Matthew Joe Herrera v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 28, 2023
• Docket: 10-23-00035-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00035-CR

MATTHEW JOE HERRERA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Somervell County, Texas Trial Court No. 249-01088

MEMORANDUM OPINION

A jury found appellant Matthew Joe Herrera guilty of one count of possession of

a controlled substance in an amount greater than four grams but less than 200 grams with

intent to deliver and one count of unlawful possession of a firearm by a felon. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112; see also TEX. PENAL CODE ANN. § 46.04. The trial

court sentenced Herrera accordingly. Herrera then filed the present appeal. We affirm. Herrera’s appointed appellate counsel filed a motion to withdraw and an Anders

brief in support of the motion asserting that she has diligently reviewed the appellate

record and that, in her opinion, the appeal is frivolous. See generally Anders v. California,

386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel’s brief evidences a

professional evaluation of the record and compliance with other duties of appointed

counsel. We conclude that counsel has performed the duties required of appointed

counsel. See id. at 744, 87 S. Ct. at 1400; High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim.

App. [Panel Op.] 1978); see also Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App.

2014); In re Schulman, 252 S.W.3d 403, 407-09 (Tex. Crim. App. 2008).

In reviewing an Anders appeal, we must “after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87

S. Ct. at 1400; see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d (1988);

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

“wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v.

Court of Appeals, 486 U.S. 429, 438 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988).

Although provided the opportunity, Herrera has not filed a response to the motion to

withdraw or Anders brief. After a review of the entire record in this appeal, we conclude

that the appeal is wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826=28 (Tex. Crim.

App. 2005). Accordingly, we affirm the trial court’s judgments.

Herrera v. State Page 2 Counsel’s motion to withdraw from representation of Herrera is granted.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Appeal affirmed; motion granted Opinion delivered and filed December 28, 2023 Do not publish [CRPM]

Herrera v. State Page 3