AFFIRMED and Opinion Filed July 28, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01105-CR
JAMES MARCEL ENGLISH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31659
MEMORANDUM OPINION Before Justices Schenck, Osborne, and Smith Opinion by Justice Smith
Appellant James Marcel English was convicted for unlawful possession of a
firearm by a felon. Appellant’s court-appointed counsel filed an Anders brief and a
motion to withdraw as counsel asserting that there are no arguable issues of
reversible error on appeal. See Anders v. California, 386 U.S. 738 (1967). Because
we find no meritorious issues in our review of the record, we affirm the trial court’s
judgment. Background
Appellant was charged with the third-degree felony offense of unlawfully
possessing a firearm as a felon. See TEX. PENAL CODE ANN. § 46.04(a). After
waiving his right to a jury, he pleaded guilty to the offense as charged. At the plea
hearing, appellant stated he had the opportunity to talk to counsel before he signed
the plea agreement, understood the rights he was waiving in pleading guilty, wished
to waive those rights and proceed with the agreement he reached with the State, was
pleading guilty because he was guilty and for no other reason, and no one had
promised him anything or threatened him to induce his plea. His signed judicial
confession was entered into evidence without objection. Pursuant to the plea
agreement, the trial court deferred a finding of guilt, placed appellant on deferred
adjudication community supervision for a term of five years, assessed a fine of
$1,000, ordered appellant to perform 100 hours of community service, and ordered
appellant to further comply with the standard terms and conditions of community
supervision.
Appellant’s conditions of community supervision were amended several
times during his five-year term, including a condition that he serve ninety days in
the Hunt County Jail. Ultimately, the case proceeded to a hearing on the State’s first
amended third motion to revoke appellant’s deferred adjudication community
supervision and request for final adjudication. The State alleged that appellant
violated his conditions of community supervision by (1) committing the new offense
–2– of assault bodily injury; (2) failing to appear in the 196th District Court on January
22, 2020; (3) failing to notify his supervision officer of the new arrest; (4)
committing the new offense of assault family violence; (5) failing to pay his monthly
supervision fee and his $1,000 fine; (6) failing to pay all court costs and attorney’s
fees; (7) failing to pay the Crime Stoppers fee; (8) failing to reimburse the Hunt
Community Supervision and Corrections Department for the cost of urinalysis
testing; and (9) failing to perform 100 hours of community service.
Appellant pleaded not true to allegations (1) and (9), and pleaded true to
allegations (2), (3), and (5) – (8), raising the affirmative defense of incarceration as
to allegation (2). The State abandoned allegation (4). The State presented testimony
from two witnesses, and appellant testified for the defense. The trial court found
allegations (1), (3), and (5) – (9) to be true, and allegation (2) to be not true. The
trial court revoked appellant’s community supervision, adjudicated appellant guilty
of unlawful possession of a firearm by a felon, and assessed his punishment at seven
years’ confinement.
After sentencing appellant, the trial court asked the State “to prepare
paperwork and [stated] I’ll sign a judgment when it’s presented.” The next day, via
Zoom, the court announced it was back on the record and explained that appellant’s
attorney had “waived the right to be here this afternoon for this portion of the
proceeding because I’ve already made all of the decisions I’m going to make.
Nothing is going to change.” The trial court summarized the proceedings from the
–3– previous day including its findings, adjudication of guilt, and sentence of seven years
and explained that appellant would be given 307 days of credit for time served and
credit in full for any fees and costs. The trial court also advised appellant of his right
to appeal and asked him if he had made a decision as to whether he intended to
appeal. Appellant stated that he had not made a decision and, in response to the trial
court asking him whether he had any questions about his right to appeal, appellant
asked, “Just if I do decide to appeal, how do I do it?” The trial court informed
appellant that he could not advise him on how to appeal but, if he indicated he wanted
to appeal, the court would appoint him an attorney for the appeal and the appointed
attorney could help him appeal. Appellant then informed the trial court that he
wanted to appeal, and the court appointed him appellate counsel. This appeal
ensued.
Anders
Appellant’s first appointed appellate counsel filed an Anders brief, which this
Court struck as formally deficient for failing to discuss the separate hearing at which
the trial court completed the sentencing process without appellant’s attorney present.
See English v. State, No. 05-20-01105-CR, 2021 WL 5002425, at *2 (Tex. App.—
Dallas Oct. 28, 2021, no pet.) (mem. op., not designated for publication). We abated
the case to the trial court to appoint new appellate counsel. Id.
