Kori Leanne Delcourt v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 31, 2023
• Docket: 01-22-00261-CR
• Status: Published

Opinion

Opinion issued October 31, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00261-CR ——————————— KORI LEANNE DELCOURT, Appellant V. STATE OF TEXAS, Appellee

On Appeal from the 174th Judicial District Court Harris County, Texas Trial Court Case No. 1660661

MEMORANDUM OPINION

Kori Leanne Delcourt was found guilty after a jury trial of the state jail felony

offense of injury to a child by criminal negligence and appeals the trial court’s

judgment finding her guilty and sentencing her to 180 days’ confinement, suspended

for three years’ community supervision. See TEX. PENAL CODE § 22.04(a)(3), (g). The trial court certified that this was not a plea-bargain case, and that Delcourt had

the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Delcourt timely appealed, and

appellate counsel was appointed. Appellate counsel has moved to withdraw and

submitted an Anders brief,1 declaring there are no nonfrivolous bases for appeal.

Delcourt did not file a pro se brief, and the State waived its right to respond to the

Anders brief. We grant counsel’s motion and affirm.

Anders Procedures

When appointed counsel believes an appeal by a criminal defendant is

frivolous, counsel may file both a motion to withdraw and an Anders brief. In re

Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (citing Anders v.

California, 386 U.S. 738, 744 (1967)). An Anders brief reflects the fact that counsel

has adequately researched the case before deciding to withdraw. Id. at 407. It sets

out counsel’s due diligence, informs the client, and provides a roadmap for the

appellate court’s review of the record. Id. It also assists the client by providing

citations to the record if she wishes to exercise her right to file a pro se brief. Id. at

407–08. An Anders brief is appropriate only when counsel has mastered the record

and the evidence and determines that there are no sustainable grounds for appeal.

Banks v. State, 341 S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2009, order),

disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston [1st

1 See Anders v. California, 386 U.S. 738 (1967). 2 Dist.] Mar. 11, 2010, no pet.) (mem. op., not designated for publication). If counsel

finds that the appeal contains potentially meritorious grounds, counsel must file a

merits brief with the court. In re Schulman, 252 S.W.3d at 406 n.9; Banks, 341

S.W.3d at 430; see Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App.

1991).

If counsel determines that potential grounds for appeal exist but that those

grounds would be frivolous, counsel must explain those grounds for appeal with

citations to applicable legal authority and pertinent evidence. In re Schulman, 252

S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should “point out where pertinent

testimony may be found in the record, refer to pages in the record where objections

were made, the nature of the objection, the trial court’s ruling, and discuss either

why the trial court’s ruling was correct or why the appellant was not harmed by the

ruling of the court.” High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

The purpose of this requirement is to convince the courts of appeals that counsel has

given due consideration to any potential ground for appeal before dismissing it as

frivolous. See In re Schulman, 252 S.W.3d at 407–09 (stating courts of appeals will

not grant motion to withdraw if Anders brief does not show that record was carefully

reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing both legal

authority and potential grounds for appeal); Banks, 341 S.W.3d at 431 (same).

3 Even when counsel believes that there are no grounds that might convince an

appellate court, counsel must still file an Anders brief, and the Anders brief must

direct the court of appeals to the portions of the record that could have created error

but did not. Banks, 314 S.W.3d at 431. Counsel may not provide a mere conclusory

statement that no grounds for appeal exist. In re Schulman, 252 S.W.3d at 406–07;

see Anders, 386 U.S. at 742. While the courts of appeals have a supervisory role,

they should not have to pour over the record to determine that counsel has completed

a thorough review of the record. Banks, 341 S.W.3d at 431. If we conclude, after

conducting an independent review, that “appellate counsel has exercised

professional diligence in assaying the record for error” and agree that the appeal is

frivolous, we should grant counsel’s motion to withdraw, Meza v. State, 206 S.W.3d

684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s judgment. In re

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

In this Anders brief, counsel has discussed that this appeal is meritless and

frivolous because the record contains no reversible error. Counsel specifically

discussed and briefed: (1) voir dire; (2) the sufficiency of the evidence;

(3) ineffective assistance of counsel; (4) the jury charge; and (5) Delcourt’s

punishment. Delcourt did not file a response, and the State declined to respond to

the Anders brief.

4 If appellant’s counsel moves to withdraw because an appeal is frivolous and

fulfills the Anders requirements, we must independently examine the record to see

if there is any arguable ground that might be raised on an appellant’s behalf. Stafford,

813 S.W.2d at 511. When performing this evaluation, we consider the record, the

arguments raised in the Anders brief, and any issues that an appellant might raise in

a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward may we grant

counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).

We have scrutinized counsel’s Anders brief, the State’s waiver of its right to

respond to the Anders brief, and the appellate record. We agree with counsel that

this appeal is meritless and frivolous. Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005).

Conclusion

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

Counsel must immediately send the required notice and file a copy of that notice

with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).

Sarah Beth Landau Justice

Panel consists of Justices Kelly, Landau, and Farris.

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