John Dayton Brown v. State

• Court: Court of Appeals of Texas
• Decided: February 26, 2015
• Docket: 10-14-00262-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00262-CR

JOHN DAYTON BROWN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. 21881

MEMORANDUM OPINION

John Dayton Brown pled guilty to the offense of aggravated assault with a

deadly weapon and was placed on deferred adjudication community supervision. See

TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Less than a year later, he was

adjudicated guilty and sentenced to ten years in prison.

Brown's appellate attorney filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Brown was informed of

his right of access to the appellate record and his right to submit a brief or other

response on his own behalf. He did not request access to the appellate record and did not submit a brief or response.

Counsel asserts in the Anders brief that counsel thoroughly and conscientiously

reviewed the complete reporter’s record and clerk’s record. Counsel specifically

discusses the prior history of the case, the sufficiency of the evidence to support

Brown’s conviction, and whether Brown was deprived the affective assistance of

counsel. Counsel concludes that counsel is unable to find any potentially meritorious

issues to assert and is of the opinion that the appeal is frivolous.

Counsel's brief evidences a professional evaluation of the record for error, and

we conclude that counsel performed the duties required of appointed counsel. See

Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also

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

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.

Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.

An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813

S.W.2d at 511.

After reviewing counsel's brief and the entire record in this appeal, we determine

the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

Brown v. State Page 2 App. 2005). Accordingly, we affirm the trial court's judgment.

Should Brown wish to seek further review of this case by the Texas Court of

Criminal Appeals, he must either retain an attorney to file a petition for discretionary

review or must file a pro se petition for discretionary review. Any petition for

discretionary review must be filed within thirty days from the date of this opinion or

the last timely motion for rehearing or timely motion for en banc reconsideration was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the

petition for discretionary review must be filed with the Clerk of the Court of Criminal

Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011).

Any petition for discretionary review should comply with the requirements of Rule 68.4

of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re

Schulman, 252 S.W.3d at 409 n.22.

Counsel's motion to withdraw from representation of Brown is granted, and

counsel is permitted to withdraw from representing Brown. Additionally, counsel must

send Brown a copy of our decision, notify him of his right to file a pro se petition for

discretionary review, and send this Court a letter certifying counsel's compliance with

Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252

S.W.3d at 409 n.22.

TOM GRAY Chief Justice

Brown v. State Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 26, 2015 Do not publish [CR25]

Brown v. State Page 4