Roke Acosta v. State

• Court: Court of Appeals of Texas
• Decided: July 11, 2005
• Docket: 07-04-00281-CR
• Status: Published

Opinion

NO. 07-04-0281-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 11, 2005 ______________________________

ROKE ACOSTA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

NO. B3798-0307; HONORABLE ED SELF, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Roke Acosta appeals his conviction for the felony offense of indecency

with a child. We agree with appointed counsel’s conclusion that the record fails to show

any meritorious issue which would support the appeal and affirm the trial court’s judgment.

Appellant was charged in an indictment alleging he engaged in sexual contact with

a child younger than seventeen. He pled not guilty and was tried before a jury which found

him guilty. The jury assessed punishment at twenty years confinement in the Institutional

Division of the Texas Department of Criminal Justice and a fine of $10,000.00. Appellant’s appointed trial counsel timely perfected appeal and new counsel was appointed to

represent appellant on appeal.

Appellant's counsel has filed a motion to withdraw and a brief in support pursuant

to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), in which he

represents he has searched the record and in his professional opinion, under the controlling

authorities and facts of this case, there is no reversible error or legitimate grounds for

appeal. Counsel has informed appellant by letter of his right to review the trial record and

to file a pro se brief. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet.

ref’d). By letter this court also notified appellant of his opportunity to submit a response to

the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a brief

or other response.

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

not rule on the 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 has merit, we will remand it to the trial court for appointment of new

counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

In a supplemental brief counsel discusses some of the evidence presented at trial

and objections made. Appellant was described as a “curandero” or “witch doctor” by his

son and daughter.1 Trial counsel objected to admission of the report of an expert witness

and testimony concerning appellant’s prosecution for practicing medicine without a license.

1 Appellant’s long time housekeeper denied he was a curandero or witch doctor.

2 Appellant waived any objection to the report when it was later offered into evidence, and

evidence of his prior prosecution for practicing medicine without a license was admitted

elsewhere without objection. Those complaints have not been preserved for appeal. See

Penry v. State, 691 S.W.2d 636, 655 (Tex.Crim.App. 1985) (admission of the same

evidence elsewhere without objection cures any error).

Our review of counsel’s brief and the record convinces us that appellate counsel

conducted a thorough review of the record. We have also made an independent

examination of the entire record to determine whether there are any arguable grounds

which might support the appeal. See Stafford, 813 S.W.2d at 511. We agree it presents

no meritorious grounds for review. We grant counsel’s motion to withdraw and affirm the

judgment of the trial court.

James T. Campbell Justice

Do not publish.