Earnest Eugene Palmer v. The State of Texas Appeal from 2nd District Court of Cherokee County (memorandum opinion per curiam)
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NO. 12-16-00130-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS EARNEST EUGENE PALMER, APPELLANT § APPEAL FROM THE 2ND V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Earnest Eugene Palmer appeals his conviction for aggravated sexual assault of an elderly person. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm. BACKGROUND Appellant was indicted for aggravated sexual assault of an elderly person, a first degree felony as alleged.1 Appellant pleaded “guilty” to the offense, and after the trial court properly admonished him and accepted his plea, the matter proceeded to a bench trial on punishment. At the trial, the State offered evidence that Appellant was employed at a nursing home, a coworker witnessed him sexually assault an elderly patient, and he admitted to two other employees that he committed the sexual assault. A sexual assault nurse examiner testified that she examined the victim and discovered trauma to her sexual organ. Appellant offered testimony from several family members and friends that he was of good character. He also offered expert testimony that 1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(C) (West Supp. 2016). he had a low likelihood to reoffend. The trial court sentenced Appellant to fifty years of imprisonment. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel relates that he has reviewed the record and found no error to present for our review. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.2 Thereafter, Appellant filed a pro se brief in which he raised the issue of ineffective assistance of counsel. The State filed a response to Appellant’s brief. Appellant filed a reply brief stating that he learned ineffective assistance claims are usually more appropriately brought as a habeas proceeding instead of a direct appeal, and that he no longer wished to pursue the claim raised in his brief. Consequently, Appellant continued, he expressed a desire to stand on his counsel’s Anders brief and motion to withdraw, and mentioned that he will pursue a separate habeas proceeding to address those issues. We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). CONCLUSION As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw and affirm the judgment of the trial court. Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). 2 2 Should Appellant wish to seek review of the case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf 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 this court’s judgment or the date the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered August 23, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT AUGUST 23, 2017 NO. 12-16-00130-CR EARNEST EUGENE PALMER, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 2nd District Court of Cherokee County, Texas (Tr.Ct.No. 19103) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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