Document Info

DocketNumber: 10-17-00128-CR

Filed Date: 8/1/2018

Status: Precedential

Modified Date: 8/2/2018

  •                                    IN THE
    TENTH COURT OF APPEALS
    No. 10-17-00128-CR
    ROY WAYNE GLENN,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 19th District Court
    McLennan County, Texas
    Trial Court No. 2016-1796-C1
    MEMORANDUM OPINION
    In a trial before the jury, Roy Wayne Glenn was convicted of two counts of
    aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(1); (2)(B)
    (West 2011). He was sentenced to life in prison for each count. The sentences were
    ordered to run consecutively.
    Glenn’s appellate attorney filed a motion to withdraw and an Anders brief in
    support of the motion to withdraw, asserting that the appeal presents no issues of
    arguable merit. See Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967).
    Counsel advised Glenn that counsel had filed the motion and brief pursuant to Anders
    and provided Glenn a copy of the record, advised Glenn of his right to review the record,
    and advised Glenn of his right to submit a response on his own behalf. Glenn submitted
    a response. Although the State had the opportunity to file a response to Glenn’s response
    and counsel’s brief, it did not file a response.
    Counsel asserts in the Anders brief that counsel has made a thorough review of the
    entire record, including voir dire, the evidentiary rulings that were made, the sufficiency
    of the evidence to support the conviction, the charge, the punishment phase of the trial,
    the trial court’s written judgment, and Glenn’s ability to hear the proceedings. After the
    review, counsel concludes there is no non-frivolous issue to raise in this appeal.
    Counsel's brief evidences a professional evaluation of the record for error, and we
    conclude that counsel performed the duties required of appointed counsel. See 
    Anders, 386 U.S. at 744
    ; High v. State, 
    573 S.W.2d 807
    , 812 (Tex. Crim. App. 1978); see also In re
    Schulman, 
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008).
    In his response to counsel’s Anders brief, Glenn challenges the sufficiency of the
    evidence by disputing the State’s evidence as presented and advancing another theory
    regarding why his DNA was found on the victim and asserts that the trial court, court
    reporter, and DNA analyst made various fundamental errors during the trial and
    afterward. The record does not support Glenn’s challenge or assertions.
    Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty
    Glenn v. State                                                                        Page 2
    to independently examine the record to decide whether counsel is correct in determining
    that an appeal is frivolous. See 
    Anders, 386 U.S. at 744
    ; Stafford v. State, 
    813 S.W.2d 503
    ,
    511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably
    persuade the court." McCoy v. Court of Appeals, 
    486 U.S. 429
    , 436, 
    108 S. Ct. 1895
    , 100 L.
    Ed. 2d 440 (1988).
    Having carefully reviewed the entire record, the Anders brief, and Glenn’s
    response, we have determined that this appeal is frivolous. See Bledsoe v. State, 
    178 S.W.3d 824
    , 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s Judgment of
    Conviction by Jury (Count One) signed on April 5, 2017 and Judgment of Conviction by
    Jury (Count Two) signed on April 5, 2017.
    Should Glenn wish to seek 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 must file a pro se petition for discretionary review. No substitute counsel will
    be appointed. Any petition for discretionary review must be filed within thirty days from
    the date of this opinion or the last timely motion for rehearing or timely motion for en
    banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any
    petition and all copies of the petition for discretionary review must be filed with the Clerk
    of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended
    eff. Sept. 1, 2011).   Any petition for discretionary review should comply with the
    requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P.
    Glenn v. State                                                                         Page 3
    68.4. See also In re 
    Schulman, 252 S.W.3d at 409
    n.22.
    Counsel's motion to withdraw from representation of Glenn is granted, and
    counsel is discharged from representing Glenn. Notwithstanding counsel’s discharge,
    counsel must send Glenn a copy of our decision, notify him of his right to file a pro se
    petition for discretionary review, and send this Court a letter certifying counsel's
    compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
    re 
    Schulman, 252 S.W.3d at 409
    n.22.
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Davis, and
    Justice Scoggins
    Affirmed
    Opinion delivered and filed August 1, 2018
    Do not publish
    [CRPM]
    Glenn v. State                                                                     Page 4