### 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. 03-12-00532- CR NO. 03-12-00533- CR

Richard Allen Miller, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NOS . 685 82 & 664 55, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

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

These are appea ls pursuant to Anders v. Ca l ifornia , 386 U.S. 738 (1967). I n trial court cause number 66455, appellant Richard Allen Miller pleade d g uilty to the offe nse of ag g rava ted assault with a deadly wea pon and was sentenc ed t o ei g ht y ear s’ defe rre d-adjudication community supervision. Subsequently , the State filed a motion to adjudicate , alleg ing, among other things, that Miller had committed the offe nse of indece n cy wi t h a child. Miller was separ ately indicted for that offense in trial court ca use number 68582. The indece ncy char g e was tried befor e the district court, and the b en ch trial also

serve d as the hear ing on the State’s motion to adjudicate

. At trial, the district court hear d evidenc e that on J uly 22, 2011, Miller cause d C.R., a seven- y ear -old g irl, to contac t his g enitals with her hand. C y nthia Moffe tt, the mother of the child, testified that on the day in question, Miller, who was a friend of C.R.’s fathe r, came over to her resi d en ce , as k ed to see her children, and went in thebackyard to speak wi t h t h em . On his way outside, Moffe tt rec alled, Miller told her that he was

“not a perve rt, ” t hat he loved the g irls, and that he would never do any thing to hurt them. These statements ca

used Moffe tt concer

n. S hortly there afte r, Moffe tt testified, C.R. came into the house “looking d o wn and sad and disturbed.” Be fore Moffe tt co u l d fi n d out was wrong , Miller enter ed the house and beg an y elling at C.R., causing the child to cry . Moffe tt asked C.R. to g o to her room and then asked Miller what h ad h ap p en ed

. Acc ording to Moffe tt, Miller told her that “kids will lie,” and then proce eded to tell her

that he had be en urinating in the backyard when C.R. appr oache d him, asked to touc h his se x ual org an, and then g rabbe d his hand and put it down her pants. Not believing that C.R. would do such things, Moffe tt told Miller to leave and then asked her d au gh t er wh at had happene d. Moffe tt testified that C.R. told her that Miller had pulled her pants down and also kissed her on her mouth. Moffe tt then called C.R.’s f ather , who came to the house and confr onted Miller. Miller, acc ording to Moffe tt, called C.R. an “[ex pletive] liar” and a “bitch,” which prompted C.R.’s fathe r to hit Mill er.

The poli ce were called out to the residence i n response to the di sturbance

. Offic er Andre w Papp of the Killeen Police Depa rtment testified that when he arr ived, he spoke with Miller about what had happene d. Acc ording to Papp, Miller was more interested in talking about the ear lier incident wit h C.R. than t he subsequent alterc ation with C.R.’s fathe r. P ap p ex plained that Miller told him that C.R. had “pulled her pants down” and “took [Mi ller’s] hand and broug ht it t o wards [and] betwee n her leg s.” Miller also told Papp that C.R. “wa s hug g ing on him, climbing on him and trying to g ive him kisses.” Papp then asked Miller “why he was unable to keep a seven- y ear -old g irl

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y from him,” to which Miller responde d that “she was persistent.” Shortly there afte r, Papp and another office r who had been speaking with C.R. and her mother decide d to arr est Miller. Miller was then transporte d t o a local hospital, wher e he was treated and rele ased for the injuries he had sustained in the alter cation with C.R.’s father , and later to the police station. At the station, afte r being advised of and waiving his constituti o n al and statutory rig hts , M iller was int ervie wed by Detec tive Fr ed Harris of the Kil leen Pol ice Depar tment. DVD 1

rec ording s of Miller’s statement to Detec tive Har ris wer e admitted into evidenc e. I n the statement, Miller admitted that C.R. had touched his g enitals and that what had happene d was “inappr opriate” but claimed that he had done nothing wrong . I nstead, Miller contende d that C.R. had initiated the sexual contact an d t h at he was “surpr ised” by C.R.’s behavior , which Miller char acte rized as “cur ious,” “a g g ressive,” and “pe rsistent.”

