Edward Bernard Davenport v. State ( 2015 )

Opinion issued December 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00275-CR
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EDWARD BERNARD DAVENPORT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 351st District Court
Harris County, Texas
Trial Court Cause No. 1213794
MEMORANDUM OPINION
Appellant, Edward Bernard Davenport, pleaded guilty to the reduced
second-degree felony offense of indecency with a child by contact, with the agreed
recommendation that he be placed on six years’ deferred adjudication community
supervision and register as a sex offender. See TEX. PENAL CODE ANN.
§§21.11(a)(1), (c), (d) (West Supp. 2014). In accordance with the terms of
appellant’s plea-bargain agreement, the trial court found sufficient evidence to find
him guilty, but deferred adjudicating appellant’s guilt, placed him on community
supervision for a six-year period, and required him to register as a sex offender in
2012. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2014).
After the State filed a first-amended motion to adjudicate his guilt, appellant
pleaded true to the alleged violations of the terms of his community supervision,
without an agreed recommendation as to punishment. See TEX. CODE CRIM. PROC.
ANN. art. 42.12 §§ 5(b), 21(e) (West Supp. 2014). The trial court found the
allegations true, adjudicated appellant guilty of indecency with a child by contact,
and assessed his punishment at twenty years’ confinement, within the applicable
punishment range. See TEX. PENAL CODE ANN. § 12.33(a) (West Supp. 2014).1
The trial court certified that this was not a plea-bargain case, and that appellant had
the right of appeal. 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, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders
1
The trial court set appellant’s sentence in this case to run concurrently with the
two-year sentence he received in his related trial court cause No. 1393017, which
is pending under appellate cause No. 01-14-00276-CR.
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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, 87 S.
Ct. at 1400; 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, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
Appellant’s counsel has informed us that he has delivered a copy of the
motion to withdraw and Anders brief to appellant and informed him of his right to
file a response after getting access to the record. See In re Schulman, 252 S.W.3d
403, 408 (Tex. Crim. App. 2008). Furthermore, a copy of the record has been sent
to appellant for review. See Kelly v. State, 436 S.W.3d 313, 322 (Tex. Crim. App.
2014). Appellant has not filed any response to his counsel’s Anders brief.
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, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not
counsel—determines, after full examination of proceedings, whether the 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);
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FBledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005); 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.
CONCLUSION
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw. See TEX. R. APP. P. 43.2(a).2 Attorney James Sidney
Crowley 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.
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
2
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, 178 S.W.3d at 826–27.
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