Appellant’s second appointed appellate counsel also filed an Anders brief. In
addition to addressing the evidence presented at the revocation hearing, the accuracy
–4– of the judgment and sentence, and whether trial counsel’s representation was
effective, appellate counsel addressed the separate hearing as follows:
Trial Counsel was ineffective for failing to object to the Court holding the formal sentencing hearing with[out] his presence or not appearing at the actual sentencing hearing. The trial Court holding a sentencing hearing without Appellant’s attorney was a clear violation of Appellant’s 5th and 6th Amendment[s] to the United States Constitution. The sentencing hearing is a critical stage in a criminal case. ... However, the Court merely announced the sentence and signed the paperwork. The actions of the Court were in accord with the oral sentence pronounced when the Appellant and his attorney were in open Court. There is nothing trial counsel could have done to protect Appellant’s rights at that hearing. While the trial Court’s actions were a clear violation of Appellant’s rights, this Court will find that the actions of the trial Court constituted a “harmless error”.
Appellate counsel concluded that there are no arguable issues of reversible error and
that the appeal is without merit and frivolous. He also filed a motion to withdraw as
appointed counsel.
When this Court receives an Anders brief asserting no arguable grounds for
appeal exist, we must independently review the record to determine whether the
appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). We do not review the merits of potential issues set out
in the brief or raised in a pro se response but, instead, determine whether there are
any arguable grounds for reversal. Bledsoe v.
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AFFIRMED and Opinion Filed July 28, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01105-CR
JAMES MARCEL ENGLISH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31659
MEMORANDUM OPINION Before Justices Schenck, Osborne, and Smith Opinion by Justice Smith
Appellant James Marcel English was convicted for unlawful possession of a
firearm by a felon. Appellant’s court-appointed counsel filed an Anders brief and a
motion to withdraw as counsel asserting that there are no arguable issues of
reversible error on appeal. See Anders v. California, 386 U.S. 738 (1967). Because
we find no meritorious issues in our review of the record, we affirm the trial court’s
judgment. Background
Appellant was charged with the third-degree felony offense of unlawfully
possessing a firearm as a felon. See TEX. PENAL CODE ANN. § 46.04(a). After
waiving his right to a jury, he pleaded guilty to the offense as charged. At the plea
hearing, appellant stated he had the opportunity to talk to counsel before he signed
the plea agreement, understood the rights he was waiving in pleading guilty, wished
to waive those rights and proceed with the agreement he reached with the State, was
pleading guilty because he was guilty and for no other reason, and no one had
promised him anything or threatened him to induce his plea. His signed judicial
confession was entered into evidence without objection. Pursuant to the plea
agreement, the trial court deferred a finding of guilt, placed appellant on deferred
adjudication community supervision for a term of five years, assessed a fine of
$1,000, ordered appellant to perform 100 hours of community service, and ordered
appellant to further comply with the standard terms and conditions of community
supervision.
Appellant’s conditions of community supervision were amended several
times during his five-year term, including a condition that he serve ninety days in
the Hunt County Jail. Ultimately, the case proceeded to a hearing on the State’s first
amended third motion to revoke appellant’s deferred adjudication community
supervision and request for final adjudication. The State alleged that appellant
violated his conditions of community supervision by (1) committing the new offense
–2– of assault bodily injury; (2) failing to appear in the 196th District Court on January
22, 2020; (3) failing to notify his supervision officer of the new arrest; (4)
committing the new offense of assault family violence; (5) failing to pay his monthly
supervision fee and his $1,000 fine; (6) failing to pay all court costs and attorney’s
fees; (7) failing to pay the Crime Stoppers fee; (8) failing to reimburse the Hunt
Community Supervision and Corrections Department for the cost of urinalysis
testing; and (9) failing to perform 100 hours of community service.
Appellant pleaded not true to allegations (1) and (9), and pleaded true to
allegations (2), (3), and (5) – (8), raising the affirmative defense of incarceration as
to allegation (2). The State abandoned allegation (4). The State presented testimony
from two witnesses, and appellant testified for the defense. The trial court found
allegations (1), (3), and (5) – (9) to be true, and allegation (2) to be not true. The
trial court revoked appellant’s community supervision, adjudicated appellant guilty
of unlawful possession of a firearm by a felon, and assessed his punishment at seven
years’ confinement.
After sentencing appellant, the trial court asked the State “to prepare
paperwork and [stated] I’ll sign a judgment when it’s presented.” The next day, via
Zoom, the court announced it was back on the record and explained that appellant’s
attorney had “waived the right to be here this afternoon for this portion of the
proceeding because I’ve already made all of the decisions I’m going to make.
