Donald Frank McMath v. the State of Texas ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00072-CR
__________________
DONALD FRANK MCMATH, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A220319-R
__________________________________________________________________
MEMORANDUM OPINION
Donald Frank McMath appeals his conviction for sexual
performance by a child, a first-degree felony. 1 After filing the notice of
appeal, the trial court appointed an attorney to represent McMath in his
1See Tex. Penal Code Ann. § 43.25(c).
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appeal. The attorney discharged his responsibilities to McMath by filing
an Anders brief. 2
In the brief, McMath’s attorney represents there are no arguable
reversible errors to be addressed in McMath’s appeal. 3 The brief the
attorney filed contains a professional evaluation of the record. In the
brief, McMath’s attorney explains why, under the record in McMath’s
case, no arguable issues exist to reverse the trial court’s judgment.4
McMath’s attorney also stated that he sent McMath a copy of the brief
and the record. When the brief was filed, the Clerk of the Ninth Court of
Appeals notified McMath, by letter, that he could file a pro se brief or
response with the Court on or before November 7, 2023. McMath,
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 After reviewing the clerk’s record, the
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).
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reporter’s record, and the attorney’s brief, we agree there are no arguable
grounds to support the appeal. 6 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
The trial court’s judgment is affirmed.
AFFIRMED.
HOLLIS HORTON
Justice
Submitted on January 10, 2024
Opinion Delivered February 21, 2024
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
6See 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.”).
7Id. at 826.
8See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
McMath may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3