James Ray Sonntag v. State

IN THE
TENTH COURT OF APPEALS
No. 10-17-00405-CR
JAMES RAY SONNTAG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. CR15124
MEMORANDUM OPINION
Appellant James Ray Sonntag was found guilty by a jury of the offense of driving
while intoxicated. Sonntag elected to have the judge assess punishment. Sonntag
pleaded true to enhancement allegations that made him a habitual offender, and the trial
court sentenced him to thirty years’ incarceration. We will affirm the trial court’s
judgment.
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), Sonntag’s court-appointed appellate counsel filed a brief and motion to
withdraw with this Court, stating that his review of the record yielded no grounds of
error upon which an appeal can be predicated. Counsel’s 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) (“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 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), Sonntag’s counsel has carefully discussed why, under controlling authority, there
is no reversible error in the trial court’s judgment. Counsel has informed this Court that
he has: (1) examined the record and found no arguable grounds to advance on appeal;
(2) served a copy of the brief and counsel’s motion to withdraw on Sonntag; and (3)
informed Sonntag of his right to review the record and to file a pro se response.1 See
1Counsel has informed this Court that he has provided the appellate record to Sonntag. See Kelly v. State,
436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).
Sonntag v. State Page 2
Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman,
252 S.W.3d at 409 n.23.
Sonntag has filed a pro se response.2 See Schulman, 252 S.W.3d at 409. The issues
presented in his response are the same as the defense he raised at trial—that he was not
intoxicated. Sonntag argues that the dash-cam video taken on the day of his arrest shows
that he did not slur his words or have any balance problems. He also contends that the
blood alcohol level was incorrect. The jury, however, saw the dash-cam video and heard
the testimony of the forensic examiner who tested Sonntag’s blood. By its verdict, the
jury determined the evidence was sufficient to support Sonntag’s guilt of driving while
intoxicated beyond a reasonable doubt.
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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record
and counsel’s brief and have found nothing that would arguably support an appeal. 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
2
The 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.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696–97 (Tex. App.–Waco 1997, no pet.)).
Sonntag v. State Page 3
requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. The
judgment of the trial court is therefore affirmed.
In accordance with Anders, Sonntag’s attorney has asked this Court for permission
to withdraw as counsel for Sonntag. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also
Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.
App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must
withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.”)). 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 Sonntag and to advise him of his right to file a
petition for discretionary review.3 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).
REX D. DAVIS
Justice
3No substitute counsel will be appointed. Should Sonntag 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. Any petition for discretionary review must be filed
within thirty days from the date of this opinion or from the date the last timely motion for rehearing was
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. 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. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.
Sonntag v. State Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2018
Do not publish
[CRPM]
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