Brandy Nichole Smith v. State

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-17-00343-CR ___________________________

BRANDY NICHOLE SMITH, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR17-0107

Before Sudderth, C.J.; Walker and Kerr, JJ. Opinion by Chief Justice Sudderth MEMORANDUM OPINION1

Appellant Brandy Nichole Smith appeals her conviction of theft with two prior

theft convictions, for which she was sentenced to twenty-four months’ confinement

in state jail and a $1,000 fine. See Tex. Penal Code Ann. § 12.35 (West Supp. 2017)

(providing that state jail punishment range is confinement from 180 days to two years

and up to a $10,000 fine), § 31.03(a), (e)(4)(D) (West Supp. 2017) (providing that

theft—the unlawful appropriation of property with intent to deprive its owner

thereof—is a state jail felony if the stolen property’s value is less than $2,500 and the

defendant has been previously convicted two or more times of any grade of theft).

Appellant’s court-appointed appellate counsel filed a motion to withdraw as

counsel and a brief in support of that motion. See Anders v. California, 386 U.S. 738,

744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of the

record demonstrating why there are no arguable grounds for relief. Id., 87 S. Ct. at

1400. Appellant had the opportunity to file a pro se response to the Anders brief but

has not done so; the State has not filed a brief.

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

ground that the appeal is frivolous and fulfills the requirements of Anders, this court

must independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511

See Tex. R. App. P. 47.4. 1

2 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort

Worth 1995, no pet.). Only then may we grant counsel’s motion to withdraw. See

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

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that this appeal is wholly 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,

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.

/s/ Bonnie Sudderth

Bonnie Sudderth Chief Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: September 13, 2018