                                   NO. 07-07-0260-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                FEBRUARY 11, 2009
                          ______________________________

                            DANIEL A. ELDER, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2005-410775; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                      _______________________________


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


                                MEMORANDUM OPINION


       Appellant Daniel A. Elder appeals from his conviction, on his plea of guilty, of the

offense of aggravated sexual assault of a child and his sentence of forty years of

confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies that there are no non-frivolous issues

on which to base an appeal. Agreeing with appointed counsel’s conclusion the record fails
to show any arguably meritorious issue which could support the appeal, we affirm the trial

court’s judgment.


       In November 2005, appellant was charged by indictment with seven counts of the

offense of aggravated sexual assault of a child.1 In April 2007, appellant entered an open

plea of guilty to the court.2 The trial court admonished appellant, determined his plea was

entered knowingly, freely, and voluntarily, and explained the range of punishment

applicable to this case.


       After the court’s acceptance of appellant’s plea of guilt, the State presented six

witnesses to establish that on more than seven occasions, appellant sexually abused his

four-year-old daughter by forcibly making her perform oral sex on him. The defense

presented three witnesses to show that appellant committed the sexual abuse of his

daughter because he himself was a child victim of sexual abuse.


      Following presentation of the evidence, the court ordered a pre-sentence

investigation report and in May 2007, found appellant guilty of all seven counts of

aggravated sexual assault and assessed sentence. The trial court denied the State’s


       1
       See Tex. Penal Code Ann. § 22.021(b) (Vernon 2007). This is a first degree felony
punishable by imprisonment for life or any term of not more than 99 years or less than 5
years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003).
       2
          Appellant signed and submitted a “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession,” stating he understood the allegations and confessed
to their truth, that he was the individual named as the defendant, that he waived his right
to a jury trial, that he was satisfied with his attorney’s representation, and that he waived
further time in which to prepare for trial. He further acknowledged that he had been
advised of the range of punishment in this matter. On the record, the trial court ensured
appellant signed this document freely, knowingly, and voluntarily.

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motion for consecutive sentences and instead ordered appellant’s sentences to run

concurrently. The trial court certified appellant’s right of appeal, and this appeal followed.


       Appellant's appointed appellate 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 certifies that he has diligently reviewed the record and, in his

professional opinion, under the controlling authorities and facts of this case, there is no

reversible error or legitimate grounds upon which a non-frivolous appeal can arguably be

predicated. The brief discusses in detail the relevant facts, the procedural history of the

case and the applicable law. Counsel notes potential issues but, citing the record and

relevant law, presents his reasons for concluding that none are arguably meritorious.

Counsel has certified that a copy of the Anders brief and counsel’s motion to withdraw have

been served on appellant, and that counsel has advised appellant of his right to review the

record and file a pro se response. 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 response.


       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.). Having done

so, we are convinced appellate counsel conducted a complete review of the record. We




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agree it presents no arguably meritorious grounds for review. Accordingly, we grant

counsel's motion to withdraw3 and affirm the judgment of the trial court.




                                   James T. Campbell
                                        Justice




Do not publish.




       3
        Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant’s right to file a
pro se petition for discretionary review. See Tex. R. App. P. 48.4.

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