Demorian Dashon Scott v. State

• Court: Court of Appeals of Texas
• Decided: August 5, 2009
• Docket: 10-08-00168-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00168-CR

Demorian Dashon Scott,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2007-1939-C1

MEMORANDUM  Opinion

            Demorian Dashon Scott was found guilty of murder by a jury.  Tex. Pen. Code Ann. § 19.02 (Vernon 2003).  The jury assessed punishment at confinement in the Texas Department of Criminal Justice—Institutional Division for life.  The trial court accepted the jury’s verdicts and sentenced Scott to confinement for life.  We affirm.

Scott's appellate counsel filed an Anders brief and a motion to withdraw as counsel.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).  Counsel concludes that the appeal is frivolous.

Counsel informed Scott of the right to file a pro se brief, and Scott has filed one.  However, we review Scott’s brief solely to determine if there are any arguable grounds for appeal.  Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).  See also In re Schulman, 252 S.W.3d 403, 409 n. 23 (Tex. Crim. App. 2008).

Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel.  See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d at 407.

In reviewing an Anders appeal, we must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous."  Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref'd).  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, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).  Arguments are frivolous when they "cannot conceivably persuade the court."  McCoy, 486 U.S. at 436.  An appeal is not wholly frivolous when it is based on "arguable grounds."  Stafford, 813 S.W.2d at 511.

After a review of the briefs and the entire record in this appeal, we determine the appeal to be wholly frivolous.  See Bledsoe v. State, 178 S.W.3d at 826-27.  Accordingly, we affirm the trial court's judgment.

Should Scott wish to seek further review of this case by the Texas Court of Criminal Appeals, Scott must either retain an attorney to file a petition for discretionary review or Scott must 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 that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.  See In re Schulman, 252 S.W.3d 403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for publication).

Additionally, counsel must send Scott a copy of our decision, notify Scott of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4.  Tex. R. App. P. 48.4; see In re Schulman, 252 S.W.3d at 409 n. 22.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed August 5, 2009

Do not publish

[CRPM]