Danny Wayne Harper v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2009
• Docket: 03-08-00643-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00643-CR

Danny Wayne Harper, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT NO. 33135, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Danny Wayne Harper pleaded guilty to the offense of injury to a child. See

Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2008). A jury assessed punishment at ten years’

imprisonment.

The jury heard evidence during punishment about the circumstances surrounding

the commission of the offense. The victim was C.W.H., Harper’s three-month-old son. On April 8,

2006, Harper and his wife brought C.W.H. to the hospital. According to Debra Jo Pennington, a

radiologist who had examined X-rays of the infant, C.W.H. had suffered over 20 fractures in his

rib cage. Pennington testified, “I’ve never even seen this extensive an injury even in a high-speed

motor vehicle accident.” Pennington also observed “breaks in the bones that were of different ages”

that led her to believe “that this was a case of abusive injury.” Because of the seriousness of C.W.H.’s injuries, Child Protective Services became

involved. Caseworker Jeanie Cole testified that she went to the hospital and spoke with Harper.

According to Cole, Harper told her that “he had tripped over [C.W.H.’s sister] while he was carrying

[C.W.H.] and had fallen on [C.W.H.].” Harper was later interviewed by Officer Paul Nelson of

the Burnet Police Department. Nelson testified that, when he first spoke to Harper at the hospital,

Harper repeated his story about falling on top of C.W.H. Nelson then asked Harper to follow him

to the police department. Once there, Nelson proceeded to formally interview Harper. Harper’s

interview with Nelson was recorded, and a redacted transcript of the interview was admitted into

evidence. During the interview, Harper told Nelson that he had become “aggravated” with C.W.H.

and “just started squeezing” him until he heard “a pop on his back.” Harper then became scared and

tried to comfort C.W.H. until the infant fell asleep. Harper told Nelson that, “an hour or two hours

later,” C.W.H. “woke up crying.” Harper went on to explain to Nelson that it was his wife who had

called the hospital after she noticed bruising on C.W.H.

Harper’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S.

75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684

(Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous

v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Harper received a copy of counsel’s brief and

2 was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief

has been filed.

We have reviewed the record and counsel’s brief and agree that the appeal is frivolous

and without merit. We find nothing in the record that might arguably support the appeal. Counsel’s

motion to withdraw is granted.

The judgment of conviction is affirmed.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: August 26, 2009

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