Brian Kenneth Manuel v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2018
• Docket: 09-16-00239-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

___________________

NO. 09-16-00239-CR ___________________

BRIAN KENNETH MANUEL, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 16-23989 __________________________________________________________________

MEMORANDUM OPINION

Brian Kenneth Manuel appeals from a judgment convicting him of unlawfully

possessing a firearm. See Tex. Penal Code Ann. § 46.04(a)(1) (West 2011)

(prohibiting a person who has been convicted of a felony from possessing a firearm

for a period of five years from the felon’s release from community supervision,

parole, or mandatory supervision, whichever is later). After Manuel appealed his

conviction, the attorney the trial court appointed to represent Manuel in his appeal

1 filed an Anders brief, which states that the attorney reviewed the trial proceedings

and could find no meritorious claims on which he could present an argument

claiming that Manuel’s conviction should be reversed. See Anders v. California, 386

U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

The record relevant to Manuel’s conviction shows that in 2016, following a

two-day trial, the jury found Manuel guilty of the unlawful possession of a firearm.

See Tex. Penal Code Ann. § 46.04(a)(1). Following the punishment phase of

Manuel’s trial, the jury assessed a nine-year sentence. The trial court’s judgment is

consistent with the jury’s verdict. Subsequently, Manuel filed a timely notice of

appeal.

The brief filed by Manuel’s court appointed attorney presents counsel’s

professional evaluation of the record that is relevant to Manuel’s conviction. After

evaluating the record of the proceedings in the trial court, Manuel’s attorney filed a

brief that concludes no error occurred in the lower court on which an attorney could

base an appellate argument seeking to reverse Manuel’s conviction.

After receiving the Anders brief filed by appellate counsel, we allowed

Manuel additional time to review the record and the opportunity to file a pro se

response. Subsequently, Manuel filed a response and a supplemental response. In

these, Manuel complains the evidence is legally and factually insufficient to support

2 the jury’s verdict, and he argues that the judgment that was rendered in his case

should be reversed because he received ineffective assistance of counsel.

The clerk’s record that is before us does not reflect that any post-judgment

motions seeking to overturn the jury’s verdict were filed. Generally, the records that

are available in a defendant’s direct appeal of his conviction are not sufficiently

developed to allow an appellate court to address claims asserting that the appellant

received ineffective assistance of counsel during his trial. Mata v. State, 226 S.W.3d

425, 430 (Tex. Crim. App. 2007). In Manuel’s case, Manuel’s trial attorney was

never given the opportunity to respond regarding the matters that Manuel criticizes

in his pro se response and supplemental response. Consequently, the complaints

Manuel makes about his trial counsel cannot be resolved on the record that is before

us. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (requiring

the record to be developed in cases involving ineffective assistance claims in a

manner affirmatively demonstrating that the claim has merit).

We have independently examined the clerk’s record and the reporter’s record,

and we conclude there are no arguable issues that could be advanced to support the

filing of a merits-based brief in Manuel’s appeal. The Court of Criminal Appeals has

held that when faced with an Anders brief, appellate courts need not address the

merits of the issues that have been raised in a pro se response. Bledsoe v. State, 178

S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Instead, an appellate court may 3 determine either “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.

We have independently examined the clerk’s record and the reporter’s record,

and we agree that no arguable error supporting reversal exists on the record currently

before us in Manuel’s appeal. See id. We further conclude that based on the record,

Manuel’s appeal is frivolous. See Anders, 386 U.S. at 743. Therefore, we further find

that it is unnecessary to order the appointment of new counsel to re-brief Manuel’s

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

the court of appeals to appoint other counsel only if it determines that there were

arguable grounds for the appeal). Given our conclusion that no arguable error exists

to support Manuel’s appeal, the trial court’s judgment is affirmed.1

AFFIRMED.

______________________________ HOLLIS HORTON Justice

Submitted on November 15, 2017 Opinion Delivered January 10, 2018 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.

1 Manuel may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 4