Brendan Potter v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 18, 2023
• Docket: 05-22-00187-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed April 18, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00187-CR

BRENDAN POTTER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-82314-2020

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Smith

Appellant, Brendan Potter, was indicted by a grand jury for the first-degree

felony offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03.

Specifically, the State alleged that on or about April 30, 2020, appellant, while in the

course of committing theft of property and with intent to obtain or maintain control

of said property, intentionally and knowingly threatened or placed the victim in fear

of imminent bodily injury or death and used or exhibited a deadly weapon—a

firearm. Appellant entered into an open plea, pleading guilty to the offense as charged, including a deadly weapon finding, and agreeing to submit the issue of

punishment to the trial court.

The trial court conducted a punishment trial, found that appellant was

competent to make his plea and did so freely and voluntarily, found appellant guilty

of aggravated robbery as charged in the indictment, and assessed appellant’s

punishment at ten years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. Appellant filed a motion to reconsider his sentence,

asking the trial court to place him on deferred adjudication instead of sentencing him

to ten years’ imprisonment. The trial court granted appellant’s motion and held a

new punishment hearing. The trial court took judicial notice of the prior hearing and

the testimony given at that hearing. Appellant’s trial counsel established for the

record that he had talked with appellant about new evidence the State planned to

present at the hearing and that his sentence could increase as a result. After hearing

new evidence from the State and the defense, the trial court again assessed

appellant’s punishment at ten years’ confinement. This appeal followed.

On appeal, appointed counsel filed a motion to withdraw, supported by an

Anders1 brief. The brief establishes counsel’s diligent review of the record,

including each stage of the proceeding, such as the indictment, plea agreement,

punishment trial, and judgment, as well as the sufficiency of the evidence, adverse

1 Anders v. California, 386 U.S. 738 (1967). –2– rulings, counsel’s performance, and back time calculations. Counsel cited relevant

law and provided record citations in his review. Based on counsel’s professional

evaluation of the record, counsel determined that there is no legal or factual issues

that could arguably be raised for appellate review and that this appeal is frivolous

and without merit.

Counsel provided appellant with a copy of the brief and informed him of his

rights to review the record, file a pro se brief, and seek discretionary review should

this Court conclude the appeal is frivolous. See Kelly v. State, 436 S.W.3d 313, 319

(Tex. Crim. App. 2014). This Court also provided notice to appellant of his right to

request a copy of the record and to file a pro se response. Although appellant

requested a copy of the record and a copy was provided to him by counsel, he did

not file a pro se brief. The State also did not file a brief in this appeal.

We conclude that counsel’s brief and motion meet the requirements of Anders

by presenting a professional evaluation of the record demonstrating why there are

no arguable grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991); High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel

Op.] 1978). Additionally, we have independently reviewed the record and conclude

there are no arguable grounds to present on appeal. See Stafford, 813 S.W.2d at 511.

We agree that the appeal is frivolous and without merit.

–3– Therefore, we grant counsel’s motion to withdraw and affirm the judgment of

conviction.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 220187F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRENDAN POTTER, Appellant On Appeal from the 366th Judicial District Court, Collin County, Texas No. 05-22-00187-CR V. Trial Court Cause No. 366-82314- 2020. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Smith. Justices Pedersen, III and Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of April 2023.

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