Larry Tony Rasberry v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 14, 2023
• Docket: 01-22-00846-CR
• Status: Published

Opinion

Opinion issued December 14, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00846-CR NO. 01-22-00847-CR ——————————— LARRY TONY RASBERRY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court Harris County, Texas Trial Court Case Nos. 1625395 & 1625396

MEMORANDUM OPINION A jury found appellant, Larry Tony Rasberry, guilty of the felony offenses of

possession of a firearm by a felon1 and aggravated assault.2 After finding true the

allegations in two enhancement paragraphs that appellant had twice been previously

convicted of felony offenses, the jury assessed his punishment at confinement for

twenty-five years for the offense of possession of a firearm by a felon and at thirty

years for the offense of aggravated assault, to run concurrently. Appellant timely

filed notices of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw in

each appeal, along with a brief stating that the record in each case presents no

reversible error and the appeals are without merit and are frivolous. See Anders v.

California, 386 U.S. 738 (1967).

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

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

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

Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the record in

each appeal and is unable to advance any grounds of error that warrant reversal. See

1 See TEX. PENAL CODE ANN. § 46.04(a), (e). Appellate cause no. 01-22-00846-CR, trial court cause no. 1625396. 2 See id. §§ 22.01(a), 22.02(a), (b). Appellate cause no. 01-22-00847-CR, trial court cause no. 1625395.

2 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 she provided appellant with a copy of the

brief, the motions to withdraw, and informed him of his right to examine the

appellate records and file a response to counsel’s Anders brief. Counsel has also

provided appellant with a form motion to access the appellate records.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 has not filed a response to his counsel’s

Anders brief.

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

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

for review, and the appeals are 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.

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

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

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

may challenge a holding that there are no arguable grounds for an appeal in either

case by filing a petition for discretionary review in the Texas Court of Criminal

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

Conclusion

We affirm the judgments of the trial court and grant appellant’s appointed

counsel’s motion to withdraw filed in each appeal.4 Attorney Cheri Duncan 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 other pending

motions as moot.

Julie Countiss Justice

Panel consists of Justices Goodman, Countiss, and Farris.

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

4 Appellant’s appointed counsel still has a duty to inform appellant of the result of the appeals and that appellant 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).