Davaris Dequain Marsh v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 09-13-00365-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00365-CR ____________________

DAVARIS DEQUAIN MARSH, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR29065 ________________________________________________________ _____________

MEMORANDUM OPINION In this case, the appellant’s court-appointed appellate counsel submitted a

brief in which counsel contends that no arguable grounds can be advanced in

Davaris Dequain Marsh’s appeal from his sentence for committing aggravated

robbery, enhanced because he had been convicted of committing prior second and

third degree felonies. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014)1

(authorizing an enhanced sentence range in cases where a defendant is convicted of 1 We cite to the current version of the statute as the subsequent amendments do not affect the outcome of this appeal. 1 a first, second, or third degree felony, when the defendant has previously been

convicted of any combination of two prior first, second, or third degree felonies), §

29.03(a)(1), (b) (West 2011) (indicating that aggravated robbery is a first degree

felony). Based on our review of the record, we agree that no arguable issues exist

to support Marsh’s appeal. See Anders v. California, 386 U.S. 738, 744 (1967).

In carrying out a plea bargain agreement, Marsh pled guilty to aggravated

robbery, a first degree felony. See Tex. Penal Code Ann. § 29.03(a)(1), (b). Under

the terms of Marsh’s plea agreement, the trial court deferred the adjudication of

Marsh’s guilt, placed Marsh on community supervision for ten years, and assessed

a fine of $1,000.00. Subsequently, the State filed a motion asking the trial court to

revoke its decision placing Marsh on community supervision. During the hearing

on the State’s motion, Marsh pled “true” to violating three of the terms of the trial

court’s community supervision order and “not true” to two other terms of the trial

court’s order. At the conclusion of an evidentiary hearing, the trial court found

three of the State’s allegations to be true. The trial court then granted the State’s

motion to revoke and sentenced Marsh to twenty-five years in prison.

On appeal, Marsh’s counsel filed a brief presenting counsel’s professional

evaluation of the record; in the brief, Marsh’s counsel concludes that Marsh’s

appeal is frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). We granted an extension of time to allow Marsh to file a

2 pro se brief. In response, Marsh filed a pro se brief, contending that counsel

rendered ineffective assistance at his revocation hearing by allowing him to plead

“true” to some of the allegations and that counsel failed to investigate the State’s

claims that he had committed additional offenses. Marsh’s claim of ineffective

assistance is not supported by the record before us.

Generally, trial courts may revoke a decision to place a defendant on

community supervision if the defendant violates any of the terms of a trial court’s

community supervision order. See Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. 1980). After reviewing the appellate record, the Anders brief filed by

Marsh’s counsel, and Marsh’s pro se response, we agree with counsel’s conclusion

that any appeal would be frivolous. Consequently, we need not order the

appointment of new counsel to re-brief Marsh’s appeal. Cf. Stafford v. State, 813

S.W.2d 503, 511 (Tex. Crim. App. 1991). We affirm the trial court’s judgment. 2

AFFIRMED.

______________________________ HOLLIS HORTON Justice Submitted on October 15, 2014 Opinion Delivered October 29, 2014 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

2 Marsh may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3