Larry Tony Rasberry v. the State of Texas ( 2023 )

Opinion issued December 14, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00846-CR
NO. 01-22-00847-CR
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LARRY TONY RASBERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case Nos. 1625395 & 1625396
MEMORANDUM OPINION
A jury found appellant, Larry Tony Rasberry, guilty of the felony offenses of
possession of a firearm by a felon1 and aggravated assault.2 After finding true the
allegations in two enhancement paragraphs that appellant had twice been previously
convicted of felony offenses, the jury assessed his punishment at confinement for
twenty-five years for the offense of possession of a firearm by a felon and at thirty
years for the offense of aggravated assault, to run concurrently. Appellant timely
filed notices of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw in
each appeal, along with a brief stating that the record in each case presents no
reversible error and the appeals are without merit and are frivolous. See Anders v.
California, 386 U.S. 738 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the records and supplying the Court with references to the records and
legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex.
Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the record in
each appeal and is unable to advance any grounds of error that warrant reversal. See
1
See TEX. PENAL CODE ANN. § 46.04(a), (e). Appellate cause no. 01-22-00846-CR,
trial court cause no. 1625396.
2
See id. §§ 22.01(a), 22.02(a), (b). Appellate cause no. 01-22-00847-CR, trial court
cause no. 1625395.
2
Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
Counsel has informed the Court that she provided appellant with a copy of the
brief, the motions to withdraw, and informed him of his right to examine the
appellate records and file a response to counsel’s Anders brief. Counsel has also
provided appellant with a form motion to access the appellate records.3 See Kelly v.
State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d
403, 408 (Tex. Crim. App. 2008). Appellant has not filed a response to his counsel’s
Anders brief.
We have independently reviewed the entire record in each appeal, and we
conclude that no reversible error exists in the records, there are no arguable grounds
for review, and the appeals are frivolous. See Anders, 386 U.S. at 744 (emphasizing
reviewing court—and not counsel—determines, after full examination of
proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763,
767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable
grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
3
This Court also notified appellant that counsel had filed an Anders brief and motions
to withdraw and informed appellant that he had a right to examine the appellate
record in each appeal and file a response to his counsel’s Anders brief. And this
Court provided appellant with a form motion to access the appellate records. See
Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman,
252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
3
App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines
whether arguable grounds exist by reviewing entire record). We note that appellant
may challenge a holding that there are no arguable grounds for an appeal in either
case by filing a petition for discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
Conclusion
We affirm the judgments of the trial court and grant appellant’s appointed
counsel’s motion to withdraw filed in each appeal.4 Attorney Cheri Duncan must
immediately send appellant the required notice and file a copy of the notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
motions as moot.
Julie Countiss
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
4
Appellant’s appointed counsel still has a duty to inform appellant of the result of the
appeals and that appellant may, on his own, pursue discretionary review in the Texas
Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim.
App. 1997).
4