Anthony Barber v. State ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00361-CR
ANTHONY BARBER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1407138R
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MEMORANDUM OPINION1
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Appellant Anthony Barber pleaded guilty to assault bodily injury to a family
member with a prior family violence conviction and true to one of the two
convictions alleged in the enhancement notice. See Tex. Penal Code Ann.
§ 22.01(b)(2)(A) (West Supp. 2016). The jury assessed his punishment at 17
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See Tex. R. App. P. 47.4.
years’ confinement, and the trial court sentenced him accordingly. This appeal
followed.
On June 13, 2016, Barber’s court-appointed appellate counsel filed a
motion to withdraw as counsel and a brief in support of that motion. Counsel’s
brief and motion meet the requirements of Anders v. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. See 386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with
Kelly v. State, counsel notified Barber of his motion to withdraw, provided him a
copy of the brief, informed him of his right to file a pro se response, informed him
of his pro se right to seek discretionary review should this court hold the appeal is
frivolous, and took concrete measures to facilitate Barber’s review of the
appellate record. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
On July 1, 2016, Barber filed an “Appellant’s Pro Se Request for the
Appellate Record.” On the same date, we ordered the trial court clerk to make a
copy of the record available to Barber by July 15, 2016. On July 6, 2016, the trial
court clerk filed a letter showing that it had complied with our order.
On July 8, 2016, after Barber had indicated that he wanted to continue the
appeal pro se, we sent a letter to him stating that he had until September 6,
2016, to file a brief. On August 29, 2016, Barber filed a “Motion For Extension of
Time” to file his brief, which we granted on September 1, 2016. We extended the
time to file Barber’s pro se brief until November 7, 2016.
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After Barber failed to file a pro se brief, on November 29, 2016, we sent
the State a notice that its response, if any, to Barber’s counsel’s motion to
withdraw was due December 29, 2016. On December 5, 2016, the State filed a
letter indicating that it would not be filing any response.
On December 30, 2016, Barber filed a second “Motion For Extension of
Time,” asserted his pro se brief (not the State’s response) was due December
29, 2016, and requested an additional 60 days to file his brief. On January 5,
2017, we denied Barber’s motion.
Because Barber failed to file a pro se brief for more than six months after
his appointed counsel filed the motion to withdraw and the Anders brief, we
consider this appeal without a response to the Anders brief filed by Barber’s
court-appointed counsel. See generally Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (requiring court to allow appellant to file brief raising points but not requiring
court to wait for appellant to file brief before setting case for submission); Deason
v. State, No. 02-15-00213-CR, 2016 WL 1713464, at *1–2 (Tex. App.—Fort
Worth Apr. 28, 2016, no pet.) (mem. op., not designated for publication) (deciding
case without pro se appellant brief where appellant was given the opportunity to
file a brief but did not do so); Hibler v. State, No. 02-14-00016-CR, 2015 WL
1407744, at *1 (Tex. App.—Fort Worth Mar. 26, 2015, pet. ref’d) (mem. op., not
designated for publication) (same).
As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
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frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only
then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.
75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. We agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing in
the record that arguably might support an appeal. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant
counsel’s motion to withdraw and affirm the trial court’s judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: LIVINGSTON, C.J.; KERR and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 23, 2017
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