Opinion issued December 31, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00240-CR ——————————— DEVONTE TERRELL ADAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 54th District Court McLennan County,1 Texas Trial Court Case No. 2020-1468-C2
MEMORANDUM OPINION
Appellant, Devonte Terrell Adams, appeals from his conviction for
aggravated assault with a deadly weapon. See TEX. PENAL CODE § 22.02(a)(2), (b). 1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Tenth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases between courts of appeals). We are unaware of any conflict between the precedent of the Court of Appeals for the Tenth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. Adams’s appointed counsel filed a motion to withdraw and an Anders brief.2 We
grant counsel’s motion and affirm.
Background
Adams was indicted for aggravated assault of a public servant, a first-degree
felony. See TEX. PENAL CODE § 22.02(a)(2), (b)(2). The State reduced the charge to
aggravated assault with a deadly weapon, a second-degree felony, and filed a
notice of intent to enhance Adams’s punishment based on his prior juvenile
adjudication for robbery.3 See id. § 22.02(a)(2), (b). A jury found Adams guilty of
aggravated assault with a deadly weapon. Adams elected for the trial court to
assess his punishment. After finding the enhancement allegation true, the trial court
sentenced Adams to twenty-five years’ confinement.
On appeal, Adams’s appointed counsel filed an Anders brief, stating that he
has found no arguable points of error to raise on appeal, and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 738 (1967). The Anders brief
2 See Anders v. California, 386 U.S. 738 (1967). 3 In 2018, a juvenile court found that Adams had engaged in delinquent conduct, specifically robbery, resulting in his commitment to a Texas Juvenile Justice Department facility. See TEX. PENAL CODE §§ 12.42(b) (providing that if it is proven during trial of second-degree felony that defendant has previously been finally convicted of felony—excluding state jail felony—then upon conviction for second-degree felony, defendant shall be punished as if he was convicted of first- degree felony), 12.42(f) (for purposes of subsection 12.42(b), adjudication by juvenile court that child engaged in delinquent conduct constituting felony offense, for which child is committed to Texas Juvenile Justice Department, is final felony conviction), 29.02(b) (robbery is second-degree felony). 2 meets the requirements of Anders by presenting a professional evaluation of the
record and detailing why there are no arguable, non-frivolous grounds for reversal.
Id. at 744; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978).
Adams has not filed a pro se brief, and the State waived its opportunity to file a
responsive brief.
Anders Procedures
When appointed counsel believes an appeal by a criminal defendant is
frivolous, counsel may file both a motion to withdraw and an Anders brief. In re
Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); Anders, 386 U.S. at 741–
42. An Anders brief reflects the fact that counsel has adequately researched the
case before deciding to withdraw. In re Schulman, 252 S.W.3d at 407. It sets out
counsel’s due diligence, informs the client, and provides a roadmap for the
appellate court’s review of the record. Id. at 407. It also assists the client by
providing citations to the record if he wishes to exercise his right to file a pro se
brief. Id. at 407–08. An Anders brief is appropriate only when counsel has
mastered the record and the evidence and determines that there are no sustainable
grounds for appeal. Banks v. State, 341 S.W.3d 428, 430 (Tex. App.—Houston [1st
Dist.] 2009, order), disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex.
App.—Houston [1st Dist.] Mar. 11, 2010, no pet.) (mem. op.). If counsel finds that
the appeal does contain potentially meritorious grounds, counsel must file a merits
3 brief with the court. In re Schulman, 252 S.W.3d at 407 n.9; Banks, 341 S.W.3d at
430; Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991).
If counsel determines that potential grounds for appeal exist, but that those
grounds would be frivolous, counsel must explain those grounds for appeal with
citations to applicable legal authority and relevant evidence. In re Schulman, 252
S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should “point out where
pertinent testimony may be found in the record, refer to pages in the record where
objections were made, the nature of the objection, the trial court’s ruling, and
discuss either why the trial court’s ruling was correct or why appellant was not
harmed by the ruling of the court.” High, 573 S.W.2d at 813. This confirms for the
appellate court that counsel has given due consideration to any potential ground for
appeal before dismissing it as frivolous. See In re Schulman, 252 S.W.3d at 407–09
(stating that courts of appeals will not grant motion to withdraw if Anders brief
does not show that record was carefully reviewed); High, 573 S.W.2d at 811
(describing importance of disclosing both legal authority and potential grounds for
appeal); Banks, 341 S.W.3d at 431.
