Damarcus Dewayne Roshaw Rogers v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2019
• Docket: 09-18-00478-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00478-CR __________________

DAMARCUS DEWAYNE ROSHAW ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A170505-R __________________________________________________________________

MEMORANDUM OPINION

A jury found Appellant Damarcus Dewayne Roshaw Rogers guilty of

aggravated assault, a second-degree felony, and the court assessed punishment at

twelve years of imprisonment and a fine of $1000. See Tex. Penal Code Ann. § 22.02

(West 2019).1 The court also ordered Rogers to pay restitution in the amount of

1 We cite the current statute as amendments made after Rogers’s offense do not affect our disposition. 1 $95,837.69. Rogers’s appointed appellate counsel filed a motion to withdraw and a

brief that presents counsel’s professional evaluation of the record and concludes the

appeal lacks merit and that there are no arguable grounds for reversal. See Anders v.

California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.

1978). We granted an extension of time for Rogers to file a pro se brief, and Rogers

filed a pro se letter in which he stated that he received ineffective assistance of

counsel. Rogers asserts he was not prepared for trial, he “only had one offer[,]” and

he did not want to proceed to trial. He also complains his trial attorney did not get

him another offer. 2 The Court of Criminal Appeals has held that we need not address

the merits of issues raised in an Anders brief or a pro se response. Bledsoe v. State,

178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Rather, an appellate court may

determine: (1) “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

2 Rogers’s pro se letter includes no citations to authority or to the record. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review. See Wolfe v. State, 509 S.W.3d 325, 342- 43 (Tex. Crim. App. 2017); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). An appellant may therefore forfeit error through his failure to brief adequately. See Leza v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011) (declining to reach the merits of appellant’s issues because of inadequate briefing); Ochoa v. State, 355 S.W.3d 48, 56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“An appellant waives an issue on appeal if he fails to adequately brief that issue by presenting supporting arguments and authorities.”) (citing Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2002)). 2 grounds for appeal exist and remand the cause to the trial court so that new counsel

may be appointed to brief the issues.” Id.

Upon receiving an Anders brief, this Court must conduct a full examination

of the record to determine whether the appeal is wholly frivolous. Penson v. Ohio,

488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have reviewed the entire

record, counsel’s brief, and Rogers’s pro se response, and we have found nothing

that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827-28 (“Due to

the nature of Anders briefs, by indicating in the opinion that it considered the issues

raised in the briefs and reviewed the record for reversible error but found none, the

court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”).

Therefore, we find it unnecessary to order appointment of new counsel to re-brief

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

We affirm the trial court’s judgment. 3

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

3 Rogers may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3 Submitted on June 21, 2019 Opinion Delivered July 10, 2019 Do Not Publish

Before Kreger, Horton and Johnson, JJ.