trial Court No. 2006F00029
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

On January 6, 2006, Officer John Garrett received a call reporting the sexual assault of thirteen-year-old A.H. On arrival, Garrett found that a crowd had gathered and was threatening Edgar Lee Kidd, Jr. Garrett arrested Kidd and took him to the Cass County jail; the victim, A.H., was taken to Atlanta Memorial Hospital, where he was examined by a sexual assault nurse examiner (S.A.N.E.).

Garrett provided Kidd his Miranda (1) warnings, and Kidd initially denied any misconduct. Kidd then provided a statement in which he indicated that A.H. came into the room with Kidd, got into bed with him, pulled down Kidd's shorts, and began engaging in oral sex. Kidd went on to say that he then performed oral sex on A.H. and unsuccessfully attempted to engage in anal sex with him, with the encounter continuing for approximately thirty minutes. Kidd stated that he did masturbate and ejaculate, getting semen on A.H.'s nose, but he did not believe A.H. ejaculated. A hearing was held on Kidd's motion to suppress this statement. At that hearing, Kidd testified he was under the influence of cocaine, was tired and had had no sleep, and was angry because charges had been filed against him. He further testified that he was not beaten, threatened, or promised anything in return for his statement and that he remembered his rights being read to him. The trial court found the statement voluntary, and it was part of the evidence at trial.

At trial, A.H. testified that he was in the ninth grade and that this event occurred January 6, 2006, in Cass County. He testified he had gotten off the school bus and gone to Kidd's house, where A.H. watched a television show with his aunt. At some point in the evening, Kidd requested that A.H. come to Kidd's room to help him move a bed. A.H. testified Kidd came up behind him, pushed him on the bed, pulled down his shorts, then pulled down his own shorts, and "put his private part inside my back part."

Garrett is an investigator for the Cass County sheriff's office and has specialized in sexual assault investigations for a little over four years, receiving specialized training annually. He testified there were no DNA matches on the sheets or the other eleven items he sent to the crime laboratory for analysis. He did testify there was semen found in A.H.'s nose, but not enough DNA was present to match it with any specific individual.

Karel Wardlow, the S.A.N.E., testified that she examined A.H. in January 2006 and that A.H. told her he had been orally and anally assaulted. Wardlow examined A.H. using a rape kit. She also drew blood, swabbed his mouth, pulled hair, pubic hair, and swabbed areas where there might have been penetration. A colposcope examination was performed and photographs were taken. Two abrasions can be seen, as well as injuries to A.H.'s anus, in the pictures. Wardlow testified that, based on her education, training, and experience, she felt the victim was sexually assaulted.

Kidd now appeals from his jury conviction of aggravated sexual assault of a child. See Tex. Penal Code Ann. 22.021 (Vernon Supp. 2006). A finding of true was also made to the enhancement paragraph of the indictment. The trial court sentenced Kidd to life imprisonment. Kidd was represented by appointed counsel at trial and by different appointed counsel on appeal. Kidd's appellate attorney has filed a brief in which she concludes that, after a review of the record and the related law, the appeal is frivolous and without merit.

Appellate counsel summarizes the trial in her brief and states that she has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances two arguable grounds for review involving the suppression of Kidd's statement and the sufficiency of the evidence. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Kidd on March 28, 2007, informing Kidd of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. This Court notified Kidd that any pro se response was due on or before April 30, 2007. Kidd has neither filed a response, nor has he requested an extension of time in which to file such a response.

We have reviewed the possible issues raised by counsel in her appellate brief, and we agree with her assessment that no reversible error exists. Our independent review of the record has not revealed any error. (2)

We affirm the judgment of the trial court.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: May 29, 2007

Date Decided: May 30, 2007

 

Do Not Publish

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Kidd in this case. No substitute counsel will be appointed. Should Kidd wish to seek further review of this case by the Texas Court of Criminal Appeals, Kidd must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. 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.