Russell Don Sneed v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00372-CR
RUSSELL DON SNEED,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-1505-C1
MEMORANDUM OPINION
Russell Don Sneed was convicted of the offense of felony driving while
intoxicated and was sentenced to life in prison as a habitual offender based on pleas of
true to two prior convictions. In his first appeal, we reversed the judgment and
remanded the case for a new punishment hearing. Sneed v. State, No. 10-11-00231-CR,
2012 WL 2866304 (Tex. App.—Waco July 12, 2012, no pet.). On remand, Sneed entered
into a plea bargain on punishment for a twenty-five year sentence. Sneed filed a notice
of appeal, and the trial court certified that Sneed’s case is a plea-bargain case but that
the trial court has given permission to appeal and that Sneed has the right of appeal.
Sneed’s appointed appellate counsel has filed a motion to withdraw and an
Anders brief, asserting that he has diligently reviewed the appellate record and that, in
his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967).
Sneed has filed a pro se response to the Anders brief. Sneed asserts that a term of
the plea agreement is that he can appeal his original conviction on guilt-innocence, but,
other than the template language in the trial court’s certification, nothing in the record
supports that assertion.1 Sneed then argues that, under Missouri v. McNeely, 133 S. Ct.
1552, 185 L. Ed. 2d 696 (2013), the results of his involuntary and warrantless blood draw
should have been suppressed. Even if Sneed could appeal guilt-innocence issues, in his
original trial, no motion to suppress the results of his involuntary and warrantless
blood draw was filed and ruled on, and no objection was made to the admission of the
blood-sample results.2 See TEX. R. APP. P. 33.1(a)(1); Fuller v. State, 253 S.W.3d 220, 232
(Tex. Crim. App. 2008) (“In fact, almost all error—even constitutional error—may be
forfeited if the appellant failed to object.”). Therefore, the issue has not been preserved
for appellate review and would be wholly frivolous.
Sneed also argues that if, in his first appeal, we had remanded his case for a new
trial on guilt-innocence, he could have filed a motion to suppress the blood-sample
results under McNeely, which was delivered after his original trial and after our July 12,
1
Sneed cites to the State’s “disclosure of plea recommendation” as record support for his assertion, but it
does not mention the appealability of Sneed’s original conviction; nor does the punishment-hearing
record on remand.
2
The Anders brief correctly notes that the issue was not preserved in the original trial.
Sneed v. State Page 2
2012 decision. But we remanded the case for a new punishment hearing only, and the
Anders brief correctly notes that the issue could not have been considered by the trial
court in a punishment hearing. Sneed further seeks a new trial on guilt-innocence
because of the subsequent McNeely decision so that he can seek to suppress the blood-
sample results under McNeely, but we cannot grant that relief in a direct appeal from a
punishment-only hearing. We thus conclude that Sneed’s pro se response does not raise
any non-frivolous issues.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.
State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988).
We have conducted an independent review of the record, and because we find
this appeal to be wholly frivolous, we affirm the judgment. We grant appointed
counsel’s motion to withdraw from representation of Sneed. Notwithstanding this
grant, appointed counsel must send Sneed a copy of our decision, notify him of his
right to file a pro se petition for discretionary review, and send this Court a letter
certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.
APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 25, 2014
Do not publish
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