Daniel Barron Sr. v. State

• Court: Court of Appeals of Texas
• Decided: February 5, 2015
• Docket: 13-14-00221-CR
• Status: Published

Opinion

NUMBER 13-14-00221-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DANIEL BARRON, SR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Longoria Appellant, Daniel Barron Sr., pleaded guilty pursuant to a plea agreement to one

count of assault-family violence, a third-degree felony. See TEX. PENAL CODE ANN.

§ 22.01(a)(1), (b)(2)(a) (West, Westlaw through 2013 3d C.S.). As called for by the

agreement, the trial court assessed punishment at ten years’ imprisonment, suspended the sentence, and placed appellant on community supervision for three years with a non-

probated fine of $1,000. Less than a year later, the State filed a motion to revoke in which

it alleged, among other things, that appellant did not comply with the conditions of his

supervision that required him to enroll in and complete the Batterer’s Intervention

Program and to have no contact with the complainant in his case. Appellant pleaded “not

true” to the allegations. Following a hearing, the trial court found that all of the State’s

allegations except those alleging nonpayment of fees to be true and imposed the original

sentence of ten years’ imprisonment in the Texas Department of Criminal Justice—

Institutional Division. As discussed below, appellant’s court-appointed counsel has filed

a motion to withdraw accompanied by an Anders brief. See Anders v. California, 386

U.S. 738, 744 (1967). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

has filed a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of error upon which an appeal can be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief

need not specifically advance 'arguable' points of error if counsel finds none, but it must

provide record references to the facts and procedural history and set out pertinent legal

authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus

Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

2 In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court's judgment. Counsel has informed this Court, in writing, that counsel has:

(1) notified the appellant that counsel has filed an Anders brief and a motion to withdraw;

(2) provided the appellant with copies of both pleadings; (3) informed the appellant of his

right to file a pro se response,1 review the record preparatory to filing that response, and

seek discretionary review if the Court concludes that the appeal is frivolous; and (4)

provided the appellant with a form motion for pro se access to the appellate record,

lacking only the appellant’s signature and the date and including the mailing address for

the court of appeals, with instructions to file the motion within ten days. See Anders, 386

U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford, 813 S.W.2d at 510 n.3; see also In re

Schulman, 252 S.W.3d at 409 n.23. More than an adequate time has passed, and

appellant has not filed a pro se motion for access to the appellate record or a motion for

extension of time to do so. No pro se response was filed, and the State has also not filed

a brief.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the entire record and counsel’s brief,2 and we have

1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

2 Counsel informed us that he specifically considered: (1) whether the trial court had jurisdiction

3 found nothing that would arguably support an appeal. See id. 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 requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d

at 509. We have found no reversible error in the record. We accordingly affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80

(Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Within five days of the date of this Court’s opinion, counsel is ordered

to send a copy of this opinion and this Court’s judgment to appellant and to advise him of

his right to file a petition for discretionary review. 3 See TEX. R. APP. P. 48.4; see also In

over the case; (2) whether any of the trial court’s evidentiary rulings, if incorrect, rose to the level of reversible error; (3) whether there were any irregularities in the closing arguments; (4) whether the evidence was sufficient to support revocation; and (5) whether there were any irregularities in the sentence. Counsel concluded that none of these issues were meritorious, and we agree. 3 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.

4 re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.

App. 2006).

NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 5th day of February, 2015.