John Wesley Breedlove II v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 31, 2023
• Docket: 02-21-00134-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-21-00134-CR ___________________________

JOHN WESLEY BREEDLOVE II, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR14536

Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant John Wesley Breedlove II appeals his conviction and forty-eight-year

sentence for the offense of continuous sexual abuse of a child. See Tex. Penal Code

Ann. § 21.02. Breedlove’s court-appointed appellate attorney has filed a motion to

withdraw as counsel and a brief in support of that motion. We grant counsel’s

motion to withdraw and affirm the trial court’s judgment.

In her motion to withdraw and supporting brief, counsel has determined, after

examining the appellate record, that no arguable grounds for appeal exist. See Anders

v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and

motion meet the Anders requirements, presenting a professional evaluation of the

entire record demonstrating why there are no arguable grounds for relief. Id.,

87 S. Ct. at 1400. Although provided the opportunity to seek a copy of the appellate

record and to file a pro se response, Breedlove has not done so. Likewise, the State

did not respond to the Anders brief.

After carefully reviewing the record and counsel’s brief, we agree with counsel

that this appeal is wholly frivolous and without merit.1 See Stafford v. State, 813 S.W.2d

1 In orders dated July 28, 2022, and May 22, 2023, we expressed concerns regarding a potential ineffective-assistance-of-counsel claim. We have determined that the issue cannot be successfully argued in this case on direct appeal. See Gomez v. State, 552 S.W.3d 422, 432 (Tex. App.—Fort Worth 2018, no pet.) (citing Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012)). But cf. Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013) (noting that if trial counsel did not have opportunity to explain action or inaction, we should not find deficient performance unless the conduct was “so outrageous that no competent attorney would have engaged in

2 503, 511 (Tex. Crim. App. 1991) (noting reviewing court’s duty to make independent

determination after reviewing record); see also Penson v. Ohio, 488 U.S. 75, 82–83,

109 S. Ct. 346, 351 (1988). Our independent review of the record reveals no arguable

grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.

2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We

therefore grant counsel’s motion to withdraw and affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 31, 2023

it.” (emphasis added)). “[T]he better procedural mechanism for pursuing a claim of ineffective assistance is almost always through writ of habeas corpus proceedings.” Tellez v. State, No. 04-18-00426-CR, 2019 WL 2271956, at *1 (Tex. App.—San Antonio May 29, 2019, no pet.) (mem. op., not designated for publication) (citing Freeman v. State, 125 S.W.3d 505, 511 (Tex. Crim. App. 2003) (Price, J., dissenting)).