Richard Cryer v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 09-22-00110-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00110-CR __________________

RICHARD CRYER, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,605 __________________________________________________________________

MEMORANDUM OPINION

Richard Cryer, represented by court-appointed counsel, was

convicted in a trial to a jury of aggravated assault with a deadly weapon,

a second-degree felony. 1 The jury assessed punishment and sentenced

him to prison for twenty years. The attorney appointed to represent

1See Tex. Penal Code Ann. § 22.02(a)(2).

1 Cryer filed a notice of appeal, and then filed an Anders brief in his

appeal. 2

In the brief, Cryer’s attorney represents there are no arguable

reversible errors to be addressed in Cryer’s appeal. 3 The brief filed by the

attorney contains a professional evaluation of the record. In the brief,

Cryer’s attorney explains why, under the record in Cryer’s case, no

arguable issues exist to reverse the trial court’s judgment.4 Cryer’s

attorney also represented that he sent Cryer a copy of the brief and the

record. When the brief was filed, the Clerk of the Ninth Court of Appeals

notified Cryer, by letter, that he could file a pro se brief or response with

the Court on or before January 9, 2023. Cryer, however, failed to respond.

When an attorney files an Anders brief, we are required to

independently examine the record and determine whether the attorney

assigned to represent the defendant has a non-frivolous argument that

would support the appeal. 5 In this appeal, the record does not show that

2See Anders v. California, 386 U.S. 738, 744 (1967). 3See id.; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). 4Id. 5Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at

744). 2 Cryer’s attorney filed a motion for new trial when the case was in the

trial court, and it also does not show that Cryer’s attorney filed a motion

to withdraw after he filed the notice of appeal. Because Cryer was

represented by counsel when he was in the trial court and the record

shows he didn’t file a motion for new trial, rebuttable presumption exists

that requires this Court to assume that Cryer considered and rejected

that option. 6

After reviewing the clerk’s record, the reporter’s record, and the

attorney’s brief, we agree there are no arguable grounds to support this

appeal. Thus, it follows the appeal is frivolous. 7 For that reason, we need

not require the trial court to appoint another attorney to re-brief the

appeal. 8

6Cooks v. State, 240 S.W.3d 906, 911 n.6 (Tex. Crim. App. 2007)

(discussing the rebuttable presumption that arises when the record shows no motion for new trial was filed). 7See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.

2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”). 8See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

Cryer may challenge our decision in the case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3 The trial court’s judgment is affirmed.

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on July 26, 2023 Opinion Delivered August 2, 2023 Do Not Publish

Before Golemon, C.J., Horton, and Wright JJ.