                               NO. 07-04-0252-CR

                          IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                    PANEL D

                                 APRIL 27, 2005

                       ______________________________


                        RONALD JOHNSON, APPELLANT

                                        V.

                       THE STATE OF TEXAS, APPELLEE


                     _________________________________

            FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

              NO. 3702; HONORABLE MARVIN MARSHALL, JUDGE

                      _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                            MEMORANDUM OPINION


     Following a not guilty plea, appellant Ronald Johnson was convicted by a jury of

indecency with a child, and punishment was assessed by the jury at nine years
confinement and a $1,000 fine. In presenting this appeal, counsel has filed an Anders1

brief in support of a motion to withdraw. We grant counsel’s motion and affirm.


       In support of his motion to withdraw, counsel certifies he has diligently reviewed the

record and, in his opinion, the record reflects no reversible error upon which an appeal can

be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).

Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d

807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the court's judgment. Counsel has also shown that he sent

a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal

is without merit. In addition, counsel has demonstrated that he notified appellant of his right

to review the record and file a pro se response if he desired to do so. Appellant did not file

a response. Neither did the State favor us with a brief.


       M.W. is appellant’s daughter and was sixteen years old at the time of the incident.

On September 15, 2002, M.W. was asleep on her bed in her parent’s house. Sometime

after 5:30 a.m., she felt someone touching her vaginal area under the covers. M.W.

testified that she abruptly awoke and observed appellant “touching himself” while sitting at

the computer at the foot of her bed. She pulled the covers around her tightly and went

back to sleep. Shortly thereafter, M.W. woke again and noticed her shorts and underwear


       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                              2
had been pulled off and saw appellant sitting at the foot of her bed revealing his penis. She

confronted appellant about what he was doing and he eventually left the house. M.W. then

gathered her two younger siblings and took them to her grandmother’s house. The

grandmother, Celia Williams, contacted the police and notified the children’s mother at

work.


        The mother, Sherrie Williams, was the only witness called by appellant at trial. She

testified that M.W. told her appellant touched her private areas while she was sleeping.

She further testified that the day after the incident, she observed appellant gathering his

clothes and leaving the residence on his own accord.


        By his Anders brief, counsel concedes several grounds that could arguably support

an appeal. Celia Williams testified that M.W. told her appellant tried to “fool with her” and

that he was “rubbing on her stomach.” However, Sherrie Williams testified that M.W. told

her that appellant “touched her in her private spots.” Although M.W. denied dreaming the

incident and said that similar conduct had occurred before, Sherrie testified that M.W. often

had difficulty sleeping and sometimes experienced nightmares where she would see a

“ghost” standing by her bed. M.W. testified that she was asleep and woke only after she

felt someone touch her. She also stated that all the lights in the room were off except for

the computer.     In addition, there is evidence that M.W. would sometimes get into

arguments with appellant. Counsel admits this conflicting testimony could arguably raise

a question as to factual sufficiency.


                                             3
       When reviewing a factual sufficiency claim, an appellate court must view all the

evidence without the prism of “in the light most favorable to the prosecution” and set aside

the verdict only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996). An

appellate court must determine, considering all of the evidence in a neutral light, whether

the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State,

144 S.W.3d 477, 484 (Tex.Cr.App. 2004).


       We agree with counsel’s conclusion that there is conflicting evidence which could

be indicative of appellant’s innocence. However, the jury, as trier of fact, may choose to

believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex.Cr.App. 1986). A jury’s decision is not manifestly unjust merely because it resolved

conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410

(Tex.Cr.App. 1997). Upon review of the record, we conclude the evidence was factually

sufficient to support appellant’s conviction beyond a reasonable doubt.


       We also find that appellant was afforded effective assistance of counsel. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also

Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986).              In his brief, counsel

acknowledges that appellant’s trial counsel did not object to hearsay evidence regarding

what M.W. told the police, her grandmother, and her mother about appellant’s actions.

Furthermore, the record reflects that trial counsel may have elicited some evidence that


                                              4
would be considered harmful to appellant’s case. On the other hand, appellant’s trial

counsel filed and succeeded on numerous pre-trial motions, conducted proper voir dire,

vigorously cross-examined witnesses, and moved for a directed verdict. Absent evidence

regarding counsel’s trial strategy and provided the presumption that trial counsel’s conduct

falls within the wide range of reasonable and professional representation, no reversible

error is demonstrated. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002); Mallett

v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001).


       We have made an independent examination of the entire record to determine

whether there are any arguable grounds which might support this appeal. See Penson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that

the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




                                             5
