Kelley v. State

Full title: ANTHONY ERVIN KELLEY, Appellants v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Sep 17, 2009

Nos. 01-08-00142-CR, 01-08-00143-CR (Tex. App. Sep. 17, 2009)

Opinion

Nos. 01-08-00142-CR, 01-08-00143-CR.

Opinion Issued September 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).

On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause Nos. 1128200 and 1133167.

Panel consists of Justices KEYES, ALCALA, and HANKS.

MEMORANDUM OPINION

ELSA ALCALA, Justice.

Appellant, Anthony Ervin Kelley, appeals from judgments that each sentence him to 10 years in prison for the offenses of online solicitation of a minor and possession of child pornography. See Tex. Penal Code Ann. § 33.021 (Vernon 2008), § 43.26 (Vernon 2003). Appellant pleaded guilty to the offenses and was sentenced by the court following the preparation of a pre-sentence investigation (PSI) report. Appellant's court-appointed counsel has filed an Anders briefs in which he states that no valid grounds for appeal exist and that appellant's appeals are frivolous. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant makes three assertions in his pro se response. First, he claims that his plea of guilty was involuntary and he was given a longer punishment due to ineffective assistance of trial counsel. Second, appellant argues that the trial judge was biased because the judge's daughter's first name was similar to the first name of the complainant and purportedly did not read letters supplied by appellant. Third, appellant states that errors were made in the content and in the production of the PSI report, which also unfairly lengthened his sentence. We conclude no reversible error exists and affirm.

Background

In the first half of 2007, appellant moderated an online chat room entitled "family sex." There appellant began a series of sexually explicit chats with cyber-crimes investigator Detective Ackley, who represented himself to be a 13-year-old girl. In August 2007, a search was conducted of appellant's home and his computer was found to contain images of child pornography. Appellant pleaded guilty to the felony offenses of online solicitation of a minor and possession of child pornography without an agreed recommendation as to punishment. Appellant and his attorney signed written admonishments that appellant was knowingly and voluntarily agreeing to plead guilty. The trial court ordered the preparation of a PSI report. In his pleas of guilty, appellant waived his right to appeal. Additionally, in each case, appellant signed admonishments stating, "I understand the offense I am charged with . . . and I am entering this plea freely and voluntarily, in the exercise of my own good judgment." In written admonishments by the court, appellant signed his initials to the following statements:

I have freely, knowingly, and voluntarily executed this statement in open court . . . with the consent of and approval of my counsel. . . . I waive my right against self-incrimination. . . . I am fully satisfied with the services rendered me by my attorney, and believe he has represented me ably, conscientiously, and to the best of his ability. . . .

The trial court found appellant's plea was freely and voluntarily made. After accepting appellant's pleas of guilty, the trial court recessed the case for a sentencing hearing to be conducted two months later. At the sentencing hearing, the State called one witness, Detective Russell Ackley, who testified that appellant solicited him online while Ackley posed as a 13 year old girl. Ackley described the sexual conversations between himself and appellant, as well as the method Ackley used to discover appellant's identity. Ackley testified that appellant's seized computer contained pornographic images of children. Ackley also testified that the computer recorded the contents of the downloaded images. Appellant testified that he did chat inappropriately with Ackley and apologized for his behavior. The trial court considered the contents of the PSI report, found appellant guilty, and sentenced him to 10 years for each offense to run concurrently. Appellant's court-appointed attorney filed a motion to withdraw as counsel and two briefs in support of that motion. In the briefs, counsel asserts that this appeal is frivolous. Counsel's briefs meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no reversible grounds on appeal and referencing any grounds that might arguably support the appeal. Appellant has filed two pro se responses to assert that his appeal is not frivolous.

Anders Procedure

The brief submitted by appellant's court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, 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. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). The State has waived its opportunity to file an appellee's brief to reply to the arguments presented in appellant's pro se response. When we receive an Anders brief from a defendant's court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court — and not counsel — determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id. If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Bledsoe, 178 S.W.3d at 826-27. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 n. 6. In accordance with Anders and Bledsoe, we have reviewed the record, appellant's appointed counsel's Anders brief, and appellant's pro se response to that brief and conclude that no reversible error exists.

Conclusion

We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.¹