Tometheus Lee Bryant v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00352-CR
TOMETHEUS LEE BRYANT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 14397-A
MEMORANDUM OPINION
Appellant Tometheus Lee Bryant was found guilty by a jury of the offense of
assault on a family/household member with a previous conviction. Bryant waived his
right to have the jury assess his punishment, and the trial court sentenced him to eight
years’ incarceration. Bryant appeals his conviction and sentence. We affirm the trial
court’s judgment as modified.
I. Anders Brief
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’s court-appointed appellate counsel has filed a brief and a motion
to withdraw with this Court, stating that his review of the record yielded no reversible
error upon which an appeal can be predicated. Counsel’s brief meets the requirements
of Anders as it presents a professional evaluation demonstrating why there are no
arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.
Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’
points of error if counsel finds none, but it must provide record references to the facts
and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State,
112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813
S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), Appellant’s counsel has carefully discussed why, under controlling authority,
there is no reversible error in the trial court’s judgment. Counsel has informed this Court
that he has: (1) examined the record and found no arguable grounds to advance on
appeal; (2) served a copy of the brief and counsel’s motion to withdraw on Appellant;
and (3) informed Appellant of his right to review the record and to file a pro se response.1
1 Given counsel’s assertion that he has “furnished Appellant with a copy of the Anders brief and
the appellate record . . . and . . . informed Appellant of the right to file a pro se brief or response” and the
fact that appellant has not filed a request for the appellate record, we have fair assurance that appellate
counsel has complied with the Court of Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313,
319-20 (Tex. Crim. App. 2014).
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See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman,
252 S.W.3d at 409 n.23.
Appellant has responded to the Anders brief and asserts that there are issues that
should be addressed on appeal. Appellant argues that his conviction was improper
because the State failed to provide exculpatory evidence and because the State’s
witnesses were not believable. Appellant specifically complains that the investigating
officer did not take photographs of an injury to Appellant’s hand that Appellant told him
was caused by the victim or of the key chain that Appellant alleged caused the injury.
Appellant additionally complains that the officer did not take a statement from him
regarding the injury to his hand or the events leading to his arrest. Appellant also asserts
that one of the witnesses talked about Appellant’s innocence when she came to visit
Appellant at the Limestone County Jail and that those recorded conversations were not
submitted into evidence. He also asserts that the air pump that the victim claimed he
threw at her was never fingerprinted or submitted into evidence. Appellant further
complains that the State did not analyze the combination of medications that the victim
was taking and have that data submitted into evidence. Appellant also contends that the
State withheld a witness’s mental health record. Appellant finally asserts that the victim
has a criminal record and that other witnesses who testified for the prosecution have a
“history of proven dishonest acts” that were not provided to him.
Appellant did not raise a Brady violation before the trial court. The failure to do
so precludes appellate review. TEX. R. APP. P. 33.1; Pena v. State, 353 S.W.3d 797, 807 (Tex.
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Crim. App. 2011). Even if Appellant’s issues are preserved for review, they are without
merit.
Prosecutors have an affirmative duty to turn over material, favorable evidence to
the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215
(1963). The duty to disclose encompasses impeachment evidence as well as exculpatory
evidence. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). The first step in
establishing a Brady violation is for a defendant to show that the State failed to disclose
evidence which was known to the prosecution but was unknown to the defense. Ex parte
Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The prosecution is not required to
disclose exculpatory information that the State does not have in its possession and that is
not known to exist. Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006). Nor is the
State required “to seek out exculpatory evidence independently on appellant’s behalf, or
furnish appellant with exculpatory or mitigating evidence that is fully accessible to
appellant from other sources.” Id.
The majority of the evidence identified by Appellant was disclosed to the defense
prior to trial. Appellant’s attorney signed for a List of Released Discovery on May 18,
2018. The discovery included offense reports, two in-car videos, photographs, the
victim’s statement, dispatch call notes and 9-1-1 call recording, and related radio
communications. Subsequent deliveries to the defense consisted of a CD of jail calls,
letters by appellant to the prosecutor, paperwork related to prior convictions, another CD
of appellant’s jail phone calls, photographs of the victim’s apartment, and an apartment
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complex diagram. The State also gave Notice of Criminal History of all of the witnesses
who testified for the State prior to trial.
Appellant provides nothing to indicate that either the mental health records of one
witness or a “history of proven dishonest acts” attributed to some of the witnesses was
information that was in the prosecution’s possession or that was inaccessible to appellant
from other sources. Further, the State had no duty to photograph appellant’s injury or to
fingerprint the air pump. Finally, the remainder of appellant’s claims were issues related
to the credibility of the witnesses who testified, including appellant. By its verdict, the
jury found the victim’s testimony of the events that occurred more credible than
appellant’s.
II. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record,
counsel’s brief, and appellant’s pro se response and have not found reversible error in this
matter. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the
nature of Anders briefs, by indicating in the opinion that it considered the issues raised in
the briefs and reviewed the record for reversible error but found none, the court of
appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813
S.W.2d at 509. However, there is non-reversible error in the judgment regarding court
costs.
Bryant v. State Page 5
In his Anders brief, appellate counsel argues that we should modify the judgment
to delete $22.50 of the court costs assessed against appellant because section 133.103(b)
and (d) of the Local Government Code is unconstitutional. In Simmons v. State, this Court
held that section 133.103(b) and (d) is facially unconstitutional because the collected funds
are sent into a general-revenue fund and are not sufficiently related to the criminal-justice
system or a legitimate criminal-justice purpose. No. 10-18-00269-CR, ___ S.W.3d ___,
2019 Tex. App. LEXIS ____ * __ (Tex. App.—Waco Nov. 27, 2019, no pet. h.) (citing Johnson
v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). In accord
Dulin v. State, 583 S.W.3d 351, 354 (Tex. App.—Austin Aug. 14, 2019, pet. filed);
Kremplewski v. State, No. 01-19-00033-CR, ___ S.W.3d. ___, 2019 Tex. App. LEXIS 6919, at
**5-8 (Tex. App.—Houston [1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No. 11-17-
00179-CR, 2019 Tex. App. LEXIS 5902, at **13-14 (Tex. App.—Eastland July 11, 2019, pet.
filed) (mem. op., not designated for publication)). Based on our precedent, abatement to
the trial court for the appointment of new counsel is not required. See Ferguson v. State,
435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. dism’d). Because this error does not
impact the determination of guilt or punishment and, therefore, does not result in a
reversal of the judgment, we may modify the judgment to correct the erroneous
assessment of $22.50 in court costs. Id. Accordingly, we modify the judgment to delete
$22.50 from the court costs imposed and affirm the trial court’s judgment as modified.
III. Motion to Withdraw
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at
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1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,
779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant. To withdraw from representation,
the appointed attorney must file a motion to withdraw accompanied by a brief showing
the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s
motion to withdraw. Notwithstanding counsel’s discharge, within five days of the date
of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant and to advise him of his right to file a petition for discretionary
review.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte
Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
2 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing
or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of
Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the
requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman,
252 S.W.3d at 409 n.22.
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Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
Do not publish
[CR25]
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