Eric Cadoree Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 4, 2023
• Docket: 01-22-00321-CR
• Status: Published

Opinion

Opinion issued April 4, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00321-CR ——————————— ERIC CADOREE, JR., Appellant V. STATE OF TEXAS, Appellee

On Appeal from the 179th Judicial District Court Harris County, Texas Trial Court Case No. 1624107

MEMORANDUM OPINION

Appellant, Eric Cadoree, Jr., appeals the trial court’s judgment adjudicating

him guilty of the felony offense of aggravated robbery with a deadly weapon and

sentencing him to eight years’ confinement.1 Cadoree’s appointed counsel on appeal

1 See TEX. PENAL CODE § 29.03. has submitted an Anders brief,2 declaring there are no nonfrivolous bases for appeal.

Cadoree did not file a pro se brief, and the State waived its right to respond to the

Anders brief. We affirm.

Background

Cadoree pleaded guilty to the offense of aggravated robbery with a deadly

weapon in July 2021. The trial court deferred a finding of guilt until a presentence

investigation report was completed. A presentence investigation hearing was held

on April 20, 2022, and Cadoree’s guilty plea was filed. At the hearing, the State put

on two witnesses, L. Jones and K. Rhone, and offered Cadoree’s plea paperwork and

the presentence investigation report as exhibits. Cadoree also testified. After closing

arguments, the trial court sentenced Cadoree to eight years’ confinement. Cadoree

filed a notice of appeal that same day. His appointed trial counsel moved for and was

granted permission to withdraw. The trial court appointed appellate counsel for

Cadoree two days later. On appeal, Cadoree’s appellate counsel moves to withdraw

and has filed an Anders brief stating that there are no nonfrivolous issues for appeal.

See Anders v. California, 386 U.S. 738, 741–42 (1967).

Anders Procedures

When appointed counsel believes an appeal by a criminal defendant is

frivolous, counsel may file both a motion to withdraw and an Anders brief. In re

2 See Anders v. California, 386 U.S. 738, 741–42 (1967). 2 Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); Anders, 386 U.S. at 741–

42. An Anders brief reflects the fact that counsel has adequately researched the case

before deciding to withdraw. In re Schulman, 252 S.W.3d at 407. It sets out counsel’s

due diligence, informs the client, and provides a roadmap for the appellate court’s

review of the record. Id. It also assists the client by providing citations to the record

if he wishes to exercise his right to file a pro se brief. Id. at 407–08. An Anders brief

is appropriate only when counsel has mastered the record and the evidence and

determines that there are no sustainable grounds for appeal. Banks v. State, 341

S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2009, order), disp. on merits, No.

01-08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston [1st Dist.] Mar. 11,

2010, no pet.) (mem. op., not designated for publication) If counsel finds that the

appeal contains potentially meritorious grounds, counsel must file a merits brief with

the court. In re Schulman, 252 S.W.3d at 406 n.9; Banks, 341 S.W.3d at 430; see

Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991).

If counsel determines that potential grounds for appeal exist but that those

grounds would be frivolous, counsel must explain those grounds for appeal with

citations to applicable legal authority and to pertinent evidence. In re Schulman, 252

S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should “point out where pertinent

testimony may be found in the record, refer to pages in the record where objections

were made, the nature of the objection, the trial court’s ruling, and discuss either

3 why the trial court’s ruling was correct or why the appellant was not harmed by the

ruling of the court.” High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

The purpose of this requirement is to convince the courts of appeals that counsel has

given due consideration to any potential ground for appeal before dismissing it as

frivolous. See In re Schulman, 252 S.W.3d at 407–09 (stating courts of appeals will

not grant motion to withdraw if Anders brief does not show that record was carefully

reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing both legal

authority and potential grounds for appeal); Banks, 341 S.W.3d at 431 (same).

Even when counsel believes that there are no grounds that might convince an

appellate court, counsel must still file an Anders brief, and the Anders brief must

direct the court of appeals to the portions of the record that could have created error

but did not. Banks, 314 S.W.3d at 431. Counsel may not provide a mere conclusory

statement that no grounds for appeal exist. In re Schulman, 252 S.W.3d at 406–07;

see Anders, 386 U.S. at 742. While the courts of appeals have a supervisory role,

they should not have to pour over the record to determine counsel has completed a

thorough review of the record. Banks, 341 S.W.3d at 431. If we conclude, after

conducting an independent review, that “appellate counsel has exercised

professional diligence in assaying the record for error” and agree that the appeal is

frivolous, we should grant counsel’s motion to withdraw, Meza v. State, 206 S.W.3d

4 684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s judgment. In re

Schulman, 252 S.W.3d at 409.

In this Anders brief, counsel has discussed why this appeal is meritless and

frivolous because the record contains no reversible error. Counsel specifically

discussed and briefed: (1) Cadoree’s right to appeal; (2) the admonishments given

to Cadoree; (3) Cadoree’s pretrial motions; (4) Cadoree’s guilty plea; (5) Cadoree’s

punishment; (6) the judgment of conviction; and (7) an ineffective assistance

counsel claim. Cadoree did not file a pro se brief. The State filed a waiver declining

to formally respond to the Anders brief.

After an appellant’s counsel moves to withdraw because an appeal is frivolous

and fulfills the Anders requirements, we must independently examine the record to

see if there is any arguable ground that might be raised on an appellant’s behalf.

Stafford, 813 S.W.2d at 511. When performing this evaluation, we consider the

record, the arguments raised in the Anders brief, and any issues that an appellant

might raise in a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward

may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–

83 (1988).

We have scrutinized counsel’s Anders brief, the State’s waiver of its right to

respond to the Anders brief, and the appellate record. We agree with counsel that

5 this appeal is meritless and frivolous. Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005).

Conclusion

Accordingly, we grant counsel’s motion to withdraw and affirm the trial

court’s judgment.

Amparo Guerra Justice

Panel consists of Justices Kelly, Guerra, and Farris.

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