Thurston Rickey-Lee Davis v. State

Opinion

Opinion issued December 19, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00858-CR ——————————— THURSTON RICKEY-LEE DAVIS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 230th District Court Harris County, Texas Trial Court Cause No. 1571123

MEMORANDUM OPINION Appellant, Thurston Rickey-Lee Davis, was found guilty after a jury trial of

the first-degree felony offense of aggravated robbery with a deadly weapon. See

TEX. PENAL CODE § 29.03(a)(2), (b). At appellant’s election, the trial court assessed

his punishment at 25 years’ confinement. This sentence is within the applicable sentencing range. See TEX. PENAL CODE §§ 12.32(a), 29.03(b). The trial court

certified that this was not a plea-bargain case, and that appellant had the right of

appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal and

new counsel was appointed.

Appellant’s appointed counsel has filed a motion to withdraw, along with an

Anders brief stating that the record presents no reversible error and that, therefore,

the appeal is without merit and is frivolous. See generally Anders v. California, 386

U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record and supplying this Court with references to the

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

Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and

that he is unable to advance any grounds of error that warrant reversal. See Anders,

386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

Appellant’s counsel has informed us that he has delivered a copy of the motion

to withdraw and the Anders brief to appellant and informed appellant of his right to

file a pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App.

2008) (orig. proceeding). Furthermore, counsel has certified that he sent appellant

the form motion for pro se access to the records for his response. See Kelly v. State,

2 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant filed a pro se response to

his counsel’s Anders brief.

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

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

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744 (emphasizing that 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) (explaining that reviewing court must

determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d

824, 826–27 (Tex. Crim. App. 2005) (explaining that reviewing court need not

address merits of each claim raised in Anders brief or pro se response after

determining no arguable grounds for review exist); Mitchell, 193 S.W.3d at 155. An

appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Texas Court of Criminal Appeals.

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

Accordingly, we affirm the judgment of the trial court and grant counsel’s

motion to withdraw.1 See TEX. R. APP. P. 43.2(a). Assistant Public Defender

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

1 Appointed counsel still has a duty to inform appellant 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, 178 S.W.3d at 826–27; TEX. R. APP. P. 48.4. 3 notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other

pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justice Keyes and Hightower.

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