Even when counsel believes that there are no grounds for appeal that might
persuade an appellate court, counsel must still file an Anders brief, directing the
court to the portions of the record that could have created error but did not. Banks,
341 S.W.3d at 431. Counsel must provide more than just a conclusory statement
4 that no bases for appeal exist. In re Schulman, 252 S.W.3d at 406–07; see Anders,
386 U.S. at 742. While the appellate court has a supervisory role, we should not
have to scour the record to confirm counsel has conducted a thorough review.
Banks, 341 S.W.3d at 431. If we conclude, after conducting an independent
review, that “appellate counsel has exercised professional diligence in assaying the
record for error” and agree that the appeal is frivolous, we should grant counsel’s
motion to withdraw and affirm the trial court’s judgment. See Mitchell v. State, 193
S.W.3d 153, 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Bledsoe v.
State, 178 S.W.3d 824, 826, 828 (Tex. Crim. App. 2005)).
Analysis
In his Anders brief, counsel has outlined why there are no arguable, non-
frivolous grounds to reverse the trial court’s judgment. Counsel specifically
discussed and briefed: (1) the trial court’s jurisdiction over the matter, (2) the
sufficiency of the indictment, (3) the sufficiency of the evidence supporting
Adams’s conviction for aggravated assault with a deadly weapon, (4) the trial
court’s denial of Adams’s request for a jury instruction on deadly conduct as a
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Opinion issued December 31, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00240-CR ——————————— DEVONTE TERRELL ADAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 54th District Court McLennan County,1 Texas Trial Court Case No. 2020-1468-C2
MEMORANDUM OPINION
Appellant, Devonte Terrell Adams, appeals from his conviction for
aggravated assault with a deadly weapon. See TEX. PENAL CODE § 22.02(a)(2), (b). 1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Tenth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases between courts of appeals). We are unaware of any conflict between the precedent of the Court of Appeals for the Tenth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. Adams’s appointed counsel filed a motion to withdraw and an Anders brief.2 We
grant counsel’s motion and affirm.
Background
Adams was indicted for aggravated assault of a public servant, a first-degree
felony. See TEX. PENAL CODE § 22.02(a)(2), (b)(2). The State reduced the charge to
aggravated assault with a deadly weapon, a second-degree felony, and filed a
notice of intent to enhance Adams’s punishment based on his prior juvenile
adjudication for robbery.3 See id. § 22.02(a)(2), (b). A jury found Adams guilty of
aggravated assault with a deadly weapon. Adams elected for the trial court to
assess his punishment. After finding the enhancement allegation true, the trial court
sentenced Adams to twenty-five years’ confinement.
On appeal, Adams’s appointed counsel filed an Anders brief, stating that he
has found no arguable points of error to raise on appeal, and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 738 (1967). The Anders brief
2 See Anders v. California, 386 U.S. 738 (1967). 3 In 2018, a juvenile court found that Adams had engaged in delinquent conduct, specifically robbery, resulting in his commitment to a Texas Juvenile Justice Department facility. See TEX. PENAL CODE §§ 12.42(b) (providing that if it is proven during trial of second-degree felony that defendant has previously been finally convicted of felony—excluding state jail felony—then upon conviction for second-degree felony, defendant shall be punished as if he was convicted of first- degree felony), 12.42(f) (for purposes of subsection 12.42(b), adjudication by juvenile court that child engaged in delinquent conduct constituting felony offense, for which child is committed to Texas Juvenile Justice Department, is final felony conviction), 29.02(b) (robbery is second-degree felony). 2 meets the requirements of Anders by presenting a professional evaluation of the
record and detailing why there are no arguable, non-frivolous grounds for reversal.
Id. at 744; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978).
Adams has not filed a pro se brief, and the State waived its opportunity to file a
responsive brief.
