Brandon Michael Breth v. State ( 2017 )

Opinion filed July 20, 2017
In The
Eleventh Court of Appeals
__________
No. 11-17-00001-CR
__________
BRANDON MICHAEL BRETH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 26337A
MEMORANDUM OPINION
Based upon an open plea of guilty in this cause, the trial court convicted
Brandon Michael Breth of the offense of assault family violence. The offense was
enhanced by a prior conviction for assault against a family member, and the
punishment was further enhanced by a prior felony conviction for the assault of a
public servant—allegations to which Appellant pleaded true. The trial court held a
hearing as to punishment, convicted Appellant of the offense, found the
enhancement allegation to be true, and assessed Appellant’s punishment at
confinement for twelve years. We dismiss the appeal.
Appellant’s counsel has filed a motion to withdraw. The motion is supported
by a brief in which counsel professionally and conscientiously examines the record
and applicable law and concludes that the appeal is frivolous and without merit.
Counsel has provided Appellant with a copy of the brief, the motion to withdraw,
and a motion for pro se access to the appellate record. Counsel also advised
Appellant of his right to review the record and file a response to counsel’s brief.
Appellant has not filed a response.1
Court-appointed counsel has complied with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim.
App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161
S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In addressing an Anders brief and
pro se response, a court of appeals may only determine (1) that the appeal is wholly
frivolous and issue an opinion explaining that it has reviewed the record and finds
no reversible error or (2) that arguable grounds for appeal exist and remand the cause
to the trial court so that new counsel may be appointed to brief the issues. Schulman,
252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005). Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree that the appeal is without merit and
should be dismissed. See Schulman, 252 S.W.3d at 409.
1
This court granted Appellant thirty days in which to exercise his right to file a response to counsel’s
brief.
2
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of Criminal
Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal cases, the
attorney representing the defendant on appeal shall, within five days after the
opinion is handed down, send his client a copy of the opinion and judgment, along
with notification of the defendant’s right to file a pro se petition for discretionary
review under Rule 68.”). Likewise, this court advises Appellant that he may file a
petition for discretionary review pursuant to TEX. R. APP. P. 68.
We grant the motion to withdraw, and we dismiss the appeal.
PER CURIAM
July 20, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
3