Gbenga Anthony Fadipe A/K/A Gbenga A. Fadipe v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 27, 2023
• Docket: 02-21-00073-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00073-CR ___________________________

GBENGA ANTHONY FADIPE A/K/A GBENGA A. FADIPE, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1548587D

Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Gbenga Anthony Fadipe appeals his conviction for theft of property with a

value exceeding three hundred thousand dollars, a first-degree felony offense. See Tex.

Penal Code Ann. § 31.03(e)(7). Fadipe entered an open plea of guilty. Following a

sentencing hearing, the trial court sentenced Fadipe to twelve years’ incarceration.1

On appeal, Fadipe’s counsel has filed a motion to withdraw and a brief in

which he argues that the appeal is frivolous. Counsel’s motion and brief meet the

requirements of Anders v. California by presenting a professional evaluation of the

record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel provided

Fadipe with copies of his brief and motion to withdraw, and he informed Fadipe of

his right to file a pro se response, to review the record, and to seek discretionary

review pro se should this court deny relief. See 436 S.W.3d 313, 319 (Tex. Crim. App.

2014).

Fadipe filed a pro se response in which he requested that his appeal be

withdrawn.2 The State submitted a letter indicating that it would not file a response to

Fadipe was given credit for time served. 1

While clearly stating in his response that he did not wish to pursue his appeal, 2

Fadipe also requested a sentence reduction. In support of his request, Fadipe included a laundry list of fifteen “evidences,” including several complaints about both the advice he received from and the strategy employed by his trial counsel. However, on the record before us, Fadipe’s complaints, without more, are insufficient to show that his trial counsel was ineffective. See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex.

2 the Anders brief or the motion to withdraw filed by Fadipe’s counsel.3

In the Anders context, we must conduct an independent evaluation of the

record to determine whether the appeal is frivolous. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991); Jury v. State, 472 S.W.3d 880, 880 (Tex. App.—Fort

Worth 2015, no pet.) (mem. op.). Only then may we grant counsel’s motion to

withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

After carefully reviewing the record and counsel’s brief, we agree with counsel

that this appeal is wholly frivolous and without merit. Our independent review of the

record reveals nothing further that might arguably support the appeal. See Bledsoe v.

State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206

S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel’s motion

Crim. App. 2012); see also Sabatini v. State, No. 14-20-00066-CR, 2020 WL 7866724, at *7 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020, no pet.) (mem. op., not designated for publication) (noting that in the absence of direct evidence of counsel’s reasoning, “an appellate court will assume a strategic motivation if any can be imagined” (citing Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001))). As the Texas Court of Criminal Appeals has made clear, “post-conviction writ proceedings are a better forum for pursuing . . . an ineffective assistance of counsel claim” than a direct appeal. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). Because there is nothing in the record to suggest that the trial court abused its “essentially ‘unfettered’” discretion in assessing Fadipe’s punishment, which is well within the statutory range for his first-degree felony offense, we see no basis for reducing his sentence. See Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (quoting Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)). 3 In its letter, the State pointed out the absence of record evidence showing that Fadipe’s trial counsel was ineffective and made clear that it opposed any reduction of his sentence.

3 to withdraw and affirm the trial court’s judgment.

/s/ Wade Birdwell

Wade Birdwell Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 27, 2023