Billy Jack Johnson v. State

• Court: Court of Appeals of Texas
• Decided: October 29, 2015
• Docket: 02-14-00424-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00424-CR

BILLY JACK JOHNSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1341005D

MEMORANDUM OPINION 1

Appellant Billy Jack Johnson appeals from his conviction for assault and

four-year sentence. We affirm.

Johnson was indicted with two counts of assault on Sheila Newby,

Johnson’s girlfriend. Count one alleged Johnson caused serious bodily injury to

Newby by punching her with his hand; count two alleged Johnson cut off

Newby’s airway by applying pressure to her throat or neck with his hand.

1 See Tex. R. App. P. 47.4. See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West Supp. 2014), § 22.02(a)(1)

(West 2011). The indictment also contained a repeat-offender notice, alleging

that Johnson previously had been convicted of the felony offense of aggravated

sexual assault of a child. See id. § 12.42 (West Supp. 2014). Johnson waived

his right to a jury and pleaded not guilty to the indictment without benefit of a

plea-bargain agreement. See Tex. Code Crim. Proc. Ann. art. 1.13 (West Supp.

2014). The trial court found Johnson guilty of count two, a third-degree felony,

but not guilty of count one. Johnson pleaded true to the repeat-offender notice,

and the trial court sentenced him to four years’ confinement. See Tex. Penal

Code Ann. § 12.33 (West 2011), § 12.42(a).

Johnson filed a motion for new trial, arguing that the verdict and judgment

were “contrary to the law and the evidence.” The motion was overruled by

operation of law. See Tex. R. App. P. 21.8. Johnson timely filed a notice of

appeal from the trial court’s judgment. See Tex. R. App. P. 26.2(a). Johnson’s

court-appointed appellate counsel has filed a motion to withdraw as counsel,

accompanied by a brief in support of that motion. In the brief, counsel states

that, in his professional opinion, this appeal is frivolous and without merit.

Counsel’s brief and motion meet the requirements of Anders v. California,

386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of

the record demonstrating why there are no arguable grounds for relief. Johnson

did not respond to counsel’s brief or motion although both counsel and this court

advised him of his right to do so.

2 Once an appellant’s court-appointed attorney files a motion to withdraw on

the grounds that an appeal is frivolous and fulfills the requirements of Anders, we

have a supervisory obligation to undertake an independent examination of the

record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.).

In this evaluation, we consider the record and the arguments raised in the Anders

brief. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re

Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008). We have done so and

conclude, as did appellate counsel, that there is nothing in the record that might

arguably support the appeal and that the appeal is frivolous. See Bledsoe v.

State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,

206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we GRANT

counsel’s motion to withdraw and affirm the trial court’s judgment. See Penson

v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

/s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2015