Nothing is going to change.” The trial court summarized the proceedings from the
–3– previous day including its findings, adjudication of guilt, and sentence of seven years
and explained that appellant would be given 307 days of credit for time served and
credit in full for any fees and costs. The trial court also advised appellant of his right
to appeal and asked him if he had made a decision as to whether he intended to
appeal. Appellant stated that he had not made a decision and, in response to the trial
court asking him whether he had any questions about his right to appeal, appellant
asked, “Just if I do decide to appeal, how do I do it?” The trial court informed
appellant that he could not advise him on how to appeal but, if he indicated he wanted
to appeal, the court would appoint him an attorney for the appeal and the appointed
attorney could help him appeal. Appellant then informed the trial court that he
wanted to appeal, and the court appointed him appellate counsel. This appeal
ensued.
Anders
Appellant’s first appointed appellate counsel filed an Anders brief, which this
Court struck as formally deficient for failing to discuss the separate hearing at which
the trial court completed the sentencing process without appellant’s attorney present.
See English v. State, No. 05-20-01105-CR, 2021 WL 5002425, at *2 (Tex. App.—
Dallas Oct. 28, 2021, no pet.) (mem. op., not designated for publication). We abated
the case to the trial court to appoint new appellate counsel. Id.
Appellant’s second appointed appellate counsel also filed an Anders brief. In
addition to addressing the evidence presented at the revocation hearing, the accuracy
–4– of the judgment and sentence, and whether trial counsel’s representation was
effective, appellate counsel addressed the separate hearing as follows:
Trial Counsel was ineffective for failing to object to the Court holding the formal sentencing hearing with[out] his presence or not appearing at the actual sentencing hearing. The trial Court holding a sentencing hearing without Appellant’s attorney was a clear violation of Appellant’s 5th and 6th Amendment[s] to the United States Constitution. The sentencing hearing is a critical stage in a criminal case. ... However, the Court merely announced the sentence and signed the paperwork. The actions of the Court were in accord with the oral sentence pronounced when the Appellant and his attorney were in open Court. There is nothing trial counsel could have done to protect Appellant’s rights at that hearing. While the trial Court’s actions were a clear violation of Appellant’s rights, this Court will find that the actions of the trial Court constituted a “harmless error”.
Appellate counsel concluded that there are no arguable issues of reversible error and
that the appeal is without merit and frivolous. He also filed a motion to withdraw as
appointed counsel.
When this Court receives an Anders brief asserting no arguable grounds for
appeal exist, we must independently review the record to determine whether the
appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). We do not review the merits of potential issues set out
in the brief or raised in a pro se response but, instead, determine whether there are
any arguable grounds for reversal. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.
Crim. App. 2005). If we conclude, after conducting an independent review, that
–5– appellate counsel has made a thorough and conscientious examination of the record
and agree the appeal is frivolous, we must grant counsel’s motion to withdraw and
affirm the trial court’s judgment. In re Schulman, 252 S.W.3d 403, 408–09 (Tex.
Crim. App. 2008); Meza v. State, 206 S.W.3d 684, 688–89 (Tex. Crim. App. 2006).
The brief before us meets the requirements of Anders. It presents a
professional evaluation of the record citing to legal authority and showing why there
are no arguable grounds to advance on appeal. See Schulman, 252 S.W.3d at 406.
Counsel provided appellant a copy of the brief, advised him of his right to examine
the record and file a response, and advised him of his right to seek discretionary
review in the Texas Court of Criminal Appeals should this Court conclude his appeal
is frivolous. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014).
Additionally, this Court separately provided appellant a copy of the brief filed by
counsel and notified him about his right to examine the appellate record, file a pro
se response, and file a petition for discretionary review. Appellant did not notify
this Court that he wished to examine the record or file a response to the Anders brief.
We have independently reviewed the record and counsel’s brief, and we agree
the appeal is frivolous and without merit. We find nothing in the record that could
arguably support the appeal.
–6– Conclusion
We grant counsel’s motion to withdraw and affirm the judgment of the trial
court.
/Craig Smith/ CRAIG SMITH JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 201105F.U05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES MARCEL ENGLISH, On Appeal from the 196th District Appellant Court, Hunt County, Texas Trial Court Cause No. 31659. No. 05-20-01105-CR V. Opinion delivered by Justice Smith. Justices Schenck and Osborne 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 28th day of July 2022.
–8–