Donald Frank McMath v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 21, 2024
• Docket: 09-23-00072-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00072-CR __________________

DONALD FRANK MCMATH, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A220319-R __________________________________________________________________

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).

1 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). 2 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Submitted on January 10, 2024 Opinion Delivered February 21, 2024 Do Not Publish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. 3