Enrico Guadalupe Zambrano v. State

• Court: Court of Appeals of Texas
• Decided: May 2, 2019
• Docket: 07-18-00083-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00083-CR

ENRICO GUADALUPE ZAMBRANO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 242nd District Court Hale County, Texas Trial Court No. B20453-1705, Honorable Kregg Hukill, Presiding

May 2, 2019

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

After a jury trial, appellant Enrico Guadalupe Zambrano was convicted of

continuous sexual abuse of a child1 and sentenced to thirty years of confinement.2

Appellant’s appointed counsel filed a brief in compliance with Anders v. California, 386

U.S. 738 (1967), in support of a motion to withdraw. Agreeing with appointed counsel’s

1 TEX. PENAL CODE ANN. § 21.02 (West 2018). 2This is a first-degree felony punishable by imprisonment for life or for any term of not more than ninety-nine years or less than twenty-five years. TEX. PENAL CODE ANN. § 21.02(h). conclusion the record fails to show any arguably meritorious issue that could support the

appeal, we will affirm the trial court’s judgment and grant counsel’s motion.

The child victim of appellant’s offense was his fourteen-year-old daughter L.Z. L.Z.

testified in detail about numerous instances of sexual abuse by appellant beginning when

she was about six years old and ceasing when she was about twelve. She told the jury

about instances of such abuse in at least four different locations where the family lived,

all occurring over a period lasting more than thirty days. She described those repeated

instances as appellant putting “his mouth on my middle part,” putting “his hands on my

middle part,” and putting “his middle part on my middle part.”

L.Z.’s mother testified that when L.Z. was twelve, L.Z. told her that appellant

touched her “private,” put his private on her private, put his mouth on her private, and

exposed himself to her. This behavior occurred over the span of six or seven years. The

mother testified that when she asked appellant if he had done these things to their

daughter, appellant told her he “couldn’t tell me yes or he couldn’t tell me no.” A forensic

interviewer also testified to L.Z.’s statements to him about recurring acts of sexual abuse

by appellant. When recalled during the defense’s case, he testified L.Z. told him about

instances occurring in nine different places.

Appellant also testified, denying all of the allegations but venturing no explanation

for her accusations. During his case, appellant called several witnesses, some of whose

testimony could be taken to support appellant’s claim L.Z.’s accusations were fabricated.

His witnesses also, however, included K.Z., the twelve-year-old sister of L.Z. In response

to counsel’s question asking whether she ever saw appellant “do anything inappropriate

with any of you kids,” she responded, “I don’t know. My sister was on the couch, and he

2 was on his knees, but I don’t know—his head was in her lap, but I don’t know if it was

sexual or not.”

The jury found appellant guilty as charged in the indictment and sentenced him to

a term of imprisonment of thirty years, a term near the minimum of the range of

punishment. Evidence of appellant’s prior criminal history was before the jury.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record, and in his opinion, it reflects no potentially

plausible basis for reversal of appellant’s conviction. Anders, 386 U.S. at 744-45; In re

Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel filed an unusually

thorough Anders brief, comprising some ninety-two pages, in which he meticulously

discusses why, under the controlling authorities, the record supports that conclusion. See

High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated

that he has complied with the requirements of Anders by: (1) providing a copy of the brief

and the appellate record to appellant, (2) notifying him of the right to file a pro se response

if he desired to do so, and (3) informing him of the right to file a pro se petition for

discretionary review. Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014); In re

Schulman, 252 S.W.3d at 408. By letter, this court also notified appellant of his

opportunity to submit a response to the Anders brief and motion to withdraw filed by

counsel. Appellant has filed a response raising numerous issues.

In conformity with the standards set out by the United States Supreme Court, we

do not rule on counsel’s motion to withdraw until we have independently examined the

record. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.). If

this court determines the appeal arguably has merit, we remand it to the trial court for

3 appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991).

By his Anders brief, counsel raises several grounds that could possibly support an

appeal but systematically explains why he concludes none show arguably reversible

error. Counsel carefully describes, analyzes, discusses, and comments on the evidence,

objections, and rulings in the case. In addition, counsel’s brief addresses the performance

of trial counsel. He cites many cases and statutes in support of his analysis. And, at

various points in his brief, he includes “intermissions” designed to further explain certain

points for appellant. After his thorough evaluation of the record, counsel concludes the

appeal is frivolous. We have reviewed each ground raised by counsel, reviewed each

claim raised by appellant, and made an independent review of the entire record to

determine whether there are any arguable grounds which might support an appeal. See

Penson v. Ohio, 488 U.S. 75 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App.

2005). We have found no arguable grounds supporting a claim of reversible error and

agree with counsel that the appeal is frivolous.

Accordingly, we grant counsel’s motion to withdraw3 and affirm the judgment of the

trial court.

James T. Campbell Justice

Do not publish.

Counsel shall, within five days after this opinion is issued, send appellant a copy 3

of the opinion and judgment, along with notification of his right to file a pro se petition for discretionary review. TEX. R. APP. P. 48.4.