Donald Ray Lewis v. State

• Court: Court of Appeals of Texas
• Decided: March 21, 2017
• Docket: 01-16-00261-CR
• Status: Published

Opinion

Opinion issued March 21, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-16-00261-CR ——————————— DONALD RAY LEWIS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1485045

MEMORANDUM OPINION

After a jury trial, Donald Ray Lewis was found guilty of the offense of

aggravated assault of a family member and was sentenced to 35 years’ incarceration

in the Institutional Division of the Texas Department of Criminal Justice. Lewis

timely filed a notice of appeal. Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with a brief, stating that the record presents no reversible error and 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 us with references to the record and legal

authority. 386 U.S. 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 is unable to advance any grounds of error 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.).

Counsel advised Lewis of his right to access to the record and provided Lewis

with a form motion for access to the record. Counsel further advised Lewis of his

right to file a pro se response to the Anders brief. The deadline for Lewis to file his

pro se response was December 28, 2016. Appellant filed no response and requested

no extension of time.

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

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

for review, and 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

2 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–

27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court

determines whether arguable grounds exist by reviewing entire record). We note that

an appellant may challenge a holding that there are no arguable grounds for appeal

by filing a petition for discretionary review in the Texas Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.1 Attorney Kevin P. Keating must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

1 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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3