DJ Christopher Lowe v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2016
• Docket: 01-14-00158-CR
• Status: Published

Opinion

Opinion issued April 14, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00158-CR ——————————— DJ CHRISTOPHER LOWE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 400th District Court Fort Bend County, Texas Trial Court Cause No. 10-DCR-055397

MEMORANDUM OPINION Appellant, DJ Christopher Lowe, pleaded guilty to the first-degree felony

offense of aggravated sexual assault of a child under fourteen, without an agreed

recommendation from the State as to punishment. See TEX. PENAL CODE ANN.

§§22.021(a)(1)(B)(iii), (a)(2)(B), (e) (West Supp. 2015). The trial court withheld a finding of guilt and ordered a pre-sentence investigation (“PSI”) report. Following

a PSI report and hearing, the trial court found appellant guilty as charged, and

assessed his punishment at seventy-five years’ confinement on February 7, 2014.1

This sentence is within the applicable sentencing range. See id. § 12.32(a) (West

Supp. 2015). The trial court certified that this was not a plea-bargain case, and that

appellant had the right of appeal as to the sentence. See TEX. R. APP. P. 25.2(a)(2).

Appellant prematurely filed a notice of appeal, which is deemed timely filed on

February 7, 2014, the date the appealable judgment was signed. See TEX. R. APP. P.

27.1(b).

Appellant’s appointed counsel has filed a motion to withdraw, along with an

Anders brief stating that the record presents no reversible error and that, therefore,

the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,

87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting

a professional evaluation of the record and supplying this Court with references to

the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v.

State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of error

1 This sentence was set to run concurrently with appellant’s 511-month federal sentence for various charges of possession of child pornography to which he pleaded guilty to before being sentenced in state court. 2 that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v.

State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Appellant’s counsel has informed us that he has delivered a copy of the motion

to withdraw and Anders brief to appellant and informed him of his right to file a

response and access to the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008). Furthermore, a copy of the record has been sent to appellant for

review. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant

has not filed any pro se response to his counsel’s Anders brief.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing

court must determine whether arguable grounds for review exist); Bledsoe v. State,

178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address

merits of each claim raised in Anders brief or pro se response after determining there

are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may

challenge a holding that there are no arguable grounds for appeal by filing a petition

3 for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178

S.W.3d at 827 n.6.

CONCLUSION Accordingly, we affirm the judgment of the trial court and grant counsel’s

motion to withdraw. See TEX. R. APP. P. 43.2(a).2 Attorney Mark W. Racer 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). We dismiss any other pending motions as

moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).

2 Appointed counsel still has a duty to inform appellant 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, 178 S.W.3d at 826–27. 4