Henry Earl Cosey v. State

Opinion issued June 25, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00309-CR

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HENRY EARL COSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 599361

MEMORANDUM OPINION

A jury found appellant, Henry Earl Cosey, guilty of the offense of sexual

assault and that he had been previously convicted of a felony offense, and it

assessed his punishment at confinement for 30 years. We affirmed the trial court’s

judgment in an unpublished opinion. See Cosey v. State, No. 01-92-00852-CR,

1994 WL 388310 (Tex. App.—Houston [1st Dist.] July 28, 1994, pet. ref’d) (not

designated for publication). Appellant then filed a post-conviction motion for

forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1) (West

Supp. 2012). The trial court granted the motion. See id. art. 64.03(a), (c) (West

Supp. 2012). Upon receiving the test results, the trial court found that the results

were not favorable to appellant and it is not reasonably probable that appellant

would not have been convicted had the results been available during the trial of the

offense. See id. art. 64.04 (West Supp. 2012). Appellant timely filed a notice of

appeal. See id. art. 64.05 (West 2006).

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly

reviewed the record and he is unable to advance any grounds of error that warrant

reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

2

In his pro se response, appellant asserts that the trial court refused to call

certain witnesses at the trial of the case and did not consider all of the evidence.

He further asserts that he has been deprived of the right to read and possess

political literature, has not been provided with necessary medical care, and has

been threatened with punishment for taking legal action. Finally, he asserts that

the search and seizure in his underlying case was unsupported by the evidence and

he was compelled to give evidence against himself.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing

court determines whether arguable grounds exist by reviewing entire record). We

note that an appellant may challenge a holding that there are no arguable grounds

for appeal by filing a petition for discretionary review in the Texas Court of

Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

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We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Bob Wicoff must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP.

P. 6.5(c).

PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

1

Appointed counsel still has a duty to inform appellant of the result of this appeal

and that he may, on his own, pursue discretionary review in the Texas Court of

Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.

1997).

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