Derrick Massey v. State

• Court: Court of Appeals of Texas
• Decided: March 30, 2017
• Docket: 02-16-00096-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00096-CR

DERRICK MASSEY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY TRIAL COURT NO. F-2014-1164-B

MEMORANDUM OPINION1

Appellant Derrick Massey appeals his third-degree felony conviction and

forty-five year sentence for driving while intoxicated (DWI).2 We affirm.

A grand jury indicted appellant with committing DWI, and the indictment

alleged, for jurisdictional and enhancement purposes, that he had four prior

1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2016). convictions for that offense, including two felonies.3 Appellant retained counsel.

At trial, he pled not guilty but pled true to the jurisdictional allegations that he had

been convicted of two prior DWIs. After receiving the parties’ evidence and

arguments, a jury deliberated for less than an hour and found appellant guilty.

Appellant chose the trial court to decide his punishment, and he pled true to the

indictment’s felony enhancement paragraphs. After receiving more evidence and

arguments, the trial court sentenced appellant to forty-five years’ confinement.

The trial court appointed counsel to represent appellant on appeal, and he

brought this appeal.

Appellant’s appointed appellate counsel has filed a motion to withdraw and

a brief under Anders v. California, representing that there are “no non-frivolous

grounds for appeal.” 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967).

Counsel’s brief and motion meet the requirements of Anders by presenting a

professional evaluation of the record and demonstrating why there are no

arguable grounds for relief. See id.; In re Schulman, 252 S.W.3d 403, 406–12

(Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders). We

gave appellant an opportunity to file a pro se response to counsel’s brief, and he

did so. The State has not filed a brief.

3 Two of appellant’s prior DWI convictions served to qualify this offense as a third-degree felony, and his two prior DWI felony convictions raised his punishment range for this offense to a minimum of twenty-five years’ confinement. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2016), § 49.09(b)(2).

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

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

must independently examine the record. See Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). 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. We agree with counsel that this appeal is frivolous and without

merit; we find nothing in the record that might arguably support the appeal. See

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

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

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

/s/ Terrie Livingston

TERRIE LIVINGSTON CHIEF JUSTICE

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

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

DELIVERED: March 30, 2017