David Peek v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2016
• Docket: 02-16-00024-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00024-CR

DAVID PEEK APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1428351R

MEMORANDUM OPINION1

Appellant David Peek appeals his third-degree felony conviction and ten-

year sentence for stalking.

Appellant was charged in a single indictment with two counts of stalking,

each enhanced by a prior stalking conviction. See Tex. Penal Code Ann.

§ 42.072 (West Supp. 2016). The indictment also contained a repeat offender

notice. Appellant pled guilty to the second count in exchange for the State’s

1 See Tex. R. App. P. 47.4. agreement to waive the first count, the enhancement, and the repeat offender

notice, thus reducing the punishment range and maximum confinement and

creating a charge-bargain agreement between the State and appellant. See

Shankle v. State, 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003); see also Tex.

Penal Code Ann. §§ 12.42(a), (b) (West Supp. 2016) (increasing punishment for

a third-degree felony to a second-degree felony and punishment for a second-

degree felony to a first-degree felony if defendant has previously been convicted

of a felony); 42.072(b)(1) (elevating stalking from third-degree felony to a second-

degree felony if defendant has previously been convicted of an offense under

section 42.072 or under the law of another state that contains elements

substantially similar to the elements of an offense under section 42.072). After a

punishment hearing, the trial court found appellant guilty and assessed his

punishment at ten years’ confinement.

Appellant’s court-appointed appellate counsel has filed a motion to

withdraw and a brief in support of that motion. Counsel avers that in his

professional opinion, the appeal is frivolous. Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of

the record and demonstrating why there are no arguable grounds for relief. See

386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with Kelly v. State, the

record demonstrates that appellant was notified of counsel’s motion to withdraw,

provided a copy of the motion and brief, informed of his right to file a pro se

response, and informed of his right to seek discretionary review should this court

2 hold the appeal is frivolous, and concrete measures were taken to facilitate

appellant’s review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim.

App. 2014). This court informed appellant that he could file a pro se response,

which appellant has done. The State submitted a letter informing this court that it

would not be providing briefing but reserved the right to do so if this court found

an arguable ground for appeal.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, this

court is obligated to undertake an independent examination of the record. See

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,

904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only then may

we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–

83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record, counsel’s brief, and appellant’s

pro se response, and we agree with counsel that this appeal is wholly frivolous

and without merit; we find nothing in the record that might arguably support the

appeal.2 See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005);

2 Although this case involved a plea bargain, because the trial court counseled appellant that he had the right of appeal and because the certification of appellant’s right of appeal indicates that he has the right of appeal, we conclude that the trial court gave appellant permission to appeal. See Tex. R. App. P. 25.2(a)(2), (d); Aguirre v. State, No. 02-12-00509-CR, 2013 WL 6046121, at *1 (Tex. App.—Fort Worth Nov. 14, 2013, no pet.) (mem. op., not designated for publication); Craven v. State, Nos. 02-11-00089-CR, 02-11- 00090-CR, 2012 WL 2036449, at *1 (Tex. App.—Fort Worth June 7, 2012, pet. ref’d) (mem. op., not designated for publication).

3 see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We

grant counsel’s motion to withdraw, and we affirm the trial court’s judgment.

/s/ Bill Meier BILL MEIER JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2016