Donovan Ray Cubit v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

DONOVAN RAY CUBIT, § No. 08-22-00142-CR

Appellant, § Appeal from the

v. § 421st District Court

THE STATE OF TEXAS, § of Caldwell County, Texas

Appellee. § (TC# 19-283)

MEMORANDUM OPINION

Appellant challenges his conviction of three counts of aggravated sexual assault of a child.

TEX. PENAL CODE ANN. § 22.021. For the reasons that follow, we affirm.

Appellant was charged with eight counts of aggravated sexual assault of a child in a petition

alleging delinquent conduct. A grand jury found probable cause existed and Appellant was indicted

thereafter. Four of the eight counts were ultimately consolidated and following certification as an

adult and transfer to district court, Appellant was charged with the remaining four counts of

aggravated sexual assault of a child. The State abandoned the first count and the jury convicted

Appellant of counts two through four. Punishment was assessed at thirty-five years confinement in the Texas Department of Criminal Justice Correctional Institutional Division. This appeal

followed. 1

On appeal, Appellant’s counsel has filed an Anders brief. See Anders v. California, 386

U.S. 738, 744 (1967); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). In Anders, the

United States Supreme Court recognized that counsel, who had been appointed to represent the

appellant in an appeal from a criminal conviction, had no duty to pursue a frivolous matter on

appeal. Anders, 386 U.S. at 744. As such, counsel was permitted to withdraw after informing the

court of his conclusion and efforts made in arriving at that conclusion. Id.

Here, Appellant’s counsel has filed a motion to withdraw as counsel along with a brief

concluding the appeal is frivolous and without merit. The brief satisfies the requirements of Anders

v. California by presenting a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced on appeal. Id. As required by the Texas Court of Criminal

Appeals, Appellant’s counsel has certified to this Court that he has provided copies of the motion

and brief to Appellant, advised Appellant of his right to examine the appellate record and file a pro

se response, notified Appellant of his right to seek discretionary review should we find his appeal

frivolous, provided a motion to assist Appellant in obtaining the record, and supplied Appellant

with this Court’s mailing address. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App.

2014); see also Anders, 386 U.S. at 744.

We have thoroughly reviewed the record, along with the Anders brief, and we agree with

counsel’s professional assessment that the record does not present any meritorious grounds for

review. Accordingly, we find the appeal frivolous.

1 This case was transferred from the Third Court of Appeals District, Austin, Texas pursuant to the Texas Supreme Court’s docket equalization efforts. See TEX. GOV’T CODE ANN. section 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our own. See TEX. R. APP. P. 41.3.

2 We affirm the trial court’s judgment and grant counsel’s motion to withdraw.

YVONNE T. RODRIGUEZ, Chief Justice

May 31, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)