Justin Walters Cory v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 18, 2021
• Docket: 01-19-00426-CR
• Status: Published

Opinion

Opinion issued May 18, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00426-CR ——————————— JUSTIN WALTERS CORY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 264th District Court Bell County, Texas1 Trial Court Case No. 77441 (Counts I and II)

MEMORANDUM OPINION

1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas to this Court pursuant to its docket equalization authority. See Misc. Docket No. 19-9040 (Tex. June 5, 2019); see also TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases). We are unaware of any conflict between the precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. Appellant, Justin Walters Cory, pleaded guilty, without an agreed punishment

recommendation from the State, to two “counts” of the felony offense of aggravated

sexual assault of a child.2 The trial court found appellant guilty, assessed his

punishment at confinement for twenty years for each “count,” to run concurrently,

and certified that he had a right to appeal. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel has filed a motion to withdraw, along with a

brief stating that the record presents no reversible error and the appeal is without

merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying the Court with references to the record and

legal authority. 386 U.S. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and

is unable to advance any grounds of error that warrant reversal. See Anders, 386

U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.]

2006, no pet.).

Counsel has informed the Court that he provided appellant with a copy of the

brief and the motion to withdraw. Counsel also advised appellant of his right to

review the record and provided him with a complete copy of the appellate record.

Counsel further advised appellant of his right to file a pro se response to counsel’s

2 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B).

2 Anders brief.3 See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014);

In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant did not

file a pro se response to counsel’s Anders brief.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing

reviewing court—and not counsel—determines, after full examination of

proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763,

767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable

grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines

whether arguable grounds exist by reviewing entire record). We note that an

appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Texas Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

3 This Court also notified appellant that his counsel filed an Anders brief and a motion to withdraw and informed appellant that he had a right to examine the appellate record and file a response to his counsel’s Anders brief. And this Court provided appellant with a form motion to access the appellate record. See Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Shulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

3 We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.4 Attorney E. Alan Bennett must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c). We dismiss any pending motions as moot.

PER CURIAM Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).

4 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).