Derrick Massey v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00096-CR
DERRICK MASSEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. F-2014-1164-B
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MEMORANDUM OPINION1
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Appellant Derrick Massey appeals his third-degree felony conviction and
forty-five year sentence for driving while intoxicated (DWI).2 We affirm.
A grand jury indicted appellant with committing DWI, and the indictment
alleged, for jurisdictional and enhancement purposes, that he had four prior
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 49.04(a), .09(b)(2) (West Supp. 2016).
convictions for that offense, including two felonies.3 Appellant retained counsel.
At trial, he pled not guilty but pled true to the jurisdictional allegations that he had
been convicted of two prior DWIs. After receiving the parties’ evidence and
arguments, a jury deliberated for less than an hour and found appellant guilty.
Appellant chose the trial court to decide his punishment, and he pled true to the
indictment’s felony enhancement paragraphs. After receiving more evidence and
arguments, the trial court sentenced appellant to forty-five years’ confinement.
The trial court appointed counsel to represent appellant on appeal, and he
brought this appeal.
Appellant’s appointed appellate counsel has filed a motion to withdraw and
a brief under Anders v. California, representing that there are “no non-frivolous
grounds for appeal.” 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967).
Counsel’s brief and motion meet the requirements of Anders by presenting a
professional evaluation of the record and demonstrating why there are no
arguable grounds for relief. See id.; In re Schulman, 252 S.W.3d 403, 406–12
(Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders). We
gave appellant an opportunity to file a pro se response to counsel’s brief, and he
did so. The State has not filed a brief.
3
Two of appellant’s prior DWI convictions served to qualify this offense as
a third-degree felony, and his two prior DWI felony convictions raised his
punishment range for this offense to a minimum of twenty-five years’
confinement. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2016),
§ 49.09(b)(2).
2
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that an appeal is frivolous and fulfills the requirements of Anders, we
must independently examine the record. See Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Only then may we grant counsel’s motion to
withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record, counsel’s brief, and appellant’s
pro se response. We agree with counsel that this appeal is frivolous and without
merit; we find nothing in the record that might arguably support the 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). Accordingly, we
grant counsel’s motion to withdraw and affirm the trial court’s judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 30, 2017
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