Deanton Shamond Burns v. State ( 2019 )

NO. 12-18-00226-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEANTON SHAMOND BURNS, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Deanton Shamond Burns appeals his conviction for evading arrest or detention with a
vehicle. 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). We affirm.
BACKGROUND
Arp Police Department Officer Joseph Keegan worked traffic enforcement when Appellant
passed him traveling at approximately one hundred miles per hour. When Officer Keegan
attempted to detain him, Appellant accelerated and continued to evade. Eventually, another officer
deployed “stop strips” that caused a tire in Appellant’s vehicle to deflate. Shortly thereafter,
Appellant stopped and fled on foot in a wooded area. Once taken into custody, Appellant told
Officer Keegan that he ran because he had an outstanding warrant for his arrest.
Appellant was arrested and indicted for evading arrest or detention with a motor vehicle, a
third degree felony. 1 Pursuant to a plea agreement, Appellant pleaded “guilty” to the offense.
However, the trial court rejected the agreement and set the case for an open plea of “guilty” before
1
See TEX. PENAL CODE ANN. 38.04(b)(2)(A) (West 2016).
a jury. 2 After a hearing on punishment, the jury sentenced Appellant to eight years of
imprisonment. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s appellate counsel filed a brief in compliance with Anders v. California and
Gainous v. State. Appellant’s counsel relates that he reviewed the record and found no reversible
error or jurisdictional defect. In compliance with High v. State, 573 S.W.2d 807 (Tex. Crim. App.
[Panel Op.] 1978), counsel’s brief contains a professional evaluation of the record demonstrating
why there are no arguable grounds to be advanced. 3
We considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We found no reversible error.
CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503 (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, we agree with counsel that the appeal is wholly frivolous. Accordingly,
we grant Appellant’s counsel’s motion for leave to withdraw and affirm the trial court’s judgment.
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, 252 S.W.3d at 411 n.35. Should Appellant
wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an
attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for
2
The rejection of the plea agreement was within the trial court’s discretion and a defendant has no absolute
right to enter into a plea agreement. See Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011); see also Morano
v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978) (holding that trial court may reject plea bargain and trial court
did not err in refusing to permit the appellant to withdraw his plea of guilty)
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. 436 S.W.3d 313, 319 (Tex. Crim. App.
2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and no pro se brief
has been filed.
2
discretionary review. Any petition for discretionary review must be filed within thirty days from
the date of either this opinion or the date that the last timely motion for rehearing was overruled
by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary
review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered May 15, 2019.
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
MAY 15, 2019
NO. 12-18-00226-CR
DEANTON SHAMOND BURNS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0746-18)
THIS CAUSE came to be heard on the appellate record and brief 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.
THE STATE OF TEXAS
MANDATE
*********************************************
TO THE 114TH DISTRICT COURT OF SMITH COUNTY, GREETING:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 7th
day of May, 2019, the cause upon appeal to revise or reverse your judgment between
DEANTON SHAMOND BURNS, Appellant
NO. 12-18-00226-CR; Trial Court No. 114-0746-18
By per curiam opinion.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
“Text goes here.”
WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.
WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of
Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the xx day of May, 2019.
KATRINA MCCLENNY, CLERK
By: _______________________________
Chief Deputy Clerk