Domensis Deshawn Nutall v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2010
• Docket: 10-09-00209-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00209-CR

DOMENSIS DESHAWN NUTALL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 08-02291-CRF-272

MEMORANDUM OPINION

Domensis Deshawn Nutall pled guilty without the benefit of a plea bargain to

the offense of sexual assault. TEX. PENAL CODE ANN. § 22.011 (Vernon Supp. 2009). The

trial court sentenced Nutall to 18 years in prison. We affirm.

Nutall’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. Nutall was informed of the right to file

a pro se response to his counsel’s Anders brief but has not done so. 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 403, 407 (Tex. Crim. App. 2008).

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 824, 826-27 (Tex. Crim.

App. 2005). Accordingly, we affirm the trial court's judgment.

Should Nutall wish to seek further review of this case by the Texas Court of

Criminal Appeals, Nutall must either retain an attorney to file a petition for

discretionary review or Nutall 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

Nutall v. State Page 2 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 also 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).

Counsel's request that he be allowed to withdraw from representation of Nutall

is granted. Additionally, counsel must send Nutall a copy of our decision, notify Nutall

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 also 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 April 21, 2010 Do not publish [CR25]

Nutall v. State Page 3