Floyd Stevenson, Sr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 25, 2024
• Docket: 05-23-00820-CR
• Status: Published

Opinion

Affirmed and Opinion Filed November 25, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00820-CR

FLOYD STEVENSON, SR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 075297

MEMORANDUM OPINION Before Justices Partida-Kipness, Goldstein, and Miskel Opinion by Justice Partida-Kipness Appellant Floyd Stevenson, Sr. appeals his conviction of driving while

intoxicated, third or more, for which he was sentenced to life imprisonment. See

TEX. PENAL CODE § 49.09(b). We affirm.

BACKGROUND On April 28, 2022, Stevenson was arrested in Sherman, Texas for driving

while intoxicated. He was later charged by indictment with driving while

intoxicated, third or more, with enhancements for two prior felony convictions.

Because of the enhancements, his range of punishment became 25 years to life in prison. Following a four-day jury trial, the jury found Stevenson guilty of the offense

of “Driving While Intoxicated 3rd or More” as charged in the indictment and

assessed punishment at life imprisonment. The trial court later appointed Stevenson

appellate counsel. In this Court, Stevenson’s appellate counsel filed an Anders1 brief

and motion to withdraw as counsel. Stevenson did not file a pro se response, and the

State has not filed a brief.

APPLICABLE LAW In Anders v. California, 386 U.S. 738 (1967), the Supreme Court outlined a

procedure to ensure an indigent criminal defendant’s right to counsel on appeal is

honored when his or her appointed attorney concludes the appeal is without merit.

Arevalos v. State, 606 S.W.3d 912, 914–15 (Tex. App.—Dallas 2020, no pet.). If the

attorney concludes the appeal is wholly frivolous, he or she should request

permission to withdraw, simultaneously filing a brief that refers to anything in the

record that might arguably support the appeal. Id. at 915. This “Anders brief” must

satisfy the appellate court that the appointed attorney’s motion to withdraw is based

on a conscientious and thorough review of both the record and the law. Id.

Underlying the Anders procedure is the constitutional requirement of

substantial equality and fair process, which can only be attained if appellate counsel

acts in the role of an active advocate on behalf of his client. See Anders, 386 U.S. at

1 An Anders brief is a brief filed in support of an appointed attorney’s motion to withdraw as appellate counsel when the attorney has concluded, after conscientious examination of the entire record, that the appeal is frivolous. Anders v. California, 386 U.S. 738, 744 (1967). –2– 744. “Ultimately, an appropriate Anders brief provides the court of appeals with an

assurance of integrity in the criminal proceedings in the trial courts that the court of

appeals supervises.” Choice v. State, No. 05-19-00178-CR, 2020 WL 3166743, at

*1 (Tex. App.—Dallas June 15, 2020, no pet.) (mem. op., not designated for

publication).

To that end, an Anders brief must “discuss the evidence adduced at the trial,

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 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). “An Anders brief must ‘contain a professional evaluation of the

record demonstrating why, in effect, there are no arguable grounds to be advanced.’”

In re N.F.M., 582 S.W.3d 539, 541 (Tex. App.—San Antonio 2018, no pet.) (quoting

High, 573 S.W.2d at 812). An Anders brief must also “demonstrate that counsel has

conscientiously examined the record and determined that the appeal is so frivolous

that the appellant is not entitled to counsel on appeal. A proper Anders brief therefore

must contain references to the record, citations to authority, and legal analysis.” Id.

at 541–42 (quoting Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio

1997, order) (per curiam)). The Anders brief must provide the appellate court “with

a roadmap for their review of the record because the court itself must be assured that

–3– the attorney has made a legally correct determination that the appeal is frivolous.”

In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

At a minimum, an Anders brief must show counsel analyzed the validity of

the indictment, the sufficiency of the evidence, the admissibility of the evidence of

appellant’s guilt, the validity of the punishment assessed, and the effectiveness of

trial counsel. Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.—Dallas 1995, no

pet.). Analysis requires counsel cite and discuss legal authority supporting counsel’s

conclusions. See Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex. Crim. App. 1991);

Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.—Waco 1994, pet. ref’d); see also

Anders, 386 U.S. at 745 (explaining an Anders brief assists the court’s review

“because of the ready references not only to the record, but also to the legal

authorities as furnished [the reviewing court] by counsel”).

