Opinion
01-21-00395-CR
08-30-2022
TERRY EUGENE SMITH, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1620220
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
MEMORANDUM OPINION
PER CURIAM
Appellant, Terry Eugene Smith, was charged by indictment with aggravated assault of a public servant with a deadly weapon. See Tex. Penal Code § 22.02(a)(2), (b)(2)(B). Appellant pleaded not guilty, proceeded to jury trial, and was convicted by a jury of the lesser-included offense of aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(b). The trial court assessed a punishment of 20 years' confinement with 896 days' credit. This sentence is within the applicable range. Appellant timely filed a notice of appeal.
Appellant's appointed counsel on appeal 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 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; see also 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 certified that he mailed a copy of the motion to withdraw and the Anders brief to appellant and informed appellant of his right to file a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant did not request access to the record or file a pro se response.
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) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826- 28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim raised in Anders brief or pro se response after determining there are no arguable grounds for review); 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. See 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. See Tex. R. App. P. 43.2(a). Attorney Terrence Gaiser 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). We dismiss any other pending motions as moot.
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 v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).