Leonard Eugene Durst v. the State of Texas

NUMBER 13-20-00298-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LEONARD EUGENE DURST, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Leonard Eugene Durst appeals a judgment adjudicating him guilty of
committing aggravated assault with a deadly weapon, a second-degree felony. See TEX.
PENAL CODE ANN. § 22.02(a), (b). The trial court sentenced Durst to five years’
imprisonment. 1 Durst’s court-appointed counsel filed an Anders brief stating that there
are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967).
We affirm.
I. BACKGROUND
In 2004, Durst pleaded “no contest” to aggravated assault with a deadly weapon.
The trial court placed Durst on deferred adjudication community supervision for eight
years. During the duration of his community supervision, Durst moved to Uganda for a
period of approximately fourteen years. The State filed a motion to adjudicate on October
10, 2007, after Durst had left the country, alleging three violations of the terms of his
community supervision. On May 1, 2020, after Durst returned to the country, the State
filed an amended motion to adjudicate alleging seven violations of his community
supervision, including committing additional offenses and failing to report. Durst pleaded
“true” to six of the violations. 2 The trial court found that Durst violated his terms of his
deferred adjudication community supervision, adjudicated him guilty, and sentenced him
to five years’ imprisonment. This appeal followed.
II. ANDERS BRIEF
Pursuant to Anders v. California, Durst’s court-appointed appellate counsel filed a
brief and a motion to withdraw with this Court, stating that his review of the record yielded
no grounds of reversible error upon which an appeal can be predicated. See id. Counsel’s
Aggravated assault with a deadly weapon carries a two-to-twenty-year sentence. TEX. PENAL
1
CODE ANN. § 12.33(a).
2 The alleged violations included: (1) theft of property, (2) possession of a controlled substance,
(3) failure to avoid injurious habits, (4) failing to report once per month, (5) failing to complete 240 hours of
community service restitution at a minimum of eight hours per month, (6) failing to attend and participate in
a Graduate Equivalency Degree (GED) program within 90 days of the judgement, and (7) failing to
successfully complete an anger management program. The State abandoned the first violation.
2
brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,
an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.
App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), Durst’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Durst’s counsel also informed this Court in writing that he:
(1) notified Durst that counsel filed an Anders brief and a motion to withdraw; (2) provided
Durst with copies of both pleadings; (3) informed Durst of his rights to file a pro se
response, to review the record prior to filing a response, and to seek discretionary review
in the Texas Court of Criminal Appeals if this Court finds that the appeal is frivolous; and
(4) provided Durst with a form motion for pro se access to the appellate record with
instructions to sign and file the motion with the court of appeals within ten days by mailing
it to the address provided. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20;
Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Durst
has been provided access to the appellate record. On January 4, 2021, Durst moved for
an extension to file his pro se response. However, an adequate time has passed, and
Durst has not filed a formal pro se response.
3
III. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed counsel’s brief, Durst’s letters, and the entire record,
and we have found nothing that would support a finding of reversible error. See 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
requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.
On September 16, 2020, Durst filed a letter3 with the Court suggesting that he did
not receive effective assistance of counsel from his “first” lawyer. 4 See Strickland v.
Washington, 466 U.S. 668, 687 (1984); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.
1983) (setting out standards on ineffective assistance of counsel claim for failure to call
witnesses). Durst claimed he requested evidence and witnesses be brought forward, but
his lawyer refused. Durst did not indicate what evidence or witnesses he was referring to,
nor is it clear from the record.
3 Although Durst has not filed a formal pro se response, we are construing his letter as such. The
Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of
appellate procedure in order to be considered. Rather, the response should identify for the court those
issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
4 Durst had two attorneys representing him during these proceedings: one during his plea for
deferred adjudication and another during his motion to adjudicate. It is unclear which attorney he is referring
to. However, “a defendant given deferred adjudication community supervision may raise issues related to
the plea proceeding only in an appeal taken when the supervision is first imposed.” Riles v. State, 452
S.W.3d 333, 335 (Tex. Crim. App. 2015). Thus, Durst can only challenge the representation of the attorney
who represented him during the motion to adjudicate. See id.
4A plea is not voluntary if it was only entered into due to ineffective assistance of
counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012); Stubbs v.
State, 533 S.W.3d 557, 567 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d). For a
defendant’s plea to be involuntary due to ineffective assistance of counsel, the defendant
must show: (1) that counsel’s advice was not within the range of competence demanded
of attorneys in criminal cases, and (2) but for counsel’s errors, there was a reasonable
probability that the defendant would not have pleaded guilty and would have gone to trial.
Ex parte Tomlinson, 295 S.W.3d 412, 419 (Tex. App.—Corpus Christi–Edinburg 2009,
no pet.); (citing Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999)). The
counsel’s ineffectiveness must be “so apparent from the record” for an appellant to prevail
on an ineffective assistance of counsel appeal. Freeman v. State, 125 S.W.3d 505, 506–
07 (Tex. Crim. App. 2003).
Durst made no showing of what errors his counsel allegedly made, nor has he
asserted he would not have otherwise pleaded “no contest” or “true,” respectively. See
Tomlinson, 295 S.W.3d at 419. Because there is a strong presumption that a trial
counsel’s conduct was reasonable and nothing in the record suggests otherwise, a claim
to the contrary would be frivolous. See Anders, 386 U.S.at 744; Tomlinson, 295 S.W.3d
at 419.
Furthermore, after reviewing the record, this Court cannot find any additional
issues upon which to raise a reasonable appeal. We agree with counsel that the record
presents no arguably meritorious grounds for appeal. See Anders, 386 U.S. at 744.
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IV. MOTION TO WITHDRAW
In accordance with Anders, Durst’s attorney asked this Court for permission to
withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d
at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no
pet.)). We grant counsel’s motion to withdraw. Within five days of the date of this Court’s
opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to
Durst and to advise him of his right to file a petition for discretionary review. 5 See TEX. R.
APP. P. 48.4; see also Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d
670, 673 (Tex. Crim. App. 2006).
V. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
24th day of June, 2021.
5 No substitute counsel will be appointed. If Durst seeks further review of this case by the Texas
Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file
a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty
days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc
reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review
must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary
review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
6