Gary Ellis v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 20, 2025
• Docket: 09-24-00260-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00260-CR ________________

GARY ELLIS, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CR13,893 (Counts I and II) ________________________________________________________________________

MEMORANDUM OPINION

In trial court cause number CR13,893, a grand jury indicted appellant Gary

Ellis for sexual assault of a child in Count I and for indecency with a child by sexual

contact in Count II. See Tex. Penal Code Ann. §§ 22.011(a)(2), 22.11(d). A jury

found Ellis guilty of sexual assault of a child as charged in Count I and indecency

with a child by sexual contact as charged in Count II. In Counts I and II, the jury

1 assessed Ellis’s punishment as a habitual offender at life in prison with a $10,000

fine. The trial court ordered the sentences to run consecutively.

On appeal, Ellis’s appellate counsel filed an Anders brief that presents

counsel’s professional evaluation of the record and concludes the appeal is frivolous.

See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978). On March 14, 2025, we granted an extension of time for Ellis to

file a pro se brief, and Ellis filed a pro se brief.

The Court of Criminal Appeals has held that when a court of appeals receives

an Anders brief and a pro se brief, an appellate court has two choices. See Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). “It may determine that

the appeal is wholly frivolous and issue an opinion explaining that it has reviewed

the record and finds no reversible error[;] [o]r, it may determine that arguable

grounds for appeal exist and remand the cause to the trial court so that new counsel

may be appointed to brief the issues.” Id. (citations omitted). We do not need to

address the merits of each claim raised in an Anders brief or a pro se brief when we

have determined there are no arguable grounds for review. Id. at 827.

Upon receiving an Anders brief, a court must conduct a full examination of

the record to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have reviewed the entire

record, counsel’s brief, and Ellis’s pro se brief, and we have found no reversible

2 error, and we conclude the appeal is wholly frivolous. See Bledsoe, 178 S.W.3d at

826-27. Therefore, we find it unnecessary to order appointment of new counsel to

re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991).

That said, there is a clerical error in the trial court’s judgment that needs to be

reformed. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.

Crim. App. 1993). The judgment reflects that Ellis’s sentences shall run

concurrently, but the record reflects that when the trial court orally pronounced

Ellis’s sentences, the trial court ordered that the sentences shall run consecutively.

See Bigley, 865 S.W.2d at 27. We modify the trial court’s judgment to show that

Ellis’s sentences shall run consecutively. We affirm the trial court’s judgment as

modified. 1

AFFIRMED AS MODIFIED.

JAY WRIGHT Justice

Submitted on August 5, 2025 Opinion Delivered August 20, 2025 Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

1 Ellis may challenge our decision by filing a petition for discretionary review with the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.1. 3