When filing an Anders brief, the appointed attorney must also fulfill the

following functions:

 Notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each;

 Inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response;

 Inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous; and

 Take concrete measures to initiate and facilitate the process of actuating his client’s right to review the appellate record, if that is what his client wishes.

Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). –4– After appointed counsel files a motion to withdraw on the ground that an

appeal is frivolous, we are obligated to undertake an independent examination of the

record to determine whether there is any arguable ground that may be raised.

Stafford, 813 S.W.2d at 511. If we conclude, after conducting an independent

review, that “appellate counsel has exercised professional diligence in assaying the

record for error” and agree the appeal is frivolous, we should grant counsel’s motion

to withdraw and affirm the trial court’s judgment. Arevalos, 606 S.W.3d at 915

(quoting Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006); citing In re

Schulman, 252 S.W.3d at 409; and then citing Crowe v. State, 595 S.W.3d 317, 319

(Tex. App.—Dallas 2020, no pet.)); see also Penson v. Ohio, 488 U.S. 75, 82–83

(1988) (appellate court “should not have acted on the motion to withdraw before it

made its own examination of the record to determine whether counsel’s evaluation

of the record was sound.”).

ANALYSIS Stevenson’s counsel has filed a motion to withdraw and a brief under Anders

v. California, 386 U.S. 738, 744–45 (1967). The motion is supported by a brief in

which counsel professionally and conscientiously examines the record and

applicable law, states he has found no grounds for appeal with potential merit, and

concludes this appeal is frivolous. In the Anders brief, counsel sets out the evidence

adduced at trial, addresses the lack of pretrial motions, discusses the validity of the

indictment, confirms the accuracy of the jury instructions, notes the sentence

–5– assessed was within the range of punishment for the charged offense, as enhanced,

and states a motion for new trial was overruled by operation of law. The Anders brief

also points out where pertinent testimony may be found in the record, refers to pages

in the record where substantive objections were made, the nature of the objection,

the trial court’s ruling, and discusses either why the trial court’s ruling was correct

or why Stevenson was not harmed by the ruling of the court. Appellate counsel

ultimately concluded there are no non-frivolous issues for appellate review. We

conclude the brief and motion meet the requirements of Anders by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. See Stafford, 813 S.W.2d at 510 n.3; see also High, 573 S.W.2d

at 812–13.

The brief and motion also confirm counsel complied with Kelly v. State, by

(1) notifying Stevenson of the motion to withdraw; (2) providing him with copies of

the motion, the brief, and the record; (3) informing him of his right to file a pro se

response; and (4) informing him of his right to seek discretionary review should this

court hold the appeal frivolous. See Kelly, 436 S.W.3d at 319 (noting appellant has

right to file pro se response to Anders brief filed by counsel). We also advised

Stevenson of his right to file a pro se response and granted Robinson’s motion for

an extension of time to file a pro re response. See id. No response has been filed. See

id.

–6– As required by Anders, appellate counsel advanced three potentially arguable

issues and then explains why they are without merit. Two of these issues are related

to the admission of evidence and the third addresses a potential ground for an

ineffective assistance of counsel claim.

First, counsel addresses trial counsel’s objection to admission of State’s

Exhibit 2, which was a custodian of records affidavit proving up Grayson County

records related to two prior arrests of Stevenson. Trial counsel objected to the

affidavit because it was dated July 7, 2027, which was a future date. The trial court

found the date to be a clerical error and overruled the objection. Stevenson’s trial

counsel stated “I understand. It’s just a clerical error” and did not reurge the

objection. The State cured the error by calling the records custodian as a witness.

She testified the date was a clerical error and confirmed she provided the documents

to the State three or four days before trial.

We review the trial court’s admission of evidence and evidentiary rulings for

abuse of discretion. Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App.

2008). The trial court does not abuse its discretion in admitting evidence unless its

ruling lies “outside the zone of reasonable disagreement.” Walters v. State, 247

S.W.3d 204, 217 (Tex. Crim. App. 2007). Under this record, we agree the trial court

did not abuse its discretion. Moreover, any harm was cured by the custodian’s

testimony. The trial court’s ruling does not present an arguable issue for appeal.

–7– Next, appellate counsel addresses trial counsel’s objections to certain

testimony of Tempest Brooks, the forensic analyst who tested Stevenson’s blood for

its blood alcohol content. Trial counsel made two objections to Brooks’ testimony.

