Jaimel Demetrius Smith v. the State of Texas

Opinion

Opinion issued August 22, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00365-CR ——————————— JAIMEL DEMETRIUS SMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1765558

MEMORANDUM OPINION

Appellant, Jaimel Demetrius Smith, pleaded not guilty to the offense of

murder. See TEX. PENAL CODE § 19.02. Smith waived the right to a jury trial and

after a trial to the bench, the trial court signed a judgment of conviction for murder and sentenced Smith to 55 years in the Institutional Division of the Texas

Department of Criminal Justice.

On appeal, Smith’s appointed counsel 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 (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; 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; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). The State’s brief was originally due on March 24, 2022, but

despite notices that the brief was late, the State did not file a brief or waiver.

Counsel advised Smith of his right to access the record and provided him

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

right to file a pro se response to the Anders brief. Smith requested and was granted

access to the record and he filed a pro se response to counsel’s brief.

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 (emphasizing

2 that reviewing court—and not counsel—determines, after full 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 Adam Banks Brown must immediately send Smith 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 Justices Kelly, Landau, and Farris.

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