Anders Procedures
When appointed counsel believes an appeal by a criminal defendant is
frivolous, counsel may file both a motion to withdraw and an Anders brief. In re
Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); Anders, 386 U.S. at 741–
42. An Anders brief reflects the fact that counsel has adequately researched the
case before deciding to withdraw. In re Schulman, 252 S.W.3d at 407. It sets out
counsel’s due diligence, informs the client, and provides a roadmap for the
appellate court’s review of the record. Id. at 407. It also assists the client by
providing citations to the record if he wishes to exercise his right to file a pro se
brief. Id. at 407–08. An Anders brief is appropriate only when counsel has
mastered the record and the evidence and determines that there are no sustainable
grounds for appeal. Banks v. State, 341 S.W.3d 428, 430 (Tex. App.—Houston [1st
Dist.] 2009, order), disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex.
App.—Houston [1st Dist.] Mar. 11, 2010, no pet.) (mem. op.). If counsel finds that
the appeal does contain potentially meritorious grounds, counsel must file a merits
3 brief with the court. In re Schulman, 252 S.W.3d at 407 n.9; Banks, 341 S.W.3d at
430; Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991).
If counsel determines that potential grounds for appeal exist, but that those
grounds would be frivolous, counsel must explain those grounds for appeal with
citations to applicable legal authority and relevant evidence. In re Schulman, 252
S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should “point out where
pertinent testimony may be found in the record, refer to pages in the record where
objections were made, the nature of the objection, the trial court’s ruling, and
discuss either why the trial court’s ruling was correct or why appellant was not
harmed by the ruling of the court.” High, 573 S.W.2d at 813. This confirms for the
appellate court that counsel has given due consideration to any potential ground for
appeal before dismissing it as frivolous. See In re Schulman, 252 S.W.3d at 407–09
(stating that courts of appeals will not grant motion to withdraw if Anders brief
does not show that record was carefully reviewed); High, 573 S.W.2d at 811
(describing importance of disclosing both legal authority and potential grounds for
appeal); Banks, 341 S.W.3d at 431.
Even when counsel believes that there are no grounds for appeal that might
persuade an appellate court, counsel must still file an Anders brief, directing the
court to the portions of the record that could have created error but did not. Banks,
341 S.W.3d at 431. Counsel must provide more than just a conclusory statement
4 that no bases for appeal exist. In re Schulman, 252 S.W.3d at 406–07; see Anders,
386 U.S. at 742. While the appellate court has a supervisory role, we should not
have to scour the record to confirm counsel has conducted a thorough review.
Banks, 341 S.W.3d at 431. If we conclude, after conducting an independent
review, that “appellate counsel has exercised professional diligence in assaying the
record for error” and agree that the appeal is frivolous, we should grant counsel’s
motion to withdraw and affirm the trial court’s judgment. See Mitchell v. State, 193
S.W.3d 153, 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Bledsoe v.
State, 178 S.W.3d 824, 826, 828 (Tex. Crim. App. 2005)).
Analysis
In his Anders brief, counsel has outlined why there are no arguable, non-
frivolous grounds to reverse the trial court’s judgment. Counsel specifically
discussed and briefed: (1) the trial court’s jurisdiction over the matter, (2) the
sufficiency of the indictment, (3) the sufficiency of the evidence supporting
Adams’s conviction for aggravated assault with a deadly weapon, (4) the trial
court’s denial of Adams’s request for a jury instruction on deadly conduct as a
lesser-included offense, (5) the State’s proof of the enhancement allegation, and (6)
the appropriateness of the punishment imposed. Counsel certified that he mailed
Adams copies of the motion to withdraw, Anders brief, clerk’s record, and
reporter’s record. He also informed Adams of his right to file a response. See In re
5 Schulman, 252 S.W.3d at 408–09. Adams did not file a pro se brief, and the State
waived its opportunity to file a responsive brief.
We have scrutinized counsel’s Anders brief, the State’s waiver of its right to
respond to the Anders brief, and the appellate record. We agree with counsel that
there are no non-frivolous grounds for appeal. See Bledsoe, 178 S.W.3d at 826–28.
Conclusion
Accordingly, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.4 See TEX. R. APP. P. 43.2(a). Counsel must immediately send the
required notice and file a copy of that notice with the Clerk of this Court. See TEX.
R. APP. P. 6.5(c).
Amparo Monique Guerra Justice
Panel consists of Justices Goodman, Guerra, and Gunn.
Do not publish. TEX. R. APP. P. 47.2(b).
4 Appointed counsel still has a duty to inform Adams of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 6