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Payne v. State

Court of Appeals Ninth District of Texas at Beaumont
Aug 2, 2017
NO. 09-16-00362-CR (Tex. App. Aug. 2, 2017)

Opinion

NO. 09-16-00362-CR

08-02-2017

JOHN DAVID PAYNE, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 15-11-12010-CR

MEMORANDUM OPINION

In this appeal, John David Payne's appellate counsel filed a brief in which he contends that no arguable grounds can be advanced to support a decision reversing Payne's conviction for online solicitation of a minor. See Tex. Penal Code Ann. § 33.021(c) (West Supp. 2016). Although usually online solicitation of a minor is punishable as a third-degree felony, because Payne had two previous felony convictions, he was subject to a potential sentence of life in prison. See id. § 12.42(d) (West Supp. 2016) (providing enhanced penalties for repeat and habitual felony offenders), § 33.021(f) (West Supp. 2016) (providing that a conviction for online solicitation of a minor fourteen or older is a third-degree felony). The jury found that Payne should serve a life sentence. Based on our review of the record, we agree with Payne's counsel that no arguable issues exist to support his appeal. See Anders v. California, 386 U.S. 738 (1967).

We cite to the current version of the Penal Code, as the amendments made to the cited statutes do not affect this appeal.

In 2016, a jury found Payne guilty of online solicitation of a minor. Following a punishment hearing, and based on its findings that Payne committed two prior felonies as charged in the indictment, the jury found that Payne should serve a life sentence. Subsequently, the trial court sentenced Payne to serve a sentence of life in prison and Payne appealed.

In his appeal, Payne's counsel filed a brief presenting counsel's professional evaluation of the record. In the brief, Payne's counsel concludes that any appeal would be frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). After receiving the Anders brief, we granted an extension of time to allow Payne an opportunity to file a pro se response. However, no response was filed.

After reviewing the appellate record and the Anders brief filed by Payne's counsel, we agree with counsel's conclusion that an appeal on the current record would be frivolous. Therefore, we conclude it is not necessary to order that new counsel be appointed to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring the court of appeals to appoint other counsel only if it determines that there were arguable grounds for the appeal). Given our conclusion that no arguable error exists to support Payne's appeal, we affirm the trial court's judgment.

Payne may challenge our decision in the case by filing a petition for discretionary review. See Tex. R. App. P. 68.

AFFIRMED.

/s/_________

HOLLIS HORTON

Justice Submitted on May 25, 2017
Opinion Delivered August 2, 2017
Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.


Summaries of

Payne v. State

Court of Appeals Ninth District of Texas at Beaumont
Aug 2, 2017
NO. 09-16-00362-CR (Tex. App. Aug. 2, 2017)
Case details for

Payne v. State

Case Details

Full title:JOHN DAVID PAYNE, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Ninth District of Texas at Beaumont

Date published: Aug 2, 2017

Citations

NO. 09-16-00362-CR (Tex. App. Aug. 2, 2017)