Opinion
05-21-01123-CR
01-30-2024
ROBERT CHAD EUBANK, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-83513-2017.
Before Pedersen, III, Garcia, and Kennedy, Justices.
MEMORANDUM OPINION
BILL PEDERSEN, III, JUSTICE.
A jury found appellant Robert Chad Eubank guilty of aggravated sexual assault of a child and assessed his punishment at confinement for life. Appellant appealed the trial court's judgment, but his court-appointed appellate counsel has filed a motion to withdraw and a brief stating that the appeal is wholly without merit and frivolous. See Anders v. California, 386 U.S. 738 (1967). We affirm the trial court's judgment and grant counsel's motion to withdraw.
Background
Appellant was charged with digitally penetrating the sexual organ of nine-year-old F.G. while she was spending the night with her friend E.E., appellant's daughter. F.G.'s mother (Mother) testified as the outcry witness at trial. She described the years-long friendship between F.G. and E.E., explaining that F.G. spent a great deal of time at appellant's home and felt close to him and to all members of that family. The night of the assault, F.G. returned home and immediately told Mother what had happened. F.G. had fallen asleep while watching television-along with E.E., appellant's wife, and E.E.'s younger sister-in appellant and his wife's bedroom. F.G. awoke to see appellant standing over her. He bent down and began to touch and to rub her vagina, reaching under her clothing and pressing with his finger sufficiently hard to penetrate the organ. F.G. tried to roll away from appellant and to pull covers over herself, but he kept "repositioning her and he continued to move her around, including spreading her legs open." F.G. eventually got away from appellant, saying she needed to use the bathroom; after staying inside the bathroom for some time, she came out, and appellant told her to go upstairs to E.E.'s room.F.G. woke E.E. and told her she was feeling sick and needed to go home. The girls went downstairs and told appellant that; he called F.G.'s home, and-over appellant's protests that he would bring F.G. home-F.G.'s father picked her up and took her home. When they arrived, F.G. told Mother she needed to talk to her, they went into another room, and F.G. told her what had happened. The police were informed, and F.G. was interviewed by a forensic interviewer at the Children's Advocacy Center.
According to F.G., E.E. had been watching television with her in the parents' bedroom, but when F.G. awoke, E.E. was not there. When F.G. went upstairs, E.E. was asleep in her own room.
F.G. testified at trial and recounted the event just as she had earlier told Mother, including the digital penetration of her sexual organ. She also testified to another event-which she had also told Mother about on the night of the assault- when she and E.E. were with appellant in his family's media room watching a movie together. Appellant had begun rubbing E.E.'s feet and legs and asked F.G. "if [she] would like it." She told him no, that she "was okay," she "didn't need it," and she was uncomfortable with that. He told her "no," and "it was okay," so she let him. She described the experience, testifying that "he was going really high like up my body and it made me feel very uncomfortable." He ended up touching her "butt."
Detective Jonathan Johnson, a Wylie police officer at the time of the investigation of F.G.'s claim, testified that his job was to collect and analyze digital evidence that was seized from appellant's residences. Johnson testified at length concerning various programs on appellant's computers that could be used to browse the dark web or to hide the user's activity on the computer. He also described finding "a large number of pornographic images of young children, small children" on appellant's computer. Four of those images were admitted into evidence. Detective Chris Meecham, a Wylie police officer, testified that he had investigated hundreds of child pornography cases and that he would also have flagged the four images as child pornography.
Pursuant to search warrants, police searched both the home where appellant had resided with his family and his parents' home, where he was residing after F.G.'s allegation.
Subsequent testimony acknowledged that approximately 200 such images were identified on the computer.
The defense called its own computer expert, Trent Forbes, who testified further concerning the extractions of appellant's computers. He offered benign reasons that those in the technology industry might use the programs identified by Detective Johnson. And as to the four images in evidence, Forbes testified that because the identity of the people in the pictures was not known, he could not say for certain that the images were of children: they could have been "deep fakes" or adults pretending to be children. Nevertheless, on cross-examination he conceded that he was "surprised that child pornography charges were not filed in this case."
Appellant also testified in his own defense at trial. He denied that he had assaulted F.G. He also denied downloading child pornography on his computer and stated that he had never seen the images police discovered and did not know how they had gotten on the computer. But on cross-examination, he testified that when his wife first told him of F.G.'s allegation and asked if he had done it, he told her "I don't know." Appellant's wife testified on rebuttal and-after watching the video of her interview with police-she confirmed that she had told the detective in that interview that when she confronted appellant with F.G.'s allegation, he told her: "I don't know if I did it or not."
The State presented a second rebuttal witness, A.D., who testified that she had been a friend of appellant's younger daughter when she was eight or nine. She stated that twice when she was spending the night at appellant's home, she woke to appellant's touching her inappropriately-once placing his hand between the cheeks of her butt, and once rubbing his hand back and forth under her pajamas along the top of her underwear. Both times, A.D. told appellant's wife she wanted to go home, and his wife took her home. A.D. did not return to appellant's house after the second incident.
The jury found appellant guilty of aggravated sexual assault of a child and assessed appellant's punishment at life in prison. This appeal followed.
The Anders Brief
In this Court, appellant's attorney has filed a brief in which she concludes the appeal is wholly frivolous and without merit. She begins by identifying two potentially arguable issues and explaining thoroughly why they are not actually arguable in this case. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978) (requiring an Anders brief to refer the court "to anything in this cold record which might arguably support the appeal").
Extraneous Evidence:
The trial court admitted a number of different categories of extraneous evidence in this case, including child pornography, various programs found on appellant's computers, testimony from the complaining witness about an uncharged offense, and testimony from an extraneous victim. However, counsel describes how the trial court followed all statutory requirements for admission of such evidence in a case involving sexual abuse of a child. See Tex. Code. Crim. Proc. Ann. art. 38.37. The court also considered and overruled appellant's rule 403 objections to this evidence. Tex. R. Evid. 403.
Sufficiency of the Evidence of Appellant's Guilt.
Counsel properly identifies the elements of the offense charged and the standard the State must meet to prove those elements by sufficient evidence. She then describes the complaining witness's testimony at trial and explains how this testimony alone allowed the State to meet its evidentiary burden. See Crim. Proc. art. 38.07.
The remainder of the Anders brief explains why no other aspects of appellant's trial provide an arguable issue for our review. Counsel delivered a copy of the brief to appellant and notified him of his right to file a pro se response. We also advised appellant of his right to file a pro se response, and appellant did file a response, which we have carefully reviewed.
We have also carefully reviewed the entire trial record. We agree with appellant's counsel that the only potentially arguable appellate issues-the sufficiency of the evidence to prove appellant's guilt and the admission of extraneous evidence against him-are not, in fact, arguable issues for appeal in this case. We conclude that counsel's brief meets the requirements of Anders v. California. It presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High, 573 S.W.2d 807 at 812 (determining whether brief meets requirements of Anders).
Conclusion
Given our review of the record, counsel's brief, and appellant's pro se response, we agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably and substantively support the appeal of the trial court's judgment. Accordingly, we affirm the trial court's judgment and grant counsel's motion to withdraw.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.