David Earl Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 7, 2023
• Docket: 10-22-00264-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00264-CR

DAVID EARL JOHNSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2020-567-C1

MEMORANDUM OPINION

A jury found David Earl Johnson guilty of the felony offense of murder. See TEX.

PENAL CODE ANN. § 19.02. The trial court assessed Johnson’s punishment, enhanced by

prior convictions, at a life sentence. See id. §§ 12.32, 12.42(c)(1). This appeal ensued. We

affirm the trial court’s judgment.

Johnson’s appointed counsel filed a motion to withdraw and an Anders brief in

support of the motion asserting that he has diligently reviewed the appellate record and

that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Counsel’s brief reflects a professional evaluation of the record for error and his

compliance with the other duties of appointed counsel. We conclude that counsel has

performed the duties required of appointed counsel. See id. at 744; High v. State, 573

S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978); Kelly v. State, 436 S.W.3d 313,

319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407–09 (Tex. Crim. App.

2008).

In reviewing an Anders appeal, we must, “after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744;

see also Penson v. Ohio, 488 U.S. 75, 80, 109 (1988); Stafford v. State, 813 S.W.2d 503, 509–11

(Tex. Crim. App. 1991). An appeal is “wholly frivolous” or “without merit” when it

“lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10, 108

(1988). In this case, Johnson filed a pro se response to the Anders brief arguing that he

received ineffective assistance of counsel at the trial court; the State then waived its

right to file a brief. After a review of the briefs and the entire record in this appeal, we

have determined the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824,

826–28 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s judgment.

Counsel’s motion to withdraw is granted.

MATT JOHNSON Justice

Johnson v. State Page 2 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed June 7, 2023 Do not publish [CRPM]

Johnson v. State Page 3