John Wesley Breedlove II v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00134-CR
___________________________
JOHN WESLEY BREEDLOVE II, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR14536
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
Appellant John Wesley Breedlove II appeals his conviction and forty-eight-year
sentence for the offense of continuous sexual abuse of a child. See Tex. Penal Code
Ann. § 21.02. Breedlove’s court-appointed appellate attorney has filed a motion to
withdraw as counsel and a brief in support of that motion. We grant counsel’s
motion to withdraw and affirm the trial court’s judgment.
In her motion to withdraw and supporting brief, counsel has determined, after
examining the appellate record, that no arguable grounds for appeal exist. See Anders
v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and
motion meet the Anders requirements, presenting a professional evaluation of the
entire record demonstrating why there are no arguable grounds for relief. Id.,87 S. Ct. at 1400. Although provided the opportunity to seek a copy of the appellate
record and to file a pro se response, Breedlove has not done so. Likewise, the State
did not respond to the Anders brief.
After carefully reviewing the record and counsel’s brief, we agree with counsel
that this appeal is wholly frivolous and without merit.1 See Stafford v. State, 813 S.W.2d
1In orders dated July 28, 2022, and May 22, 2023, we expressed concerns
regarding a potential ineffective-assistance-of-counsel claim. We have determined
that the issue cannot be successfully argued in this case on direct appeal. See Gomez v.
State, 552 S.W.3d 422, 432 (Tex. App.—Fort Worth 2018, no pet.) (citing Menefield v.
State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012)). But cf. Nava v. State,
415 S.W.3d 289, 308 (Tex. Crim. App. 2013) (noting that if trial counsel did not have
opportunity to explain action or inaction, we should not find deficient performance
unless the conduct was “so outrageous that no competent attorney would have engaged in
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503, 511 (Tex. Crim. App. 1991) (noting reviewing court’s duty to make independent
determination after reviewing record); see also Penson v. Ohio, 488 U.S. 75, 82–83,
109 S. Ct. 346, 351 (1988). Our independent review of the record reveals no arguable
grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We
therefore grant counsel’s motion to withdraw and affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 31, 2023
it.” (emphasis added)). “[T]he better procedural mechanism for pursuing a claim of
ineffective assistance is almost always through writ of habeas corpus proceedings.”
Tellez v. State, No. 04-18-00426-CR, 2019 WL 2271956, at *1 (Tex. App.—San
Antonio May 29, 2019, no pet.) (mem. op., not designated for publication) (citing
Freeman v. State, 125 S.W.3d 505, 511 (Tex. Crim. App. 2003) (Price, J., dissenting)).
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