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Date: 10-11-2018

Case Style:

Michael Ray Ellsworth v. The State of Texas

Case Number: 03-17-00524-CR

Judge: Melissa Goodwin

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: Mr. Joshua D. Presley
The Honorable Stacey M. Soule

Defendant's Attorney: Mr. Chevo Pastrano

Description:







A jury found appellant Michael Ray Ellsworth guilty of aggravated sexual assault of
a child younger than six years of age for sexual abuse appellant perpetrated against his cousin’s
four-year-old son. See Tex. Penal Code § 22.021(a)(1)(B)(i), (iv) (defining aggravated sexual assault
of child as intentionally or knowingly causing penetration of anus of child by any means or
intentionally or knowingly causing anus of child to contact sexual organ of another person, including
actor). Appellant elected to have the trial court determine his punishment, see Tex. Code Crim.
Proc. art. 37.07(2)(b), and the trial judge assessed appellant’s punishment at confinement for life in
the Texas Department of Criminal Justice, see Tex. Penal Code § 22.021 (e) (categorizing offense,
generally, as first degree felony), (f) (increasing minimum term of imprisonment to 25 years if child
victim younger than six years of age).
Appellant’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 by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,
81–82 (1988).
Appellant’s counsel has certified to this Court that he sent copies of the motion and
brief to appellant, advised appellant of his right to examine the appellate record and file a pro se
response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State,
436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant did
not file a motion requesting access to the record, and, to date, has not filed a pro se response or
requested an extension of time to file a response.
We have conducted an independent review of the record—including the record of the
trial proceedings below and appellate counsel’s brief—and find no reversible error. See Anders,
386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for
review and the appeal is frivolous. Counsel’s motion to withdraw is granted.1
Appointed counsel certified to this Court that he advised appellant of his right to seek1 discretionary review pro se should this Court declare his appeal frivolous. In addition, appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal. Nevertheless, appointed counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which mandates that counsel send appellant a copy of this Court’s opinion and judgment along with notification of his right to file a pro se petition for discretionary review within five days after this opinion is handed down. See 2
On review of the record, however, we observe that the written judgment of conviction
in this case contains non-reversible clerical error. The judgment states that the “Statute for Offense”
is “22.021(f) Penal Code.” This statutory provision establishes that the minimum term of
imprisonment for aggravated sexual assault of child is increased to 25 years if the victim of the
offense is a child younger than six years of age at the time of the offense. This provision applies here
as the child victim was four years old at the time of the offense. However, the applicable statutory
provisions for the offense for which appellant was convicted also include subsections (a)(1)(b)(i) and
(iv) of section 22.021 of the Penal Code, the statutory provisions that define the offense of
aggravated sexual assault of child as charged in this case.
This Court has authority to modify incorrect judgments when the necessary
information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to
modify trial court’s judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower courts of appeals
to reform judgments).

Outcome: Accordingly, we modify the judgment of conviction to reflect that the “Statute
for Offense” is “22.021(a)(1)(b)(i), (iv), (f) Penal Code.”
As so modified, the trial court’s judgment of conviction is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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