NO. 07-09-0093-CR

NO. 07-09-0094-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 8, 2009

______________________________

BENJAMIN DON BENSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NOS. 19,189-B & 19,190-B; HONORABLE JOHN BOARD, JUDGE

_______________________________

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

MEMORANDUM OPINION

Following two separate pleas of not guilty, Appellant, Benjamin Don Benson, was

convicted by a jury in cause numbers 19,189-B and 19,190-B of aggravated sexual assault of

a child, enhanced, and sentenced to seventy years and sixty years confinement, respectively.

The trial court ordered the sentence in cause number 19,190-B to run consecutive to the
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 1

Notwithstanding that Appellant was informed of his right to file a pro se petition for 2

discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of

Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which

provides that counsel shall within five days after this opinion is handed down, send Appellant

a copy of the opinion and judgment together with notification of his right to file a pro se petition

for discretionary review. In re Schulman, at 408 n.22 & at 411 n.35.

2

sentence in 19,189-B. In presenting this appeal, counsel has filed an Anders brief in support 1

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

In support of her motion to withdraw, counsel certifies she has conducted a

conscientious examination of the record and, in her opinion, the record reflects no potentially

plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008).

Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See

High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that she

has complied with the requirements of Anders and In re Schulman by (1) providing a copy of

the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do

so, and (3) informing him of his right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant thirty days in which to 2

exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409 n.23.

Appellant did not file a response. The State responded by letter of its intent not to file a reply

brief unless Appellant filed a pro se response.

By the Anders brief, counsel raises five arguable issues. Counsel questions whether

the State engaged in prosecutorial misconduct by (1) using Juror Buecker to bolster
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unchallenged testimony regarding the credibility of the victim’s testimony regarding delay in

reporting the abuse and (2) by failing to instruct witnesses to avoid any reference to extraneous

offenses. By issue three, counsel challenges the effectiveness of trial counsel in failing to

object to certain matters. Counsel’s fourth arguable issue raises abuse of discretion by the trial

court in overruling Appellant’s objection to testimony of Louise Wade concerning the sexual

assault exam. By the fifth and final arguable issue, counsel alleges abuse of discretion in

cumulation of Appellant’s sentences. Counsel then candidly reviews each arguable issue and

explains why no reversible error is presented.

We have reviewed counsel’s arguments and we have independently examined the entire

record to determine whether there are any non-frivolous issues which might support the appeal.

See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252

S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found

no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing

the record and counsel’s brief, we agree with counsel that there are no plausible grounds for

appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel's motion to withdraw is granted and the trial court’s judgments are

affirmed. 

Patrick A. Pirtle

 Justice

 

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