Dennis Odell Metcalf v. the State of Texas ( 2021 )

NO. 12-20-00107-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DENNIS ODELL METCALF, § APPEAL FROM THE 392ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Dennis Odell Metcalf appeals his conviction for manslaughter. Appellant’s counsel filed
a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493(1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se
brief. We affirm.
BACKGROUND
Appellant was charged by indictment with murder by intentionally or knowingly causing
the death of an individual by shooting him with a firearm or, with intent to cause serious bodily
injury to an individual, committing an act clearly dangerous to human life that caused the death
of the individual by shooting him with a firearm. 1 Appellant pleaded “not guilty,” and a jury trial
commenced. The court’s charge included the lesser included offense of manslaughter, or
recklessly causing the death of an individual by shooting him with a firearm. After the trial
concluded, the jury found Appellant guilty of the lesser included offense of manslaughter, and
found that he used or exhibited a deadly weapon, to wit, a firearm during the commission of the
offense. Appellant also elected for the jury to assess punishment. After a punishment trial, the
1
See TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2019).
jury assessed Appellant’s punishment at twenty years of imprisonment and a $10,000.00 fine. 2
This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he
diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. From our
review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978), counsel’s brief presents a chronological summation of the procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. 3
Appellant filed a pro se response, arguing that the State knowingly introduced false
testimony from a witness, and that the State withheld exculpatory evidence, including a cellular
telephone, a glove, shell casings, a backpack, and ammunition. He also contends that the trial
court allowed what he described as “self-incriminating testimony” from a clinical psychologist at
the punishment phase of the trial. And finally, Appellant argues that the State’s attorney and
witnesses violated the motion in limine by referring to the deceased individual as the “victim.”
We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178
S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403,
407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so and finding no reversible error, Appellant’s counsel’s motion for leave
2
The offense of manslaughter is a second degree felony. See TEX. PENAL CODE ANN. § 19.04 (b) (West
2019). An individual guilty of a second degree felony shall be punished by imprisonment for any term of not more
than twenty years or less than two years, and a fine not to exceed $10,000.00. See id. § 12.33 (West 2019).
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief.
2
to withdraw is hereby granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P.
43.2.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 22 S.W.3d at 411 n.35. Should
Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review or he must file a pro se
petition for discretionary review. See In re Schulman, 22 S.W.3d at 408 n.22. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion, or if a
motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by
this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary
review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 22 S.W.3d at 408 n.22.
Opinion delivered August 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 18, 2021
NO. 12-20-00107-CR
DENNIS ODELL METCALF,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR17-0840-392)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.