Opinion
No. 13-02-625-CR.
Opinion delivered and filed April 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 377th District Court of Victoria County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
MEMORANDUM OPINION
Appellant, Mario Rodriguez, appeals from his conviction for the offense of aggravated sexual assault. We affirm. Appellant waived his right to a jury trial and pled guilty to an indictment alleging aggravated sexual assault. The trial court sentenced appellant to thirty years imprisonment and a fine of $1,000. Appellant filed a motion for new trial, which was denied, and a notice of appeal within thirty days of sentencing. The trial court certified that the case is not a plea-bargain case and the defendant has the right to appeal. Tex.R.App.P. 25.2(a). On March 25, 2003, appellant's attorney filed a brief with this court asserting that there was no basis for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certifies that he has reviewed the record and concluded that appellant lacks any meritorious grounds to challenge the sentence of the trial court and that any appeal from the trial court's decision would be wholly frivolous. See id. Counsel also requested permission to withdraw from representation of appellant. This Court, in an order dated May 20, 2003, abated the appeal to permit appellant's counsel to notify appellant of his right to review the record and his right to file a pro se brief, if desired. See McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975). On May 22, 2003, appellant's counsel notified appellant as requested. Over thirty days have passed and no pro se brief has been filed with this Court. Because this Court has only received counsel's "frivolous appeal" brief and has no brief from appellant, we must independently conduct a full examination of the record to determine whether the case is indeed frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988); Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Counsel for appellant raised, as is required, any issue that may arguably support appellant's appeal. Anders, 386 U.S. at 744; Williams v. State, 976 S.W.2d 871, 872 (Tex. App.-Corpus Christi 1998, no pet.). The only possible issue for appeal noted by counsel in his brief is whether the trial court erred in admitting the testimony of two witnesses, the victim's mother and former counselor, during the hearing to determine punishment. Both witnesses were asked by the State whether the proper punishment for appellant was probation or imprisonment. Appellant objected to the question only when it was asked of the victim's former counselor. Both witnesses answered that probation would not be adequate and imprisonment was proper. Under Texas law, a witness may not recommend a particular punishment to the jury. Tex. R. Evid. 701; Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex.Crim.App. 1989); Hughes v. State, 787 S.W.2d 193, 196 (Tex. App.-Corpus Christi 1990, pet. ref'd). This rule was developed in response to the belief that such testimony would only tend to confuse the jury. Sattiewhite, 786 S.W.2d at 291. Only if the trial court allows testimony recommending a specific punishment, the appellate court reviews the trial court's decision for error under an abuse of discretion standard pursuant to the rules of evidence. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App. 1990) (op. on reh'g); Fryer v. State, 993 S.W.2d 385, 389 (Tex. App.-Fort Worth 1999), aff'd, 68 S.W.3d 628 (Tex.Crim.App. 2002). The appellate court must give great deference to the trial court's decision to admit or exclude testimony and must uphold the trial court's decision so long as it was not acting arbitrarily or capriciously. Montgomery, 810 S.W.2d at 391. We note that this testimony was elicited at a punishment hearing before a judge, after appellant had already pled guilty. Thus, the reasoning that underlies the rule against witness testimony recommending punishment, i.e., jury confusion, is not a factor here. Appellant failed to object at trial to the testimony from the victim's mother regarding punishment, thereby waiving any potential complaint on appeal. Tex.R.App.P. 33.1(a); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). An objection was made to similar testimony from the victim's former counselor, which served to preserve the issue for appeal. However, upon reviewing the entire record, we find that the impact of any error was mitigated by the cross-examination of this witness. The counselor during cross-examination admitted that she felt no sex offender should ever be considered for probation under any circumstances, thus indicating to the trial court that her opinion on punishment was entirely unrelated to the facts of the case. Because this erroneous admission of witness testimony occurred at the punishment phase, before a judge, rather than a jury, we defer to the ability of the trial court to appropriately weigh and consider such testimony. As the statement was followed by effective cross-examination, we also find that it was not necessarily determinative to the ultimate decision reached by the judge. After reviewing the remainder of the record ourselves, in accordance with Penson, 488 U.S. at 80, we are unable to identify any additional grounds for appeal. We therefore conclude that appellant's appeal in this case is wholly frivolous and we AFFIRM the judgment of the trial court.