### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00508- CR
Ernest Benl McIntyre , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 668 93, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

E rn es t Benl McI nty

re pleade d g uilty to possession of child pornog raphy

. See Tex. Pena l Code § 43.26. After a non-jury punishment he aring , the trial court assessed a sentenc e of nine y ear s in prison.

McI nty re’ s court-a

ppoin t ed appellate attorney has filed a motion to withdraw supported by a brief concluding that this appea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif ornia , 386 U.S. 738, 744 (1 9 6 7), by prese nting a profe ssional evalua tion of the rec ord demonstrating why there are no arguable g rounds to be advanc ed. See id .;

see also Penson v. Ohio , 488 U.S. 75, 80 (1988); High v. State , 573 S.W .2d 807, 811-13 (Tex. Crim. App. 1978). McI nty

re’ s counsel sent a copy of the brief to McI nty re and advised him of his rig ht to examine the appellate rec ord and to file a pro se br ief. See A nders , 386 U.S. at 744.McI nty re has filed a pro se brief in which he raises four issues that he contends merit further study by new appellate counsel. Three of the complaints rela te to photogr aphs of a computer

on which pornog raphic imag es wer e found—photos that McI nty re contends are exculpatory beca use they raise the possibili ty

that he unwittingly

acquir ed the illega l imag es when he boug ht used disk d ri ves to install as he built the computer. He argues (1) that the State violated the Br a d y ru l e b y withholding favor able evidenc e until afte r his g uil t y plea, (2) that the State’s failure to produce photos of the computer befor e his g uilty p l ea re n d er ed his plea unknowing and involuntary , and (3) that his trial counsel was ineffe ctive for failing to file a motion either to withdraw his g uilty plea

or new trial once these phot os wer e revea led. His fourth claim is t h at h is counsel was ineffe ctive in failing to file a motion to rec use the trial judge as biased beca use he ex p re s s ed ex as peration with McI nty

re. We conclude , based on the rec ord befor e us, that McI nty re has not shown meritorious g rounds that could be substantiated with new app ell ate counsel. He has not shown that new counsel could prese nt a

meritorious argument that the photos are favor able to him. Fur ther, a t the punishment phase—six wee ks afte r seeing the photos of the computer and afte r the photos of the computer wer e admitted into evidenc e—McI nty re admitted his g uilt, s ay i n g “I’ m acc epting responsibility

. I actua lly take full responsibility for this even though it was the coca ine that cause d this. But I do acc ept—I di d this. I went to those sites. I clicked on those buttons and it was
on m y com puter. ” This is inconsistent with his claim in his pro se brief that, had he known of the p h o t o s o f t he computers sooner, he would have argued that the disk drives wer e loaded wi t h the illega l imag es befor e he boug ht them and without his knowledg e. The rec ord also does not

2demonstrate a plausible argument that his counsel was ineffe ctive for failing to file a m o t ion to

withdraw his g uilty

plea, f or a ne w trial, or to re cuse the trial judg e. We have revie wed the rec ord and find no reve rsible err or. See Garner v. State , 300 S.W .3d 763, 766 (Tex. Crim. App. 2009). We ag ree with counsel that this appea l is frivolous, aff irm the judg ment of convic tion, and g rant c ounsel’s motion to withdraw.

J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: June 4, 2014 Do Not Publish

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