Donald Frank McMath v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00072-CR

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DONALD FRANK MCMATH, Appellant V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 128th District Court Orange County, Texas

Trial Cause No. A220319-R

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MEMORANDUM OPINION

Donald Frank McMath appeals his conviction for sexual performance by a child, a first-degree felony. 1 After filing the notice of appeal, the trial court appointed an attorney to represent McMath in his

1See Tex. Penal Code Ann. § 43.25(c).

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appeal. The attorney discharged his responsibilities to McMath by filing an Anders brief. 2 In the brief, McMath’s attorney represents there are no arguable reversible errors to be addressed in McMath’s appeal. 3 The brief the attorney filed contains a professional evaluation of the record. In the brief, McMath’s attorney explains why, under the record in McMath’s case, no arguable issues exist to reverse the trial court’s judgment.4 McMath’s attorney also stated that he sent McMath a copy of the brief and the record. When the brief was filed, the Clerk of the Ninth Court of Appeals notified McMath, by letter, that he could file a pro se brief or response with the Court on or before November 7, 2023. McMath, however, failed to respond.

When an attorney files an Anders brief, we are required to independently examine the record and determine whether the attorney assigned to represent the defendant has a non-frivolous argument that would support the appeal. 5 After reviewing the clerk’s record, the

2See Anders v. California, 386 U.S. 738, 744 (1967).

3See id.; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

4Id.

5Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at

744).

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reporter’s record, and the attorney’s brief, we agree there are no arguable grounds to support the appeal. 6 Thus, it follows the appeal is frivolous.7 For that reason, we need not require the trial court to appoint another attorney to re-brief the appeal. 8 The trial court’s judgment is affirmed.

AFFIRMED.

HOLLIS HORTON

Justice

Submitted on January 10, 2024 Opinion Delivered February 21, 2024 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

6See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.

2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”).

7Id. at 826.

8See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

McMath may challenge our decision in the case by filing a petition for discretionary review. See Tex. R. App. P. 68.