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Richard Cryer v. the State of Texas ( 2023 )


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  •                                  In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00110-CR
__________________
RICHARD CRYER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 13,605
__________________________________________________________________
MEMORANDUM OPINION
Richard Cryer, represented by court-appointed counsel, was
convicted in a trial to a jury of aggravated assault with a deadly weapon,
a second-degree felony. 1 The jury assessed punishment and sentenced
him to prison for twenty years. The attorney appointed to represent
1See
    Tex. Penal Code Ann. § 22.02
    (a)(2).
1
Cryer filed a notice of appeal, and then filed an Anders brief in his
appeal. 2
In the brief, Cryer’s attorney represents there are no arguable
reversible errors to be addressed in Cryer’s appeal. 3 The brief filed by the
attorney contains a professional evaluation of the record. In the brief,
Cryer’s attorney explains why, under the record in Cryer’s case, no
arguable issues exist to reverse the trial court’s judgment.4 Cryer’s
attorney also represented that he sent Cryer a copy of the brief and the
record. When the brief was filed, the Clerk of the Ninth Court of Appeals
notified Cryer, by letter, that he could file a pro se brief or response with
the Court on or before January 9, 2023. Cryer, however, failed to respond.
When an attorney files an Anders brief, we are required to
independently examine the record and determine whether the attorney
assigned to represent the defendant has a non-frivolous argument that
would support the appeal. 5 In this appeal, the record does not show that
2See Anders v. California,
    386 U.S. 738
    , 744 (1967).
3See id.; High v. State,
    573 S.W.2d 807
     (Tex. Crim. App. 1978).
4Id.
5Penson v. Ohio,
    488 U.S. 75
    , 80 (1988) (citing Anders, 386 U.S. at
744).
2
Cryer’s attorney filed a motion for new trial when the case was in the
trial court, and it also does not show that Cryer’s attorney filed a motion
to withdraw after he filed the notice of appeal. Because Cryer was
represented by counsel when he was in the trial court and the record
shows he didn’t file a motion for new trial, rebuttable presumption exists
that requires this Court to assume that Cryer considered and rejected
that option. 6
After reviewing the clerk’s record, the reporter’s record, and the
attorney’s brief, we agree there are no arguable grounds to support this
appeal. Thus, it follows the appeal is frivolous. 7 For that reason, we need
not require the trial court to appoint another attorney to re-brief the
appeal. 8
6Cooks v. State,
    240 S.W.3d 906
    , 911 n.6 (Tex. Crim. App. 2007)
(discussing the rebuttable presumption that arises when the record
shows no motion for new trial was filed).
7See 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
requirements of Texas Rule of Appellate Procedure 47.1.”).
8See Stafford v. State,
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991).
Cryer may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3
The trial court’s judgment is affirmed.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on July 26, 2023
Opinion Delivered August 2, 2023
Do Not Publish
Before Golemon, C.J., Horton, and Wright JJ.
4