## NO. 12

- 22

- 00117 -CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL WAYNE EAST , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 3RD

J

UDICAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM Michael Wayne East appeals h is conviction for aggravated sexual assault of a child

. Appellant’s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S.

Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State , 436 S.W .2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We affir m.

B ACKGROUND Appellant was charged by in formation 1 with aggravated sexual assault of a child

. 2 He and the State reached an agreement that Appellant would face a maximum impri sonment term of thirty years. 3 Appellant pleaded “ not guilty ,” and the matter proceeded to a bench trial

.

1 The parties appear to agree that Appellant was ind icted on these allegations

, subsequently waived his right to be accus ed by indictment , and requested that his case be prese nted by information. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.141 (West 2005 ).

2 A first

- degree felony punishable by imprisonment for a term of life, or not more than ninety

- nine years or less than five years, and a possible fine not to exceed $10,000.00. S ee T EX

. P ENAL C ODE A NN

. §§ 22.02 1(a) (1)( B )( iii ), (a) (2)( B), (e) (West 2019 ); 12.32 (West 2019 ).

3 The remaining agreement terms , if an y, do not appear in the appellate record.2 At trial, the evidence showed that Appellant lived with his daughter, his daughter’s boyfriend and child, 4 Shawna Mohnkern , Mohnkern’s daughter and son from a pr evious relationship, and Appellant and Mohnkern’s three daughters. One night, Appellant was li stening to music in the family’s van in the driveway when Mohnkern’s son, thirteen

- year

- old R.M.,

entered the van

. According to R.M., he entered the van to listen to music with Appellant

. At some point, Appellant ha d R.M. lower his pants and performed ora l sex on him

. Subsequently, R.M. went

inside the house and told Mohnkern that Appellant was sexually abusing him and he could not take it anymore

. Mohnkern sent R.M. back to the van so she could witness the abuse

. Appellant again performed oral sex on R .M. , and Mohnkern caught him in the act. R.M. suggested that they report the offense to a police officer who was parked nearby

. She declined but to ok R.M. to the hospital the next morning

. Eventually

, R.M. was adopted by another couple.

Mohnkern ’s testi mony corroborated R.M.’s story

. Additionally, she testified that she was initially shocked by R.M.’s allegations but believed him. After she saw A ppellant perfor ming
oral sex on R.M., she and the children stayed at the house overnight while Appellant rem ained on the property , either in the house or the van

. Mohnkern stated that R.M. did not change clothes before going to the hospital because she in structed him not to shower

. Because of Mohnkern’s

actions in this case , s he lost custody of all her childre n

. In Appellant’s police interview, he claimed that his three youngest daughters previously

hit R.M. ’s privates and caused a knot to form. In the v an that night, Appellant asked R.M.

whether the girls were still hitting him , and he said, “Yes. That knot f eels like it’s getting bigger. ” Acco rding to Appellant, R.M. lowered his pants, Appellant leaned over to view the

knot , and Mohnkern opened the doo r and accused him of abuse

. At the hospital, the sexual assault nurse examiner collected evidence swabs fro m R.M.’s penis and underwear. Subsequent testing of one of the underwear swabs revealed a DNA profile that was interpreted as a mixture of DNA from four individuals, with R.M. as an assumed

contributor. T esting of one of the penile swab s revealed a DNA p rofile that w as interpreted as a
mixture of DNA from two individuals

, with R.M . as a n assumed contributor

. Appellant could

not be excluded as a con tributor to either profile.

4 Some testimony conflicted regarding whether the boyfriend and child lived i n the home.3 The trial court found Appellant “guilty” as charged and ordered a presentence

in vestigation report

. After a bench trial on punishment, the court assessed hi s punishment at imprisonment for a term of twe nty years

. This appeal f ollowed.

A NALYSIS P URSUANT TO A NDERS V

. C ALIFORNIA Appellant’s counsel filed a brief in compliance with An ders v. California and Gainous v.

State

. Appellant’s counsel relates tha t he has reviewed the record and found no arguable grounds for appeal

. In compliance with High v. State , 573 S.W.2d 807, 81 2 (Tex. Crim. App.
[ Panel Op.] 1978), Appellant’s brief con tains a professional evaluation of the recor d demonstrating why there are no arguable grounds to be advanced. 5 Appellant contends in h is pro se res ponse that (1) his Texas and United States constitutional rights were violated be cause the search warrant af fidavit for his saliva contain s an incorrect birth date and driver’s license number, (2) Mohnkern perjured herself, (3) Appellant’s

trial counsel wa s ineffective, (4) R.M. ’s impact statement was improperly influenced, (5) the

State failed to thoroughly inv estigate the DNA evidence , (6) R.M. ’s testimony contains inconsistencies, and (7) the State failed to prove its case beyond a reasonable doubt.

Whe n faced with an Anders brief and a pro se response by an appellant, an appellate court can either (1) determ ine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2 ) determi ne that arguable

groun ds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State , 178 S.W.3d 824, 82 6- 27 (Tex. Crim. App. 2005).

W e conducted a n independent review of the record i n this case and found n o reversible error

. See id. We conclude that the appeal is wholly frivolous. See id.

C ONCLUSION

As required by Anders and Stafford v. St a te , 813 S.W.2d 503, 511 ( T ex

. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We car ried the motion for

5 In compliance with Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of h is motion to withdraw as counsel, informed Appellant of h is right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State
, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).4 consideration with the merits. Having done so and finding no reversibl e error , we grant

counsel’s motion for leave to withdra w and affirm the trial court’s judgment

. Appellant’s counsel has a duty to , w ithin five days of the date of t his opinion, send a copy of the opinion and judgment to Appellant and advise h im of h is right to file a petition fo r discretionary review. See T EX

. R. A PP

. P. 48.4; In re Schulman
, 252 S.W.3 d at 411 n .35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on h is behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed

within thi rty days f ro m either the date of this opinion or the da t e that the last timely motion for rehearing was overruled by this court. See T EX

. R. A PP

. P

. 68.2( a) . Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. Se e T EX

. R. A PP

. P. 68. 3 ( a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Pr ocedure. See In re Schulman , 252 S.W.3d at 408 n.22.

Opinion delivered September 6 , 2023. Panel cons isted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 6, 2023

NO. 12-22-00117- CR

MICHAEL WAYNE EAST , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 3rd District Court

of Henderson County, Texas (Tr.Ct.No. CR22 -0039-3)

THIS CAUSE came to b e heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all th ings affirmed
, for which execution may issue, and that this

decision be certif ied to the court below for observance.
By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.