Marcus Wayne Rhodes v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00480-CR NO. 02-10-00481-CR NO. 02-10-00482-CR NO. 02-10-00483-CR NO. 02-10-00484-CR NO. 02-10-00485-CR NO. 02-10-00486-CR

MARCUS WAYNE RHODES APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

According to testimony from many witnesses at trial, over the course of

several years leading up to 2009, appellant Marcus Wayne Rhodes committed

1 See Tex. R. App. P. 47.4. aggravated sexual assault against five women and attempted to sexually assault

two other women. Each woman had a criminal history, including convictions for

prostitution.

In April 2009, Grand Prairie police officers arrested appellant at his job.

After his arrest and after the Grand Prairie officers gave him Miranda2 warnings,

those officers and two Fort Worth officers recorded an interview with him. The

Fort Worth officers arrived for the interview in time to watch appellant receive the

Miranda warnings from an adjoining room through closed-circuit television. The

Fort Worth officers later entered the interview room to talk to appellant while the

Grand Prairie officers watched that part of the interview from the adjoining room.

Appellant never said that he wanted to end the interview or talk to a lawyer.

Grand juries indicted appellant with six counts of aggravated sexual

assault and two counts of attempted sexual assault, among other charges. 3

Appellant’s indictments contained habitual offender notices alleging that he had

been previously convicted of two other felony offenses. The trial court appointed

counsel for appellant and granted his motion for the appointment of an

investigator. Appellant filed motions to suppress the recorded oral statement that

2 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630 (1966). 3 See Tex. Penal Code Ann. §§ 15.01(a), 22.011(a) (West 2011), § 22.021(a)(1)(A)(i)–(ii), (2)(A)(ii)–(iii) (West Supp. 2012).

2 he had made to the police. The trial court viewed the recording and held a

hearing on appellant’s motions but denied them.

Appellant agreed to participate in one trial to resolve all of his charges. He

pled not guilty to each offense. His predominant defensive theories at trial were

that the victims of his crimes were not credible and had consented to the sexual

encounters that they had with him as part of prostitution agreements. After a jury

heard extensive evidence and arguments from the parties, it convicted appellant

of six counts of aggravated sexual assault and two counts of attempted sexual

assault.

Appellant chose the trial court to assess his punishment in each case. He

pled true to the indictments’ habitual offender notices, and his wife testified in the

punishment phase. The trial court sentenced appellant to life sentences for five

of the aggravated sexual assault convictions, life sentences for each of the

attempted sexual assault convictions, and a sentence of fifty years’ confinement

for the remaining aggravated sexual assault conviction. The court ordered each

sentence to run concurrently with the others. Appellant brought these appeals.

Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

avers that in his professional opinion, there are “no errors warranting reversal

that can be legitimately supported by the record.” Counsel’s brief and motion

meet the requirements of Anders v. California by presenting a professional

evaluation of the record demonstrating why there are no arguable grounds for

3 relief. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967); see In re Schulman,

252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (analyzing the effect of Anders).

We gave appellant an opportunity to file a pro se response to his counsel’s brief,

but he has not done so. The State has not filed a brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

are obligated to independently examine the record and to determine whether

there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex.

App.—Fort Worth 1995, no pet.). Only then may we grant counsel’s motion to

withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that the appeal is frivolous; we find nothing in the record that might

arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.

Crim. App. 2006). Accordingly, we grant counsel’s motion to withdraw and affirm

the trial court’s judgments.

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 1, 2012