Michael James Broussard v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 30, 2024
• Docket: 01-23-00427-CR
• Status: Published

Opinion

Opinion issued July 30, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00427-CR ——————————— MICHAEL JAMES BROUSSARD, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 22-CR-1910

MEMORANDUM OPINION

Appellant, Michael James Broussard, appeals from his conviction for

aggravated robbery. See TEX. PENAL CODE § 29.03. Broussard’s appellate counsel filed a motion to withdraw and an Anders brief.1 We grant counsel’s motion and

affirm.

Background

Broussard was charged with aggravated robbery. The indictment included two

enhancement paragraphs, each alleging a prior felony conviction, which made him

eligible for punishment as a habitual offender.2 A jury found Broussard guilty as

charged in the indictment, found the enhancement allegations true, and sentenced

him to thirty-five years’ confinement.

On appeal, Broussard’s appointed counsel has filed an Anders brief, stating

that she has found no arguable points of error to raise on appeal, and moved to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 738 (1967). The brief

meets the requirements of Anders by presenting a professional evaluation of the

record and detailing why there are no arguable grounds for reversal. Id. at 744; see

also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978). Broussard has not

filed a response, and the State waived its opportunity to file a brief.

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

1 See Anders v. California, 386 U.S. 738 (1967). 2 See TEX. PENAL CODE § 12.42(d). 2 Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); Anders, 386 U.S. at 741–

42. An Anders brief reflects the fact that counsel has adequately researched the case

before deciding to withdraw. In re Schulman, 252 S.W.3d 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. at 407. It also assists the client by providing citations to the

record if he wishes to exercise his 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 Dist.] Mar. 11,

2010, no pet.) (mem. op.). If counsel finds that the appeal does contain potentially

meritorious grounds, counsel must file a merits brief with the court. In re Schulman,

252 S.W.3d at 407 n.9; Banks, 341 S.W.3d at 430; Stafford v. State, 813 S.W.2d 503,

509 (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 relevant 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

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

ruling of the court.” High, 573 S.W.2d at 813. This confirms for the appellate court

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 that

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.

Even when counsel believes that there are no grounds for appeal that might

persuade an appellate court, counsel must still file an Anders brief, directing the

court to the portions of the record that could have created error but did not. Banks,

341 S.W.3d at 431. Counsel may not merely provide a conclusory statement that no

bases for appeal exist. In re Schulman, 252 S.W.3d at 406–07; see Anders, 386 U.S.

at 742. While the appellate court has a supervisory role, we should not have to scour

the record to confirm counsel has conducted a thorough review. Banks, 341 S.W.3d

at 431. If, after our independent review of the briefing and record, we determine 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 and affirm the trial court’s judgment. See Mitchell v. State, 193 S.W.3d

4 153, 156 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Bledsoe v. State, 178

S.W.3d 824, 826, 828 (Tex. Crim. App. 2005)).

In this Anders brief, counsel has outlined why this appeal is meritless and

frivolous and demonstrated that the record contains no reversible error. Counsel

considered and briefed the following: (1) the sufficiency of the charging instrument;

(2) the trial court’s denial of appellant’s pre-trial motion to continue; (3) the trial

court’s adverse ruling on appellant’s Batson challenges and another objection during

trial; (4) the sufficiency of the evidence supporting the trial court’s denial of

appellant’s motion for directed verdict; (5) the sufficiency of the court’s charge; and

(6) the appropriateness of the sentence imposed and the State’s proof of two

enhancement paragraphs. As noted above, Broussard has not filed a pro se response,

and the State waived its opportunity to submit a brief.

Broussard’s counsel has also certified that she mailed a copy of the motion to

withdraw and Anders brief to Broussard and informed him of his right to file a pro

se response. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In

re Schulman, 252 S.W.3d at 408–09. Counsel also informed Broussard of his right

to access the appellate record and provided him with a form motion for pro se access.

See Kelly, 436 S.W.3d at 319–20.

5 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. See Bledsoe, 178 S.W.3d at 827–28.

Conclusion

Accordingly, we grant counsel’s motion to withdraw and affirm the trial

court’s judgment.3 See TEX. R. APP. P. 43.2(a). 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).

Amparo Monique Guerra Justice

Panel consists of Chief Justice Adams and Justices Guerra and Farris.

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

3 Appointed counsel still has a duty to inform Broussard of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 6