Travoris Ray Bennett v. State ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00195-CR

                                                ______________________________

                                 TRAVORIS RAY BENNETT, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                        On Appeal from the 71st Judicial District Court

                                                           Harrison County, Texas

                                                         Trial Court No. 10-0215X

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Travoris Ray Bennett appeals from his conviction on his open plea of guilty to burglary of a habitation with intent to commit sexual assault.  Tex. Penal Code Ann. § 30.02 (Vernon 2003). Bennett was sentenced by the trial court to thirty years’ imprisonment.  He was represented by different appointed counsel at trial and on appeal. 

            Bennett’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail.  Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. He also raises one potentially arguable ground (disproportionate sentence), but recognizes that it was not preserved for appeal.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief to Bennett along with his motion to withdraw as counsel, on November 24, 2010, informing Bennett of his right to file a pro se response and of his right to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.  Bennett filed his response January 19, 2011.  It appears that the response was transcribed by another person, and largely suggests that Bennett cannot read and write, and then suggests we should disregard his statements in the record that he could do so.  The suggestion is also made that he is mentally dysfunctional, has a low IQ, and thus could not have understood (and did not understand) the proceedings.  

            However, those statements are all outside the record. The presentence investigation (PSI) report considered by the court shows that Bennett dropped out of school in the ninth grade, that he attended special education classes, that he stated that he has difficulty reading and writing, and that he had been diagnosed as learning disabled at age twenty-five.  The appellate record further shows that he was admonished orally by the trial court as well as in writing, with considerable pains taken by the court to ensure that Bennett understood what was occurring, and Bennett’s answers were clear and concise.  The record provides no support for the present suggestion that Bennett was in such a mental state as would justify a reversal, and without such support in the record, there is no arguable issue shown that could be raised on appeal.

            We have independently reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            In a frivolous appeal, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed.  See Anders, 386 U.S. 738.  We find the appeal to be wholly frivolous.

            We affirm the judgment of the trial court.^[1]

                                                                                   Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          February 14, 2011

Date Decided:             February 18, 2011

Do Not Publish          

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^[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of Bennett in this case.  No substitute counsel will be appointed.  Should Bennett wish to seek further review of this case by the Texas Court of Criminal Appeals, Bennett must either retain an attorney to file a petition for discretionary review or Bennett must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.