Jorge Montenegro v. The State of Texas--Appeal from 176th District Court of Harris County

Opinion issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00082-CR

JORGE MONTENEGRO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1027513

MEMORANDUM OPINION

A jury found appellant, Jorge Montenegro, guilty of sexual assault of a child, and, appellant, having pleaded true to the enhancement paragraphs alleging prior felony convictions for assault on a peace officer and assault-second offender-family violence, was sentenced to 33 years' confinement. See Tex. Pen. Code Ann. 22.011(a)(2) (Vernon 2003). Appellant's court-appointed counsel has filed an Anders (1) brief, stating that he found no arguable points of error to raise on appeal and moving to withdraw as counsel. Appellant's pro se response challenges counsel's recommendation. We hold that the appeal is wholly frivolous and that no reversible error exists.

Background

The indictment in the instant case alleges that appellant "unlawfully, intentionally and knowingly cause[d] the penetration of the FEMALE SEXUAL ORGAN of [L.P.], hereinafter called the Complainant, a person younger than seventeen years of age and not his spouse by placing HIS SEXUAL ORGAN in the FEMALE SEXUAL ORGAN of the Complainant."

L.P., the 14-year-old complainant, testified that she first met the 25-year-old appellant while she was at the mall with her cousin. Despite her real age, the complainant initially told appellant that she was 17 years' old. The complainant further testified that, three weeks after they met, she and appellant had sexual intercourse. The complainant indicated that, during intercourse, "[appellant's] penis was in [her] vagina." The two were subsequently involved in a relationship for a period of at least three months, during which time, according to the complainant's testimony, they engaged in consensual sexual intercourse on more than four occasions.

The complainant's mother, Amanda Pace, disapproved of her daughter's relationship with appellant. Pace testified that, upon first meeting appellant, she informed him that the complainant was only 14 years' old and asked him not to contact the complainant. She further testified that she told the complainant that, because she believed appellant was too old to be talking to a 14-year-old, the complainant was not to see him. Despite Pace's attempts to end the relationship, the complainant and appellant maintained contact. When she discovered that the complainant was skipping school with appellant, Pace got the police and school officials involved.

On May 18, 2005, the complainant did not return home from school, and Pace again contacted police. Believing that the complainant had run away with appellant, the police located appellant's apartment and knocked on the door. The complainant answered the door wearing only a t-shirt and her underwear. She informed police that appellant had stepped out of the apartment to get something from the vending machines. When appellant returned, police obtained consent to search the apartment, where they found marijuana, a camera, pornography, and condoms.

In a tape-recorded statement, taken by police at his apartment, appellant admitted to having sexual intercourse with the complainant on more than one occasion. Specifically, he stated that he and the complainant had engaged in sexual intercourse shortly before the police arrived and that, at that time, he believed the complainant to be 15 years' old. He alleged that he and the complainant were in love, but that the relationship was made difficult by the tension between appellant and the complainant's mother. He also indicated that he was unaware that the complainant had run away from home and believed the complainant when she told him that her mother approved and would pick her up from the apartment later.

Discussion

The appellate brief submitted by appellant's court-appointed counsel states that, in his professional opinion, there are no arguable grounds for reversal on appeal and, as a result, any appeal would 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. (2) Id.

When an Anders brief and a pro se response are filed in this Court, we are presented with two options. Onofre v. State, 193 S.W.3d 148, 149 (Tex. App.--Houston [1st Dist.] 2006, no pet.). After reviewing the entire record, we may determine (1) that the appeal is wholly frivolous and issue an opinion affirming the trial court's judgment and explaining that we have found no reversible error or (2) that there are arguable grounds for appeal and remand the cause to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Mitchell v. State, 193 S.W.3d 153, 156 (Tex. App.--Houston [1st Dist.] 2006, no pet.). If we determine that there are arguable grounds for appeal, we do not rule on the ultimate merits of those issues. Mitchell, 193 S.W.3d at 156. Rather, appellant is entitled to have new counsel appointed to address the merits of the issues raised. Id.

In accordance with Anders, 386 U.S. at 744-45, 87 S. Ct. at 1400 and Bledsoe, 178 S.W.3d at 826-27, we have reviewed the record, counsel's Anders brief, and appellant's pro se response. We conclude that the appeal is wholly frivolous and that no reversible error exists.

Conclusion

We affirm the judgment of the trial court and grant counsel's motion to withdraw. (3)

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

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

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