Heidi Nicole Denman v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 13, 2024
• Docket: 05-23-00433-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed February 13, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00433-CR

HEIDI NICOLE DENMAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 33348CR

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Smith Heidi Nicole Denman appeals her conviction for the second degree felony

offense of possession of methamphetamine in the amount of 4 grams or more but

less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Her

court-appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting that a review of the record shows no reversible error. Because we

agree that the appeal is frivolous, we grant counsel’s motion to withdraw and affirm

the judgment of conviction. Background and Procedural History

On October 14, 2020, as part of a plea bargain agreement, appellant pleaded

guilty to possession of a controlled substance and was placed on ten years deferred

adjudication community supervision. On February 13, 2023, the State filed an

amended motion to adjudicate guilt, alleging appellant violated her community

supervision by committing sixteen violations. At a March 9, 2023 hearing, the State

abandoned the first nine allegations. Appellant pleaded true to allegations ten

through fourteen. The trial court found allegations fifteen and sixteen also to be true,

revoked appellant’s community supervision, adjudicated her guilty, and sentenced

her to twenty years in prison.

Appellant timely filed a motion for new trial and notice of appeal. The trial

court appointed counsel to represent her. Thereafter, appellant’s attorney filed a

motion to withdraw, supported by an Anders brief in which she concluded the appeal

was frivolous and without merit.

Anders

The Anders procedure is used in criminal cases when appellate counsel,

cognizant of her ethical duties not to raise frivolous issues on appeal, can identify no

non-frivolous issues to raise for appeal. Kelly v. State, 436 S.W.3d 313, 318 (Tex.

Crim. App. 2014). Counsel must seek leave to withdraw and file a brief that provides

a “roadmap” explaining why there are only frivolous issues to be raised on appeal.

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

–2– have performed a diligent review of the record for any claim that may be appealed,

and we must determine counsel was correct in concluding the appeal is frivolous.

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

The brief filed by counsel establishes a diligent review of the record, at each

stage of the proceeding, including the plea agreement, State’s motion to adjudicate,

adjudication hearing, and the trial court’s assessment of punishment. Counsel cited

relevant law and provided record citations in her review. Based on counsel’s review

of the record, counsel determined that there are no legal or factual issues that might

arguably support an appeal.

Counsel provided appellant with a copy of the brief and the record and

informed her of her right to file a pro se brief. See Kelly, 436 S.W.3d at 319. This

Court also provided notice to appellant of her right to file a pro se response and

petition for discretionary review. To this date, appellant has not filed a pro se brief.

The State filed a letter brief agreeing with appellant’s counsel that an appeal of this

case is frivolous and without merit because no reversible error appears in the record.

We conclude that counsel’s 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 v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991); High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel

Op.] 1978). Additionally, we have independently reviewed the record and conclude

there are no arguable grounds to present on appeal. See Anders, 386 U.S. at 744;

–3– Stafford, 813 S.W.2d at 511. We agree that the appeal is frivolous and without merit.

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

judgment.

/Craig Smith/ CRAIG SMITH JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 230433F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HEIDI NICOLE DENMAN, On Appeal from the 354th Judicial Appellant District Court, Hunt County, Texas Trial Court Cause No. 33348CR. No. 05-23-00433-CR V. Opinion delivered by Justice Smith. Justices Molberg and Reichek THE STATE OF TEXAS, Appellee participating.

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

Judgment entered this 13th day of February 2024.

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