TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00522-CR

Carlton McEwen, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. D-1-DC-08-904053, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

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

A jury convicted appellant Carlton McEwen of four counts of indecency with a child

by contact and one count of indecency with a child by exposure. See Tex. Penal Code Ann. § 21.11

(West 2003). The indecency with a child by contact offenses were enhanced by a prior conviction

for that offense. The district court assessed punishment at life imprisonment for each count of

indecency with a child by contact and twenty years’ imprisonment for the count of indecency with

a child by exposure.

The jury heard evidence that, at the time of the alleged abuse, McEwen was the live-in

boyfriend of the victim’s grandmother. The victim, who was twelve years old at the time of trial,

testified that, when she was five or six or seven years old, McEwen touched and rubbed her private

parts, exposed himself to her, and made her touch his private parts. According to the victim, this

happened on more than one occasion, although she could not remember how many times it
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had happened. The jury also heard evidence that the victim reported the abuse to her teacher, who

notified the victim’s father, who in turn called the police. The father testified at trial, although the

teacher did not.

Detective Chris Vetrano of the Austin Police Department, the lead investigator in

the case, testified about the investigation. He explained that he called McEwen and talked to him

on the phone about the allegations. A recording of that conversation was admitted into evidence.

The State’s final witness was the victim’s grandmother, who testified about her relationship with

McEwen. The only witness to testify for the defense was McEwen’s current wife, who claimed that

McEwen suffered from erectile dysfunction.

McEwen’s court-appointed attorney has filed a motion to withdraw supported by

a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements

of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S.

75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684

(Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v.

State, 436 S.W.2d 137 (Tex. Crim. App. 1969). McEwen received a copy of counsel’s brief and has

submitted a written response objecting to counsel’s motion to withdraw and asserting reasons why

he does not believe the appeal is frivolous.

We have reviewed the record, counsel’s brief, and McEwen’s written response. We

agree with counsel that the appeal is frivolous and without merit. We find nothing in the record that

might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App.
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2005) (holding that it is constitutional errorfor appellate court to address non-meritorious arguments

raised in pro se response to Anders brief). Counsel’s motion to withdraw is granted.

The judgment of conviction is affirmed.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: August 26, 2009

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