John David Payne v. State

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 09-16-00362-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00362-CR ____________________

JOHN DAVID PAYNE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-11-12010-CR ________________________________________________________________________

MEMORANDUM OPINION

In this appeal, John David Payne’s appellate counsel filed a brief in which he

contends that no arguable grounds can be advanced to support a decision reversing

Payne’s conviction for online solicitation of a minor. See Tex. Penal Code Ann. §

33.021(c) (West Supp. 2016).1 Although usually online solicitation of a minor is

1 We cite to the current version of the Penal Code, as the amendments made to the cited statutes do not affect this appeal. 1

punishable as a third-degree felony, because Payne had two previous felony

convictions, he was subject to a potential sentence of life in prison. See id. § 12.42(d)

(West Supp. 2016) (providing enhanced penalties for repeat and habitual felony

offenders), § 33.021(f) (West Supp. 2016) (providing that a conviction for online

solicitation of a minor fourteen or older is a third-degree felony). The jury found that

Payne should serve a life sentence. Based on our review of the record, we agree with

Payne’s counsel that no arguable issues exist to support his appeal. See Anders v.

California, 386 U.S. 738 (1967).

In 2016, a jury found Payne guilty of online solicitation of a minor. Following

a punishment hearing, and based on its findings that Payne committed two prior

felonies as charged in the indictment, the jury found that Payne should serve a life

sentence. Subsequently, the trial court sentenced Payne to serve a sentence of life in

prison and Payne appealed.

In his appeal, Payne’s counsel filed a brief presenting counsel’s professional

evaluation of the record. In the brief, Payne’s counsel concludes that any appeal

would be frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). After receiving the Anders brief, we granted an extension

of time to allow Payne an opportunity to file a pro se response. However, no response

was filed.

After reviewing the appellate record and the Anders brief filed by Payne’s

counsel, we agree with counsel’s conclusion that an appeal on the current record

would be frivolous. Therefore, we conclude it is not necessary to order that new

counsel be appointed to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991) (requiring the court of appeals to appoint other counsel

only if it determines that there were arguable grounds for the appeal). Given our

conclusion that no arguable error exists to support Payne’s appeal, we affirm the trial

court’s judgment.2

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on May 25, 2017 Opinion Delivered August 2, 2017 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.

2 Payne may challenge our decision in the case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3