First, he objected to Brooks testifying as a physician expert when she testified to the

effects of alcohol on different people and their motor functions. He later objected to

Brooks responding to a hypothetical posed by the State concerning whether it would

have been possible for Stevenson to have a BAC less than 0.08 at the time of the

arrest. Brooks testified Stevenson would have had to drink a whole beer, a four ounce

glass of wine, or a shot right before the traffic stop or while in custody to have been

below 0.08 at the time of the traffic stop but measure 0.127 forty-five minutes later

when his blood was drawn. Trial counsel contended the testimony was speculative.

The trial court overruled both objections. Under this record, we agree the trial court

did not abuse its discretion in overruling the objections to Brooks testimony because

the rulings were within the zone of reasonable disagreement. The trial court’s ruling

does not present an arguable issue for appeal.

Finally, appellate counsel raises two possible grounds for a claim against trial

counsel for ineffective assistance of counsel. Appellate counsel concludes, however,

that those grounds do not present arguable issues in this direct appeal because the

record is insufficient to properly review the conduct of trial counsel. We agree the

potential grounds for an ineffective assistance of counsel claim raised by appellate

counsel cannot be evaluated properly on the record before us. Our resolution of this

–8– appeal is based on and limited by the record as it exists before us. Because the

reasonableness of counsel’s choices often involves facts that do not appear in the

appellate record, a petition for writ of habeas corpus usually is the appropriate

vehicle to investigate ineffective assistance claims. Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002). Such is the case here.

To establish ineffective assistance of trial counsel, Stevenson must show: (1)

his counsel’s performance fell below an objective standard of reasonableness; and

(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the

result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our

scrutiny of trial counsel’s performance is highly deferential; that is, we presume the

lawyer’s conduct falls within the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994). To defeat this presumption, the allegation of ineffective assistance must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

Generally, the record on appeal will be insufficient to satisfy the first prong of the

Strickland test. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Here, Stevenson’s appellate counsel first questions whether trial counsel’s

references to Stevenson’s race was effective lawyering or ineffective assistance of

counsel. Counsel points to trial counsel’s extensive discussion of race during voir

–9– dire, including a remark that Donald Trump had stated “he didn’t want any black

people counting his money,” and trial counsel’s statement during closing argument

at punishment reminding the jury that Stevenson is “black.” Appellate counsel notes

the record fails to show trial counsel’s goal or reasoning for raising race in this case.

Appellate counsel also wonders why trial counsel did not offer Stevenson’s medical

records to show Stevenson had a stroke prior to his arrest and to raise questions

concerning whether that stroke impacted Stevenson’s performance of the field

sobriety tests. The record, however, is silent as to whether medical records were

available to corroborate Stevenson’s statement to the arresting officer that he had

recently suffered a stroke. We cannot tell from the record before us if trial counsel

sought medical records and whether he should have consulted with medical experts

concerning whether and how a prior stroke could have impacted Stevenson’s

culpability. Those potential grounds, therefore, do not present arguable issues to

support a direct appeal of the judgment. Those are issues more properly addressed

in an application for writ of habeas corpus.

The Texas Code of Criminal Procedure entitles an indigent habeas applicant

to appointed post-conviction counsel whenever the court concludes the interests of

justice require representation. TEX. CODE CRIM. PROC. art. 1.051(d)(3). A district

court retains plenary power to issue a writ of habeas corpus through Article V,

section 8 of the Texas Constitution. See Ex parte Valle, 104 S.W.3d 888, 890 (Tex.

Crim. App. 2003). Stevenson, thus, may seek habeas relief in the trial court

–10– regardless of the outcome of this appeal should he choose to do so. We express no

opinion, however, on whether he is entitled to habeas relief.

CONCLUSION We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178

S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in

Anders cases). We agree the appeal is frivolous and without merit, and we find

nothing in the record that might arguably support a direct appeal of the judgment.

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

judgment.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS 230820f.u05 JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

FLOYD STEVENSON, SR., On Appeal from the 397th Judicial Appellant District Court, Grayson County, Texas No. 05-23-00820-CR V. Trial Court Cause No. 075297. Opinion delivered by Justice Partida- THE STATE OF TEXAS, Appellee Kipness. Justices Goldstein and Miskel participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 25th day of November, 2024.

–12–