Timothy Eugene Tew v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 13, 2024
• Docket: 02-23-00203-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00203-CR ___________________________

TIMOTHY EUGENE TEW, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 485th District Court Tarrant County, Texas Trial Court No. 1687675

Before Kerr, Birdwell, Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant Timothy Eugene Tew agreed to a charge bargain in which he pleaded

guilty to the offense of second-degree assault under Section 22.01(b–3) of the Texas

Penal Code and true to the repeat-offender notice in exchange for the State’s waiving

six other counts. See Tex. Penal Code Ann. § 22.01(b–3). The enhancement raised

the punishment range to that of a first-degree felony—imprisonment for life or any

term of years of not more than 99 years or less than 5 years and a fine not to exceed

$10,000. See id. §§ 12.32, 12.42(b). Tew also agreed to have the trial court assess

punishment. After a hearing, the trial court sentenced Tew to ten years in prison.

Tew filed a notice of appeal, and the trial court granted him permission to

appeal. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (holding that

charge bargains that cap a defendant’s maximum punishment fall within

Rule 25.2(a)(2)’s prohibition); see also Tex. R. App. P. 25.2(a)(2)(B) (providing an

exception to the prohibition of appeals following a plea bargain).

Tew’s court-appointed attorney has filed a motion to withdraw as counsel and a

brief in support of that motion. He concludes that, in his professional opinion, the

appeal is frivolous.

Counsel’s motion and brief meet the requirements of Anders v. California,

386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967), by professionally evaluating the

appellate record and showing why no arguable grounds for relief exist. See Stafford v.

State, 813 S.W.2d 503, 510–11 & n.3 (Tex. Crim. App. 1991). Tew filed a pro se

2 response to counsel’s Anders brief. The State filed a letter response in which it agreed

with Tew’s counsel that his appeal presented no meritorious grounds to advance.

After an appellant’s court-appointed counsel files a motion and brief fulfilling

the Anders requirements, we must independently examine the record for any arguable

ground that may be raised on the appellant’s behalf. See Stafford, 813 S.W.2d at 511.

Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75,

82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed counsel’s brief, Tew’s response, and the appellate

record. We agree with counsel that the appeal is wholly frivolous and without merit;

we find nothing in the appellate record that arguably might support the appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State,

206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel’s

motion to withdraw and affirm the trial court’s judgment. See McCuin v. State, No. 02-

23-00075-CR, 2024 WL 853314, at *1 (Tex. App.—Fort Worth Feb. 29, 2024, no

pet.) (mem. op., not designated for publication).

/s/ Brian Walker

Brian Walker Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: June 13, 2024