C.R. also t est ified at trial. Acc ording to C.R., on the day in question, Miller had touched her on her “butt” with his hand and a lso asked her to “ touch his middle spot,” which C.R. identified on a diagr am as a man’s g enitals. C.R. testified that she “didn’t t ouch him ” but did tell her mother

about what ha d happene d. The dist ri ct co u rt found the above evidenc e sufficie nt to prove that Miller had committed the offe nse of indece ncy with a child by contac t a nd also sufficie nt to prove that Miller h ad v i o l ated the terms and conditions of his community supervision by committing a crimi n al offe nse. The c auses we re the n rese t for sente ncing

.

See Miranda v. Arizona , 384 U.S

. 436 (1966); see also Tex. Code Crim. Proc. Ann. 1 art. 38.22 (West 2005). 3At th e p u n i s h m ent hear ing, the sole witness was Miller, who repe ated his ear lier

asser tion that C.R. had been responsible for the sexual contact. Miller also cla imed that the g irl’s mother had “coe rce d” the child into testify ing ag ainst him, but he could not provide an explanation for why C.R.’s mother would do so. At the conclusion of the hear ing, the district court adjudicate d Miller g uilty of the offe nse of ag g ravated assault, reiter ated that it had ear lier found him g uilty of the offe nse of indece ncy with a child by contac t, and sentenc ed Miller to 20 y ear s’ imprisonment in eac h

cause , with the sentenc es to run conc urre ntly . This appea l followed.

I n eac h cause , M i l l er ’s court-a ppointed attorney has filed a motion to withdraw supported by a brief concluding that the appea l is frivolous and without merit. The brief meets t he require ments of Anders v. Calif ornia by prese nting a profe ssional evaluation of the reco rd demonstrating why there are no arguable g rounds to be advanc ed. See 386 U.S. at 744-45; see also Penson v. Ohio , 488 U.S. 75 (1988); High v. State , 573 S.W .2d 807 (Tex. Crim. App. 1978); Currie

v. S t a t e , 516 S.W .2d 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553 (Tex. Crim

. App. 1972); Gainous v. State , 436 S.W .2d 137 (Tex. Crim. App. 1969). Miller was mailed a copy of counsel’s brief and advised of his rig ht to examine the appellate rec ord and to file a pro se brief.

Miller has filed a pro se response in which h e as s erts, without elabor ation, that “the victims in both ca s es lied.” Howeve r, it was for the district court as fac t-finder in these 2

case s to deter

mine whether the victims wer e cre dible, and we are to defe r to that deter mination. See Mattias v. State , 731 S.W .2d 936, 940 (Tex. Crim. App. 1987). Additionally , the State’s case ag ainst

Miller is appar ently ref

err ing to C.R. and Robert L ee Hay nes, the victim in the ag g ravated- 2 assault ca se. 4Miller was not limit ed to the statements of the victims but also included Miller’s judicial confe ssion

in the ag g ravated-a ssault case and his own statements in the indece ncy case , summari z ed ab ove, tending to show that he commit ted t hat offense. On this record, we cannot conclude that Miller’s unsubstantiated claim that the victims wer e l y i n g prese nts a non-fr ivolous issue on appea l. See McCoy v. Court of

Appeals , 486 U.S. 429, 436, 438 n.10 (1988) (desc ribing frivolous issue as one that “lac ks any

basis in law or fa ct” a

nd that “ca

nnot conce ivably

persua de the c ourt”). Having revie wed the rec ord, counsel’s brief, and Miller’s pro se response , we ag ree that the appea ls are frivolous and without merit. We find nothing in the rec ord that might arguably support the appe al in either c ause. Counsel’s motion to withdraw is g rante d in eac h cause

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The judg ments of conviction ar e af firmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Apr il 4, 2013 Do Not Publish

I n his pro se response , Miller also reque sts appointment of new appellate counsel. Miller 3 would be entitled to t h e ap p ointment of new counsel only if we first deter mined that his curr ent counse l wa s incorre ct in concluding that the appea l was frivolous. See Meza v. State , 206 S.W .3d 6 8 4 , 6 8 9 (T ex . Crim. App. 2006). Howeve r, beca use we have deter

mined that the appea l is indeed frivolous, Miller is not entitled to the appointment of new c ounsel. 5