JEROME LOPEZ v. THE STATE OF TEXAS--Appeal from 24th District Court of De Witt County

   NUMBER 13-01-635-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JEROME LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 24th District Court

of De Witt County, Texas.

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

 Before Chief Justice Valdez and Justices Castillo and Garza

   Opinion by Chief Justice Valdez

Appellant, Jerome Lopez, was found guilty of aggravated sexual assault of a child, see Tex. Pen. Code Ann. ' 22.021 (a)(1)(B)(i) (Vernon Supp. 2004-05), and sentenced to ninety-nine years= imprisonment. Appellant now appeals the adjudication of guilt. We affirm the judgment of the trial court.

 Anders Brief

Appellant=s counsel filed an Anders brief with this Court in which she concludes, after careful investigation, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief presents a professional evaluation showing why there is no basis to advance an appeal. See Stafford v. State, 813 S.W.2d 503, 509-10, 510 n.3 (Tex. Crim. App. 1991). We conclude counsel=s brief meets the requirements of Anders. See Anders, 386 U.S. at 744-45; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.BWaco 1994, pet. ref=d) (per curiam).

In the Anders brief, counsel raises two potential issues: (1) the court failed to declare the victim incompetent to testify, and (2) appellant was afforded ineffective assistance of counsel.

We first address appellant=s argument regarding the court=s failure to declare the victim=s (C.M.) testimony inadmissible on the grounds she was incompetent. A child is deemed incompetent to testify if, Aafter being examined by the court, [she] appears not to possess sufficient intellect to relate transactions with respect to which [she] is interrogated.@ See Tex. R. Evid. 601(a)(2). Rule 601(a)(2) Aplaces the power to determine a witness= competency into the hands of the trial judge.@ Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995). A ruling by the trial court on this issue will not be disturbed upon review unless an abuse of discretion is shown. See id.

Appellant took issue with C.M.=s inability to distinguish between the definitions of a truth and a lie. However, when counsel posed a series of hypothetical true and false statements to C.M. in order to determine her level of understanding, her responses demonstrated that she was in fact aware of the concepts of truth and falsity and able to apply these concepts. Appellant also asked C.M. if she knew what an oath was, which she did not. However, as stated in Fields v. State, 500 S.W.2d 500, 502 (Tex. Crim. App. 1973), Aeven though a child states he does not know the meaning of an oath or what it means to swear, he may nevertheless be a competent witness if he knows it is wrong to lie.@ C.M. testified that she knew it would be bad to tell a lie, thereby demonstrating an understanding of the concept. Therefore, we conclude the trial court did not abuse its discretion in finding C.M. competent to testify. This issue is overruled.

Appellant also alleges that there may be error resulting from ineffective assistance of counsel. Appellant argues that his attorney was obligated to object to C.M.=s testimony and preserve the error for appeal. Further, he argues that the proper standard of review to be used for this error should be that of United States v. Cronic, 466 U.S. 648 (1984). Cronic held that ineffective assistance of counsel will be presumed when there exist circumstances that are egregiously prejudicial. See Cronic, 466 U.S. at 658. After a thorough review of the record, we conclude there are no egregiously prejudicial circumstances here. This Court evaluates the effectiveness of counsel in circumstances such as this based on the Strickland standard of review, which is well established and unnecessary to repeat here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Munoz v. State, 24 S.W.3d 427, 433 34 (Tex. App.BCorpus Christi 2000, no pet.) (applying the Strickland standard). As the record shows, appellant=s attorney did object and preserve this potential issue. Before C.M. testified, counsel asked to approach the bench, whereby the jury left the room and the trial court indicated that counsel had an Aobjection or question about the competency of the witness.@ Thereafter, the trial court ruled that C.M. was competent and asked that the jury be brought back in. Counsel=s specific grounds for objecting were apparent from the context and the trial court implicitly ruled on the objection. See Tex. R. App. P. 33.1. Furthermore, there is no other evidence in the record demonstrating any ineffectiveness by counsel.

We agree with counsel and conclude that appellant=s two issues are without merit.

Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988).

In conducting our independent review, we note that appellant filed a pro se motion in which he requested that this Court allow him to present an Aoral@ brief. According to his motion, his poor health as well as a conspiracy against him by various agencies prevents him from filing a written brief. However, we decline to grant this motion, given that we find no exception in the rules of appellate procedure or case law allowing us to consider an Aoral@ brief. Furthermore, we have independently reviewed the entire record and find no meritorious grounds for appeal, which leads us to conclude that an Aoral@ brief would not be helpful or necessary in this case. We conclude that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509.[1] Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

Counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel=s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel=s motion to withdraw and order her to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Concurring Opinion by Justice Castillo.

Memorandum Opinion delivered and filed

this 12th day of January, 2006.

[1]The concurring opinion describes our discussion here as Aconclusory@ and inconsistent with the requirements of Penson v. Ohio, 488 U.S. 75, 80 (1988). We respectfully disagree, and we consider our analysis fully compliant with Penson, Anders, and the decision from the Texas Court of Criminal Appeals in Bledsoe v. State, No. PD-300-04, 2005 Tex. Crim. App. LEXIS 1969, at *10-11 (Tex. Crim. App. Nov. 16, 2005). As the court of criminal appeals stated in its conclusion in Bledsoe:

[T]he court of appeals is not required to review the merits of each claim raised in an Anders brief or a pro se response. The court's duty is to determine whether there are any arguable grounds and if there are, to remand to the trial court so that new counsel may be appointed to brief the issues. . . . Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.

Id. (emphasis added).