Daryl Christopher Simmons v. the State of Texas

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00049-CR

DARYL CHRISTOPHER SIMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2128689

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

A Hopkins County jury convicted Daryl Christopher Simmons of the third-degree-felony

offense of possession of a penalty group one controlled substance in an amount less than one

gram, in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (Supp.). After

Simmons pled true to the State’s punishment enhancement allegation, the trial court imposed the

jury’s assessed sentence of twelve years’ imprisonment. Simmons appeals.

Simmons’s attorney on appeal has filed a brief stating that she has reviewed the record

and has found no genuinely arguable issues that could be raised. The brief sets out the

procedural history of the case and summarizes the evidence elicited during the trial court

proceedings. Meeting the requirements of Anders v. California, counsel has provided a

professional evaluation of the record, demonstrating why there are no arguable grounds to be

advanced. Anders v. California, 386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex.

Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).

Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.

After having been provided a copy of counsel’s Anders brief, the motion to withdraw,

and a copy of the record, Simmons elected to file a pro se response.

Because Simmons has filed a pro se response, we

may determine that the appeal is wholly frivolous and issue an opinion explaining that [we have] reviewed the record and found no reversible error or [we] may determine 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.

2 Perez v. State, No. 06-22-00013-CR, 2022 WL 5292863, at *1 (Tex. App.—Texarkana Oct. 7,

2022, no pet.) (mem. op., not designated for publication) (citing Bledsoe v. State, 178 S.W.3d

824, 826–27 (Tex. Crim. App. 2005)). “In the latter instance, ‘only after the issues have been

briefed by new counsel may the court of appeals address the merits of any issues raised.’” Id.

(quoting Anders, 386 U.S. at 744). “If the court of appeals were to review the case and issue an

opinion that addressed and rejected the merits raised in a pro se response to an Anders brief, then

appellant would be deprived of the meaningful assistance of counsel.” Id. (citing Bledsoe, 178

S.W.3d at 827). We have reviewed Simmons’s pro se response and find no reason to remand

this case for the appointment of new counsel.

We have determined that this appeal is wholly frivolous. We have independently

reviewed the entire appellate record and, like counsel, have determined that no arguable issue

supports an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). In

the Anders context, once we determine that the appeal is without merit, we must affirm the trial

court’s judgment. Id.

Since we agree that this case presents no reversible error, we also, in accordance with

Anders, grant counsel’s request to withdraw from further representation of appellant in this case.

See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to

seek further review of this case by the Texas Court of Criminal Appeals, appellant 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 (1) must be filed within thirty days

from either the date of this opinion or the date on which the last timely motion for rehearing was

overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas

3 Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the

requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.

We affirm the judgment of the trial court.

Scott E. Stevens Justice

Date Submitted: December 7, 2022 Date Decided: December 14, 2022

Do Not Publish