Opinion
NO. 03-17-00519-CR
05-18-2018
John Frederick Mouton, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-16-301074 , THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING MEMORANDUM OPINION
Appellant John Frederick Mouton was indicted for murder, see Tex. Penal Code § 19.02(b)(1), (2), but a jury convicted him of the lesser included offense of manslaughter, see id. § 19.04. The jury assessed his punishment at confinement in the Texas Department of Criminal Justice for ten years and recommended that the trial judge suspend imposition of the sentence and place appellant on community supervision. See id. § 12.33; Tex. Code Crim. Proc. art. 42A.055(a). In accordance with the jury's verdict and recommendation, the trial court sentenced appellant to ten years in prison but suspended imposition of the sentence and placed him on community supervision for ten years. See Tex. Code Crim. Proc. arts. 42A.053(d)(2)(A), 42A.055 (c).
Appellant's court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75, 81-82 (1988).
Appellant's counsel has certified to this Court that he sent copies of the motion and brief to appellant, advised appellant of his right to examine the appellate record and file a pro se response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant did not file a motion requesting access to the record, and, to date, has not filed a pro se response or requested an extension of time to file a response.
We have conducted an independent review of the record—including the record of the trial proceedings below and appellate counsel's brief—and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous. Counsel's motion to withdraw is granted. The trial court's judgment of conviction is affirmed.
Appointed counsel certified to this Court that he advised appellant of his right to seek discretionary review pro se should this Court declare his appeal frivolous. In addition, appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal. Nevertheless, appointed counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which mandates that counsel send appellant a copy of this Court's opinion and judgment along with notification of his right to file a pro se petition for discretionary review within five days after this opinion is handed down. See Tex. R. App. P. 48.4; see In re Schulman, 252 S.W.3d 403, 411 n.35 (Tex. Crim. App. 2008). The duty to send appellant a copy of this Court's decision is an informational one, not a representational one. See In re Schulman, 252 S.W.3d at 411 n.33. It is ministerial in nature, does not involve legal advice, and exists after this Court has granted counsel's motion to withdraw. See id.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: May 18, 2018 Do Not Publish