Opinion
No. 10-07-00324-CV
Opinion delivered and filed August 6, 2008.
Appealed from the County Court at Law, Coryell County, Texas, Trial Court No. JV-07-1945.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Chief Justice Gray concurs in the judgment which affirms K.M.C.'s adjudication. A separate opinion will not issue.)
MEMORANDUM OPINION
K.M.C. appeals the trial court's order adjudicating him delinquent by committing the offense of aggravated sexual assault of a child and the court's disposition order placing him in the Texas Youth Commission for a period of seven years with a possible transfer to the Texas Department of Criminal Justice. K.M.C.'s appellate counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see also In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) ( Anders procedures apply to juvenile proceedings). Although provided a copy of counsel's brief and informed of the right to do so, neither K.M.C. nor his father filed a pro se brief on his behalf. See In re M.A.D., 167 S.W.3d 938, 939 (Tex.App.-Waco 2005, order) (per curiam).
In an Anders case, we "always conduct an independent review of the record to determine whether there are any arguable grounds for appeal." Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex.App.-Waco 2006, no pet.) (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991)). "[I]f counsel in an Anders brief or the appellant in a pro se response points out a potential issue, we must determine whether it is arguable or frivolous." Id. at 242. If "arguable grounds" exist, we must "remand the cause to the trial court so that new counsel may be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005); see Villanueva, 209 S.W.3d at 243.
Counsel's brief states that counsel reviewed the record for issues of arguable merit, but determined that the appeal is frivolous and without merit. Counsel did not identify any potential issues for our review.
Our independent review of the record reveals that the trial court made the appropriate findings and advised K.M.C. of his rights in compliance with the Family Code, at both the adjudication and disposition hearings. See TEX. FAM. CODE ANN. § 54.03 (Vernon Supp. 2007); see also TEX. FAM. CODE ANN. § 54.04 (Vernon Supp. 2007). The child victim testified that K.M.C. made him "suck his wiener" and that it had happened before. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 2005) (uncorroborated testimony of the child victim alone is sufficient to establish aggravated sexual assault); see also In re A.B., 162 S.W.3d 598, 601 (Tex.App.-El Paso 2005, no pet.) (same). The record contains several objections lodged by K.M.C., none of which give rise to any issues of arguable merit. Moreover, K.M.C.'s sentence is within the applicable punishment range for the charged offense. See TEX. PEN. CODE ANN. § 12.32(a) (Vernon 2003) (punishment for first degree felony is five to ninety-nine years or life in prison).
Chapter 38 of the Code of Criminal Procedure generally applies in juvenile delinquency proceedings. See TEX. FAM. CODE ANN. § 51.17(c) (Vernon Supp. 2007).
However, the record does not show that the trial court advised K.M.C. of the sealing procedures for the record in accordance with section 54.04(h)(2). See TEX. FAM. CODE ANN. § 54.04(h)(2). Such error is harmless. See In re J.L.R., No. 04-99-00217-CV, 2000 Tex. App. Lexis 2523, at *9 (Tex.App.-San Antonio April 19, 2000, no pet.) (not designated for publication) (failure to advise the juvenile of sealing procedures could not have caused the rendition of an improper judgment or prevented the juvenile from presenting a case on appeal). Neither does the trial court's order contain K.M.C.'s thumbprint as required by section 54.04(j). See TEX. FAM. CODE ANN. § 54.04(j) ("If the court or jury found that the child engaged in delinquent conduct that included a violation of a penal law of the grade of felony or jailable misdemeanor, the court. . . shall require that the child's thumbprint be affixed or attached to the order"). Because this is a clerical error that may be remedied by a modified judgment, the trial court is ordered to modify the judgment to include K.M.C.'s thumbprint. See In re R.W.G., No. 2-02-083-CV, 2003 Tex. App. Lexis 2653, at *7-8 (Tex.App.-Fort Worth March 27, 2003, no pet.) (mem. op.) (In Anders appeal, trial court ordered to modify judgment to affix the juvenile's thumbprint).
Accordingly, we agree with counsel that K.M.C.'s appeal presents no issues of arguable merit. We affirm the judgment subject to modification of the order.
Counsel must send K.M.C. and his father a copy of our decision, at their last known addresses, and notify them of the right to file a pro se petition for discretionary review. See Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.Crim.App. 2006); Villanueva, 209 S.W.3d at 249; see also TEX. R. APP. P. 53. We grant counsel's motion to withdraw, effective upon counsel's compliance with the aforementioned notification requirement as evidenced by "a letter [to this Court] certifying compliance." See Meza v. State, 206 S.W.3d 684, 689 n. 23 (Tex.Crim.App. 2006); see also Villanueva, 209 S.W.3d at 249.