Cody Carlson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 11, 2024
• Docket: 01-23-00915-CR
• Status: Published

Opinion

Opinion issued June 11, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00915-CR ——————————— CODY CARLSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 56th Judicial District Court Galveston County, Texas Trial Court Case No. 23CR1218

MEMORANDUM OPINION

Cody Carlson was charged with assault causing bodily injury to a member of

his family.1 Included in the indictment was an allegation that Carlson was previously

1 See TEX. PENAL CODE § 22.01(a)(1). convicted of a similar assault, which raised the underlying offense to a third-degree

felony.2 The indictment also included two enhancement paragraphs, each alleging

that Carlson had a prior felony conviction, which made him eligible for punishment

as a habitual offender.3

A jury found Carlson guilty as charged in the indictment and found the

enhancement allegations true. It assessed his punishment at confinement for

thirty-five years.

On appeal, Carlson’s appointed counsel has filed a motion to withdraw, along

with an Anders brief, stating that the record presents no reversible error and that the

appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 744

(1967).

In his brief, counsel states that he has thoroughly reviewed the record and is

unable to advance any ground of error that warrants reversal. See id.; In re Schulman,

252 S.W.3d 403, 406–08 (Tex. Crim. App. 2008); Mitchell v. State, 193 S.W.3d 153,

155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). His brief meets the Anders

requirements because it presents a professional evaluation of the record and supplies

2 See id. § 22.01(b)(2)(A); see also TEX. CODE CRIM. PROC. § 42.013; TEX. FAM. CODE §§ 71.003, 71.004. 3 See TEX. PENAL CODE § 12.42(d).

2 this Court with references to the record and legal authority. See Anders, 386 U.S. at

744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

Further, Carlson’s counsel informed this Court that he mailed a copy of the

motion to withdraw and Anders brief to Carlson and informed him of his right to file

a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App.

2014); In re Schulman, 252 S.W.3d at 408–09. Counsel also informed Carlson of

his right to access the appellate record and provided him with a form motion for pro

se access.4 See Kelly, 436 S.W.3d at 319–20.

Subsequently, the district clerk notified this Court that it sent a copy of the

record to Carlson. Carlson did not file a pro se response to the Anders brief.

The State filed a waiver of its right to file a response to the Anders brief.

We have independently reviewed the entire record in this appeal. See Mitchell,

193 S.W.3d at 155. We conclude that no reversible error exists in the record, that

there are no arguable grounds for review, and that the appeal is frivolous. See Anders,

386 U.S. at 744 (emphasizing that reviewing court—and not counsel—determines,

after full examination of proceedings, whether appeal is wholly frivolous); Garner

4 This Court also notified Carlson that his counsel filed a motion to withdraw and Anders brief, informed Carlson of his right to access the record and file a response, and provided him with a form motion to access the record. See Kelly v. State, 436 S.W.3d 313, 321–22 (Tex. Crim. App. 2014).

3 v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d

824, 826–28 (Tex. Crim. App. 2005).

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.5 See TEX. R. APP. P. 43.2(a). Attorney Joel H. Bennett must immediately

send the required notice and file a copy of that notice with the Clerk of this Court.

See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).

5 Appointed counsel still has a duty to inform Carlson of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review. See id. at 827 n.6. 4