Opinion
05-22-00187-CR
04-18-2023
BRENDAN POTTER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-82314-2020
Before Justices Pedersen, III, Goldstein, and Smith
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
Appellant, Brendan Potter, was indicted by a grand jury for the first-degree felony offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03. Specifically, the State alleged that on or about April 30, 2020, appellant, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally and knowingly threatened or placed the victim in fear of imminent bodily injury or death and used or exhibited a deadly weapon-a firearm. Appellant entered into an open plea, pleading guilty to the offense as charged, including a deadly weapon finding, and agreeing to submit the issue of punishment to the trial court.
The trial court conducted a punishment trial, found that appellant was competent to make his plea and did so freely and voluntarily, found appellant guilty of aggravated robbery as charged in the indictment, and assessed appellant's punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion to reconsider his sentence, asking the trial court to place him on deferred adjudication instead of sentencing him to ten years' imprisonment. The trial court granted appellant's motion and held a new punishment hearing. The trial court took judicial notice of the prior hearing and the testimony given at that hearing. Appellant's trial counsel established for the record that he had talked with appellant about new evidence the State planned to present at the hearing and that his sentence could increase as a result. After hearing new evidence from the State and the defense, the trial court again assessed appellant's punishment at ten years' confinement. This appeal followed.
On appeal, appointed counsel filed a motion to withdraw, supported by an Anders brief. The brief establishes counsel's diligent review of the record, including each stage of the proceeding, such as the indictment, plea agreement, punishment trial, and judgment, as well as the sufficiency of the evidence, adverse rulings, counsel's performance, and back time calculations. Counsel cited relevant law and provided record citations in his review. Based on counsel's professional evaluation of the record, counsel determined that there is no legal or factual issues that could arguably be raised for appellate review and that this appeal is frivolous and without merit.
Anders v. California, 386 U.S. 738 (1967).
Counsel provided appellant with a copy of the brief and informed him of his rights to review the record, file a pro se brief, and seek discretionary review should this Court conclude the appeal is frivolous. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This Court also provided notice to appellant of his right to request a copy of the record and to file a pro se response. Although appellant requested a copy of the record and a copy was provided to him by counsel, he did not file a pro se brief. The State also did not file a brief in this appeal.
We conclude that counsel's brief and motion meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. [Panel Op.] 1978). Additionally, we have independently reviewed the record and conclude there are no arguable grounds to present on appeal. See Stafford, 813 S.W.2d at 511. We agree that the appeal is frivolous and without merit.
Therefore, we grant counsel's motion to withdraw and affirm the judgment of conviction.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.