Opinion
09-22-00110-CR
08-02-2023
RICHARD CRYER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on July 26, 2023
On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,605
Before Golemon, C. J., Horton, and Wright JJ.
MEMORANDUM OPINION
HOLLIS HORTON, JUSTICE
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. The jury assessed punishment and sentenced him to prison for twenty years. The attorney appointed to represent Cryer filed a notice of appeal, and then filed an Anders brief in his appeal.
See Anders v. California, 386 U.S. 738, 744 (1967).
In the brief, Cryer's attorney represents there are no arguable reversible errors to be addressed in Cryer's appeal. 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. 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.
See id.; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
Id
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. In this appeal, the record does not show that 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.
Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744).
Cooks 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).
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. For that reason, we need not require the trial court to appoint another attorney to re-brief the appeal.
See 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.").
See 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.
The trial court's judgment is affirmed.
AFFIRMED.