Kori Leanne Delcourt v. the State of Texas ( 2023 )

Opinion issued October 31, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00261-CR
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KORI LEANNE DELCOURT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 174th Judicial District Court
Harris County, Texas
Trial Court Case No. 1660661
MEMORANDUM OPINION
Kori Leanne Delcourt was found guilty after a jury trial of the state jail felony
offense of injury to a child by criminal negligence and appeals the trial court’s
judgment finding her guilty and sentencing her to 180 days’ confinement, suspended
for three years’ community supervision. See TEX. PENAL CODE § 22.04(a)(3), (g).
The trial court certified that this was not a plea-bargain case, and that Delcourt had
the right of appeal. See TEX. R. APP. P. 25.2(a)(2). Delcourt timely appealed, and
appellate counsel was appointed. Appellate counsel has moved to withdraw and
submitted an Anders brief,1 declaring there are no nonfrivolous bases for appeal.
Delcourt did not file a pro se brief, and the State waived its right to respond to the
Anders brief. We grant counsel’s motion and affirm.
Anders Procedures
When appointed counsel believes an appeal by a criminal defendant is
frivolous, counsel may file both a motion to withdraw and an Anders brief. In re
Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (citing Anders v.
California, 386 U.S. 738, 744 (1967)). An Anders brief reflects the fact that counsel
has adequately researched the case before deciding to withdraw. Id. at 407. It sets
out counsel’s due diligence, informs the client, and provides a roadmap for the
appellate court’s review of the record. Id. It also assists the client by providing
citations to the record if she wishes to exercise her right to file a pro se brief. Id. at
407–08. An Anders brief is appropriate only when counsel has mastered the record
and the evidence and determines that there are no sustainable grounds for appeal.
Banks v. State, 341 S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2009, order),
disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston [1st
1
See Anders v. California, 386 U.S. 738 (1967).
2
Dist.] Mar. 11, 2010, no pet.) (mem. op., not designated for publication). If counsel
finds that the appeal contains potentially meritorious grounds, counsel must file a
merits brief with the court. In re Schulman, 252 S.W.3d at 406 n.9; Banks, 341
S.W.3d at 430; see Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App.
1991).
If counsel determines that potential grounds for appeal exist but that those
grounds would be frivolous, counsel must explain those grounds for appeal with
citations to applicable legal authority and pertinent evidence. In re Schulman, 252
S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should “point out where pertinent
testimony may be found in the record, refer to pages in the record where objections
were made, the nature of the objection, the trial court’s ruling, and discuss either
why the trial court’s ruling was correct or why the appellant was not harmed by the
ruling of the court.” High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).
The purpose of this requirement is to convince the courts of appeals that counsel has
given due consideration to any potential ground for appeal before dismissing it as
frivolous. See In re Schulman, 252 S.W.3d at 407–09 (stating courts of appeals will
not grant motion to withdraw if Anders brief does not show that record was carefully
reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing both legal
authority and potential grounds for appeal); Banks, 341 S.W.3d at 431 (same).
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Even when counsel believes that there are no grounds that might convince an
appellate court, counsel must still file an Anders brief, and the Anders brief must
direct the court of appeals to the portions of the record that could have created error
but did not. Banks, 314 S.W.3d at 431. Counsel may not provide a mere conclusory
statement that no grounds for appeal exist. In re Schulman, 252 S.W.3d at 406–07;
see Anders, 386 U.S. at 742. While the courts of appeals have a supervisory role,
they should not have to pour over the record to determine that counsel has completed
a thorough review of the record. Banks, 341 S.W.3d at 431. If we conclude, after
conducting an independent review, that “appellate counsel has exercised
professional diligence in assaying the record for error” and agree that the appeal is
frivolous, we should grant counsel’s motion to withdraw, Meza v. State, 206 S.W.3d
684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s judgment. In re
Schulman, 252 S.W.3d at 409.
In this Anders brief, counsel has discussed that this appeal is meritless and
frivolous because the record contains no reversible error. Counsel specifically
discussed and briefed: (1) voir dire; (2) the sufficiency of the evidence;
(3) ineffective assistance of counsel; (4) the jury charge; and (5) Delcourt’s
punishment. Delcourt did not file a response, and the State declined to respond to
the Anders brief.
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If appellant’s counsel moves to withdraw because an appeal is frivolous and
fulfills the Anders requirements, we must independently examine the record to see
if there is any arguable ground that might be raised on an appellant’s behalf. Stafford,
813 S.W.2d at 511. When performing this evaluation, we consider the record, the
arguments raised in the Anders brief, and any issues that an appellant might raise in
a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward may we grant
counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).
We have scrutinized counsel’s Anders brief, the State’s waiver of its right to
respond to the Anders brief, and the appellate record. We agree with counsel that
this appeal is meritless and frivolous. Bledsoe v. State, 178 S.W.3d 824, 827–28
(Tex. Crim. App. 2005).
Conclusion
We grant counsel’s motion to withdraw and affirm the trial court’s judgment.
Counsel must immediately send the required notice and file a copy of that notice
with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
Sarah Beth Landau
Justice
Panel consists of Justices Kelly, Landau, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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