Joseph Matthew Welborn v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 8, 2024
• Docket: 02-23-00158-CR
• Status: Published

Opinion

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

No. 02-23-00158-CR ___________________________

JOSEPH MATTHEW WELBORN, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1576569

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Charged with the death of his infant son, Appellant Joseph Matthew Welborn

pleaded guilty and judicially confessed to committing the first-degree felony offense of

injury to a child causing serious bodily injury (Count Three) in exchange for the

State’s waiving all remaining counts in the indictment.1 See Tex. Penal Code Ann.

§ 22.04(a)(1), (e). After receiving his guilty plea and hearing three days of punishment

evidence, a jury convicted Welborn of injury to a child causing serious bodily injury as

instructed by the trial court and assessed his punishment at imprisonment for life. See

id. §§ 12.32(a), 22.04(a)(1), (e). The trial court sentenced Welborn accordingly, he

timely appealed, and the trial court certified that he had permission to do so. See Tex.

R. App. P. 25.2(a)(2)(B), 26.2(a).

Welborn’s appointed appellate counsel has filed a motion to withdraw and a

brief complying with Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400

(1967), representing that this appeal is frivolous because the record reveals “no

arguable error.” In accordance with Kelly v. State, counsel provided Welborn with

copies of the brief and motion to withdraw and informed him of his right to file a

pro se response, to review the record, and to seek discretionary review pro se should

this court deny relief. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).

The three waived counts charged Welborn with capital murder of a person 1

under ten years of age (Count One), murder (Count Two), and aggravated assault with a deadly weapon against a family member (Count Four).

2 Counsel’s brief and motion meet the requirements of Anders by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. See In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008)

(orig. proceeding). This court gave Welborn the opportunity to file a pro se response

to the Anders brief, but he did not do so; likewise, the State did not file a brief.

After an appellant’s court-appointed attorney files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders, we must

independently examine the record for any arguable ground that may be raised on the

appellant’s behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75,

82–83, 109 S. Ct. 346, 351 (1988). We agree with counsel that this appeal is wholly

frivolous and without merit; we find nothing in the record that arguably might

support an 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/ Wade Birdwell

Wade Birdwell Justice

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

Delivered: August 8, 2024