Dunstan Tamba Davis v. State

• Court: Court of Appeals of Texas
• Decided: October 16, 2008
• Docket: 08-07-00195-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ DUNSTAN TAMBA DAVIS, No. 08-07-00195-CR § Appellant, Appeal from the § V. Criminal District Court No. 1 § THE STATE OF TEXAS, of Tarrant County, Texas § Appellee. (TC# 1040902D) §

§

MEMORANDUM OPINION

Dunstan Tamba Davis appeals a judgment convicting him of sexual assault of a child

under 17 years of age. Appellant’s was convicted by a Tarrant County jury on June 6, 2007.

Appellant was sentenced to 10 years imprisonment. Appellant’s court appointed counsel has

filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The

brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d

493, reh. denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), by presenting a

professional evaluation of the record demonstrating why, in effect, there are no arguable grounds

to be advanced. See 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). A copy of counsel’s brief has been

delivered to Appellant, and Appellant has not exercised his right to file a pro se brief. Although

counsel states that following a professional evaluation the record does not contain reversible error, counsel has proposed two arguable issues for review.

The arguable issues presented in the Appellant’s brief are: (1) whether the evidence is

factually insufficient to prove beyond a reasonable doubt that Appellant knew the victim was

under 17 years old at the time of the offense; and (2) whether the trial court erred by allowing the

prosecution to refer to the complaining witness as the “victim” during trial.

Appellant was convicted by a jury of the sexual assault of a child under 17 years of age.

TEX .PENAL CODE ANN . § 22.011(a)(2)(A)(Vernon Supp. 2008). As Appellant’s counsel

acknowledges in his brief, under current case law, the prosecution is not required to prove that

the defendant knew the victim’s age under Section 22.011. See Grice v. State, 162 S.W.3d 641,

646 (Tex.App.--Houston [14th Dist.] 2005, pet. ref’d); citing Vasquez v. State, 622 S.W.2d 864,

865 (Tex.Crim.App. 1981). The defendant’s ignorance of the victim’s age is not an available

defense. See TEX .PENAL CODE ANN . § 22.011(e); Grice, 162 S.W.3d at 646. A factual

sufficiency review is only appropriate to address the sufficiency of the State’s proof of the

elements of the charged offense. Hanks v. State, 137 S.W.3d 668, 672 (Tex.Crim.App. 2004).

Because the State was not required to prove Appellant was aware that the victim was underage at

the time of the offense, Issue One must be overruled.

In Issue Two, counsel argues that the prosecution’s identification of the complaining

witness as the “victim” was improper. Trial counsel objected to the prosecutor’s first reference

to the complaining witness as the “victim” during examination of the State’s first witness. The

objection was overruled. The prosecution continued to refer to the “victim” throughout the trial

with no further objection. Without expressing an opinion as to whether Appellant suffered from

an error, or was harmed by the prosecutor’s initial reference, we hold that the issue has not been

-2- preserved for our review because defense counsel failed to object to the subsequent instances.

See TEX .R.APP .P. 33.1(a). Issue Two is overruled.

In addition, we have carefully reviewed the record and counsel’s brief, and agree that the

appeal is wholly frivolous and without merit. Furthermore, we find nothing in the record that

may arguably support the appeal. The trial court’s judgment is affirmed.

October 16, 2008 DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

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