Benjamin Garrett v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 5, 2023
• Docket: 09-22-00264-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00264-CR __________________

BENJAMIN GARRETT, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 20-35627 __________________________________________________________________

MEMORANDUM OPINION

Benjamin Garrett appeals his conviction for aggravated assault with a deadly

weapon. We affirm.

In 2020, Garrett was indicted for aggravated assault with a deadly weapon (a

firearm), a second degree felony. See Tex. Penal Code Ann. § 22.02. Garrett pleaded

“not guilty,” he was tried by a jury in July 2022, and the jury found Garrett guilty

and found that he had used a deadly weapon during the commission of the offense.

1 During the punishment phase of trial, the State provided evidence of a prior felony

conviction for manslaughter, and Garrett pleaded “true” to the enhancement. The

jury assessed punishment at twenty-five years’ imprisonment.

On appeal, Garrett’s court-appointed attorney filed a brief wherein the

attorney stated that he had reviewed the case and, based on his professional

evaluation of the record and applicable law, there are no arguable grounds for

reversal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978). We granted an extension of time for Garrett to file a

pro se brief. On January 19, 2023, Garrett’s appellate attorney filed a Motion to

Temporarily Abate Court’s Decision requesting this Court to hold its decision for at

least forty-five days because counsel had not heard from Garrett, and counsel

requested additional time to determine whether there were any “relevant issues

and/or raise any point of error.” On January 20, 2023, Garrett filed a pro se Motion

for an Extension of Time for ninety days. We denied the motion to abate and granted

Garrett an extension until February 22, 2023, to file a pro se brief or response.

On March 10, 2023, Appellant filed a pro se Motion for Substitution of

Counsel. In the Motion, Appellant requested new appointed counsel because he

“feels that [his current appointed appellate counsel] cannot/or/will not render the

effective assistance of counsel[.]” He also refers to other pending charges and

2 another appointed counsel and requests new appointed counsel “for the purposes of

d[i]sposing of the additional charges.”

The Court of Criminal Appeals has held that we need not address the merits

of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). Rather, an appellate court may determine

either: (1) “that the appeal is wholly frivolous and issue an opinion explaining that

it has reviewed the record and finds no reversible error”; or (2) “that arguable

grounds for appeal exist and remand the cause to the trial court so that new counsel

may be appointed to brief the issues.” Id. Upon receiving an Anders brief, we

conduct a full examination of the record to determine whether the appeal is wholly

frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744).

We have independently reviewed and conducted a full examination of the

entire appellate record, and we agree that no arguable issues support an appeal. See

Bledsoe, 178 S.W.3d at 827-28. We also conclude that Appellant’s pro se letter does

not state a legal issue or complaint, nor does it provide any legal authority or analysis

as required by the rules for appellate briefs. See Tex. R. App. P. 38.1(i). Therefore,

we find it unnecessary to order appointment of new counsel to re-brief Garrett’s

3 appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

affirm the trial court’s judgment.1

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on March 29, 2023 Opinion Delivered April 5, 2023 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

1 Garrett may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.