Justin Berard v. State ( 2018 )

Opinion issued January 23, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00662-CR
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JUSTIN BERARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 184th District Court
Harris County, Texas
Trial Court Cause No. 1491118
MEMORANDUM OPINION
Appellant, Justin Berard, pleaded guilty to the second-degree felony offense
of robbery—bodily injury, without an agreed punishment recommendation, pending
a pre-sentencing investigation (“PSI”) report and hearing.1 After the PSI hearing,
1
See TEX. PENAL CODE ANN. § 29.02(a)(1), (b) (West 2017).
the trial court found appellant guilty as charged and assessed his punishment at
fifteen years’ confinement. This sentence is within the applicable sentencing range.2
The trial court certified that this was not a plea-bargain case, and that appellant had
the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice
of appeal and new counsel was appointed.
Appellant’s appointed counsel 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 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 she has
thoroughly reviewed the record and that she 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 she has delivered a copy of the
motion to withdraw and Anders brief to appellant and informed him of his right to
access the appellate record and file a pro se response. See In re Schulman, 252
S.W.3d 403, 408 (Tex. Crim. App. 2008). Furthermore, counsel has certified that
2
See TEX. PENAL CODE ANN. § 12.33(a) (West 2017).
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she has sent a copy of the appellate record to appellant for his response. See Kelly
v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has not filed any
pro se response to his counsel’s Anders brief and his deadline has expired.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and 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); Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim
raised in Anders brief or pro se response after determining there are no arguable
grounds for review); 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.
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw.3 See TEX. R. APP. P. 43.2(a). Attorney Cheri Duncan must
3
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
3
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 Chief Justice Radack and Justices Higley and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005).
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